                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                          November 26, 2019



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
 In the Matter of the                                                  No. 52642-5-II
 Personal Restraint of


 JAMES EDWARD MITCHELL,                                          UNPUBLISHED OPINION


                                   Petitioner.


           MAXA, C.J. – In this personal restraint petition (PRP), James Mitchell seeks relief from

personal restraint imposed following his conviction for the first degree murder of Linda

Robinson. Robinson was stabbed to death in her apartment in 1993. The case remained open

until 2013, when DNA testing of blood from the scene resulted in a match to Mitchell’s DNA

profile.

           We hold that (1) the trial court did not err in excluding other suspect evidence because

the evidence Mitchell would have offered was too speculative to raise doubt about his guilt; (2)

the prosecutor’s statements during closing argument that Mitchell challenges did not constitute

misconduct because they were reasonable inferences from the evidence; (3) the trial court did not

violate Mitchell’s confrontation right by allowing forensic officers to read their 1993

investigation reports because the officers testified at trial; (4) Mitchell’s trial counsel was not

ineffective in failing to renew efforts to introduce other suspect evidence, failing to object to the

prosecutor’s statements in closing arguments, and failing to request a jury instruction regarding
No. 52642-5-II


spoliation of evidence; (5) cumulative error did not deprive Mitchell of a fair trial, and (6)

Mitchell’s appellate counsel did not provide ineffective assistance for failing to raise these issues

in his direct appeal.

        Accordingly, we deny Mitchell’s PRP.

                                               FACTS

        In 2015, the State charged Mitchell with first degree murder for the stabbing death of

Linda Robinson. State v. Mitchell, No. 48810-8-II, slip op. at 2 (Wash. Ct. App. Aug. 29, 2017)

(unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2048810-8-

II%20Unpublished%20Opinion.pdf, review denied, 189 Wn.2d 1041 (2018). Robinson’s death

had occurred over 20 years earlier, in 1993.

Robinson’s Death and Crime Scene Investigation

        On the night of February 6, 1993, Robinson’s young nieces and nephew were spending

the night at Robinson’s apartment in Spanaway. The children were in the living room. Around

10:30 PM that night, Robinson was talking on the telephone with her friend George Caldwell.

Robinson told Caldwell that somebody was at the door. Caldwell heard Robinson talking to

another person and said Robinson sounded “submissive,” telling the person “okay, okay.”

Report of Proceedings (RP) (Feb. 4, 2016) at 655. Then the connection went dead.

        Around 11:00 PM, the oldest child was awakened by the sound of the apartment’s smoke

alarm. She went to the kitchen where she saw food burning on the stove and Robinson lying on

the kitchen floor surrounded by blood. A neighbor called the police.

        The autopsy showed that Robinson had 10 stab wounds in her back. Multiple stab

wounds penetrated her chest cavity and punctured her lung and liver, and she had defensive




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No. 52642-5-II


wounds on her hands and forearms and superficial cuts to her chest and torso. Law enforcement

did not find a murder weapon at the scene.

       Police officers and forensic investigators searched Robinson’s apartment for evidence.

and collected blood evidence. There was blood on Robinson and around the kitchen, including a

large blood smear on the refrigerator. There was a small smear of blood on the hallway wall

across from the bathroom door. There were also blood spatters in front of a nightstand in

Robinson’s bedroom. The telephone cord, which had been ripped out of the wall, and a jacket

from the bedroom appeared to have blood on them.

       At the time, none of the evidence was tested for DNA because the science had not yet

been developed to allow for DNA analysis of blood.

Discovery of Bloody Knife and Sawed-Off Shotgun

       On either February 6, the day of Robinson’s murder, or February 7, a bloody knife and a

sawed-off shotgun were found in Lakewood. The location where the items were found was not

near the scene of Robinson’s murder. James O’Hern, the detective leading Robinson’s murder

investigation, noted the discovery in his investigation notebook under a different incident

number than the one assigned to Robinson’s murder.

       A sheriff’s office property report noted that the items should be processed for fingerprints

and possible blood on the knife blade. It is unclear whether any follow up was done regarding

the knife or the shotgun.

Other Suspect Investigation

       Robinson had been seeing a few men around the time of her death. One of these men

was Lee Chandler. Chandler was temporarily separated from his wife and he and Robinson




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No. 52642-5-II


occasionally got together to smoke crack cocaine. They had sex a few times but were primarily

just friends.

        A few weeks after the murder, Robinson’s friend Mark McGruder was interviewed.

McGruder occasionally smoked with Robinson and had also lived with Chandler for a time.

McGruder stated that Chandler used Robinson as a runner for crack. Robinson and Chandler

occasionally loaned each other money for drugs. When Chandler smoked he would become

scary and paranoid. But McGruder denied ever seeing Chandler get violent. Chandler and

McGruder one time had gotten into a tussle, but McGruder said that Chandler did not try to hurt

him.

        Investigators interviewed Chandler a few times in connection with Robinson’s death.

Chandler told investigators that he had been arrested once before for a domestic violence assault

against his wife, losing his temper and striking her after witnessing her attempt to buy drugs just

after completing a drug treatment program. Chandler also said that he had once assaulted a man

staying in his residence during a dispute over payment of an electric bill. Chandler denied any

involvement in Robinson’s death.

        Chandler became the focus of the investigators’ attention. He took a voluntary polygraph

test, which he failed. The polygraph showed “significant emotional disturbances indicative of

deception” in response to the questions regarding his involvement with Robinson’s death. PRP,

Attach. E at 2.

        Because Chandler was involved in illegal drug activity with Robinson, and because he

failed the polygraph, he became the number one suspect in O’Hern’s mind. Chandler was

booked into jail on unrelated warrants after one of the interviews. However, investigators never




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No. 52642-5-II


obtained any evidence that would allow them to arrest Chandler. Robinson’s murder

investigation remained unsolved.

Reopening of Case

       In 2013, another detective reopened Robinson’s case and arranged to have the blood

evidence tested for DNA. Using a control sample of Robinson’s blood from her autopsy,

forensic scientists created Robinson’s DNA profile. They then tested the blood samples taken

from the bedroom, the jacket, the telephone cord, and Robinson’s jeans. Several samples

contained mixed DNA from both Robinson and an unknown person. Blood found on a bedroom

dresser contained DNA that matched the unknown person.

       The DNA profile for that the unknown person matched Mitchell’s DNA profile. Mitchell

was located in Florida, where he was arrested on charges of first degree premediated murder and

brought to Washington for trial.

State’s Pretrial Evidentiary Motions

       The State filed pretrial motions to exclude other suspect evidence, admit police reports

and property sheets drafted in 1993 by forensic officers, and exclude evidence of the knife and

shotgun found near the time of the murder.

       The trial court granted the State’s motion to exclude other suspect evidence because

Mitchell failed to establish a connection between another suspect and the crime that would

clearly point to a person other than the defendant as the perpetrator. But the trial court stated that

Mitchell could re-litigate the issue based on evidence produced at trial.

       Mitchell objected to the testimony of the forensic examiners on hearsay and confrontation

clause grounds. The trial court ruled that the police reports and property sheets drafted by




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No. 52642-5-II


forensic officers were admissible under ER 803(a)(5) as prior recollections recorded, assuming a

proper foundation was laid at trial.

       Finally, the trial court denied the State’s motion to exclude evidence of the knife and the

shotgun. The trial court ruled that the evidence was relevant because Robinson was killed with a

knife but the knife was never found, gunfire occurred on the night of the murder, the knife and

the shotgun were found the day after the murder, there was apparently blood on the knife, and

the request to have the knife tested for fingerprints apparently was never satisfied.

Trial Testimony

       Forensic investigators Hilding Johnson and Ted Schlosser testified regarding their

participation in the 1993 investigation of Robinson’s murder. Neither investigator independently

recalled the crime scene at trial. Both investigators testified by reading directly from their 1993

reports.

       After O’Hern testified that he had interviewed many of Robinson’s friends and

acquaintances after her death but failed to identify a suspect, defense counsel asked the trial court

to revisit its ruling on other suspect evidence. The trial court ruled that Mitchell could inquire

about the investigation of Chandler.

       On cross-examination, O’Hern testified that he interviewed Chandler several times and

finally took a taped statement, and that he also interviewed Chandler’s wife. And he kept a copy

of Chandler’s driver’s license on top of the file on Robinson’s murder until he retired.

       The forensic scientist who completed the DNA testing on items from the crime scene

testified that blood on the jeans Robinson was wearing when she was found was consistent with

both Robinson and Mitchell’s DNA profiles. A significant amount of Mitchell’s DNA was also




                                                  6
No. 52642-5-II


on a jacket found in Robinson’s apartment and on the telephone cord. Mitchell’s DNA also was

found in samples from Robinson’s bedroom vanity and two envelopes found at the scene.

       Mitchell testified at trial that he knew Robinson and had been at her apartment a few

times. The last time he was there some kids were asleep in the living room. He said that while

he was with Robinson, she answered a knock at the door. An agitated man entered the apartment

and tried to hit Robinson and Mitchell. Mitchell said that Robinson tried to get the man to leave

and threatened to call the police, but the man stayed and exchanged blows with Mitchell.

       According to Mitchell, the man left after Robinson again told him to leave but said that

he would be back. Then Mitchell followed Robinson to her bedroom and looked at himself in

her dresser mirror. He later noticed that his hand was bleeding. Mitchell left the apartment and

did not see Robinson again. He denied killing Robinson.

Closing Arguments and Verdict

       During closing argument, the prosecutor stated regarding the DNA evidence from the

blood samples that Mitchell’s blood was mixed with Robinson’s blood, “which means they bled

at the same time.” RP (Feb. 22, 2016) at 1081. The prosecutor repeated several times

throughout the remainder of closing argument and rebuttal the idea that the mixed blood samples

meant that Mitchell and Robinson bled at the same time.

       The prosecutor also stated that Mitchell’s testimony “simply isn’t believable, and you

shouldn’t believe it, and the reason you shouldn’t believe it is because it’s not true.” RP (Feb.

22, 2016) at 1096. During rebuttal, the prosecutor told the jury that “What Mr. Mitchell told you

was not what actually happened.” RP (Feb. 22, 2016) at 1142.

       The jury found Mitchell guilty of first degree premeditated murder. Mitchell appealed,

and this court affirmed his conviction. He then filed this PRP.




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No. 52642-5-II


                                            ANALYSIS

A.     PRP PRINCIPLES

       We will grant appropriate relief when petitioners establish that they are under restraint

that is unlawful for one of certain specified reasons. RAP 16.4(a)-(c). To prevail in a PRP, a

petitioner must establish (1) a constitutional error that resulted in actual and substantial

prejudice, or (2) a fundamental defect of a nonconstitutional nature that inherently resulted in a

complete miscarriage of justice. In re Pers. Restraint of Dove, 196 Wn. App. 148, 154, 381 P.3d

1280 (2016). The petitioner must make this showing by a preponderance of the evidence. Id.

       However, a PRP is not a substitute for a direct appeal, and the availability of collateral

relief is limited. Id. at 153. “ ‘Relief by way of a collateral challenge to a conviction is

extraordinary, and the petitioner must meet a high standard before this court will disturb an

otherwise settled judgment.’ ” Id. (quoting In re Pers. Restraint of Coats, 173 Wn.2d 123, 132,

267 P.3d 324 (2011)).

       RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to

support the factual allegations in the PRP. In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503,

384 P.3d 591 (2016). The petitioner must show that he has competent, admissible evidence to

establish facts that would entitle him to relief. In re Pers. Restraint of Yates, 177 Wn.2d 1, 18,

296 P.3d 872 (2013). Conclusory allegations are insufficient. Wolf, 196 Wn. App. at 503. In

addition, the factual allegations must be based on more than speculation and conjecture. Yates,

177 Wn.2d at 18.

       We have three options when considering a PRP. First, if a petitioner does not show

actual prejudice for constitutional errors or a fundamental defect resulting in a miscarriage of

justice for nonconstitutional errors, the petition must be dismissed. Yates, 177 Wn.2d at 17.




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No. 52642-5-II


Second, if the petitioner has proved actual prejudice or a fundamental defect resulting in a

miscarriage of justice, the court should grant the PRP. Id. at 18. Third, if the petitioner makes at

least a prima facie showing but the merits of his or her contentions cannot be resolved solely on

the record, the court should remand for a full hearing on the merits or a reference hearing. Id.

B.     OTHER SUSPECT EVIDENCE

       Mitchell claims that the trial court denied his constitutional right to present a defense

when the court excluded evidence that investigators suspected Chandler during the initial 1993

investigation. We disagree.1

       1.    Legal Principles

       Other suspect evidence is relevant if that evidence tends to connect someone other than

the defendant with the charged crime. State v. Franklin, 180 Wn.2d 371, 381, 325 P.3d 159

(2014). Before the trial court may admit other suspect evidence, “some combination of facts or

circumstances must point to a nonspeculative link between the other suspect and the charged

crime.” Id. The evidence must have a “logical connection to the crime.” Id. However,

“[e]vidence establishing nothing more than suspicion that another person might have committed

the crime [i]s inadmissible.” Id. at 380.

       The question for admissibility is whether the offered evidence tends to create a

reasonable doubt regarding the defendant’s guilt; the evidence need not establish the other

suspect’s guilt beyond a reasonable doubt. Id. at 381. In addition, the focus must be on the

probative value of the other suspect evidence, not on the strength of the State’s case. Id. at 378-




1
  As a threshold matter, the State argues that Mitchell did not preserve this issue for appeal
because the trial court’s pretrial ruling on other suspect evidence was tentative, leaving Mitchell
free to raise the issue later during trial. We reject this argument because the trial court’s pretrial
ruling was not tentative.


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No. 52642-5-II


79. Other suspect evidence can have a logical connection to the issues in the case even if the

State’s evidence strongly supports the defendant’s guilt. Id. at 382.

       We review a trial court’s exclusion of other suspect evidence for an abuse of discretion.

State v. Wade, 186 Wn. App. 749, 765, 346 P.3d 838 (2015).

       2.   Analysis

       Mitchell identifies extensive other suspect evidence that he would have presented but for

the trial court’s exclusion of such evidence:

       (1) Robinson and Chandler smoked crack together and had sex a few times in the months

prior to Robinson’s death when Chandler was separated from his wife;

       (2) Chandler used Robinson as a “runner” for crack;

       (3) Chandler was known as being violent with dealers;

       (4) Chandler offered to pay Robinson for sex;

       (5) Chandler owed Robinson money;

       (6) Chandler was the focus of investigators’ attention;

       (7) O’Hern believed that Chandler, of all those interviewed, was most likely involved

with Robinson’s death;

       (8) Chandler was the number one suspect in O’Hern’s mind because he was supplying

Robinson with dope and could be violent with suppliers;

       (9) Chandler would get scary and paranoid when he smoked crack;

       (10) Chandler would be violent toward McGruder when Chandler perceived McGruder

getting in the way of Chandler’s having a sexual relationship with Robinson;

       (11) Chandler and Robinson borrowed money from each other to buy drugs; and




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No. 52642-5-II


       (12) Chandler knew the location of Robinson’s new apartment and the two had been

recently spending time together there.

       But further investigation failed to uncover any evidence connecting Chandler to the

murder. Chandler repeatedly denied having anything to do with Robinson’s death, and there was

no evidence that he had ever been violent toward her. Although Chandler knew the location of

Robinson’s new apartment, there was no evidence showing that Chandler was at or near the

apartment on the night of the murder. Chandler told investigators that the last time he had seen

or spoken to Robinson was roughly three weeks before the murder. And none of the extensive

blood evidence that was tested in 2013 implicated Chandler.

       In addition, some of the evidence on which Mitchell relies would have been inadmissible

at trial. McGruder died in 2010, a few years before trial. Anything he told law enforcement

would have been hearsay. See ER 802, 804(b) (no applicable hearsay exception based on

McGruder’s unavailability). And polygraph test results generally are inadmissible and cannot be

introduced as other suspect evidence. State v. Thomas, 150 Wn.2d 821, 860, 83 P.3d 970 (2004).

       We conclude that evidence of O’Hern’s suspicions about Chandler were not enough to

raise a reasonable doubt about whether Mitchell killed Robinson because there was no

nonspeculative link between Chandler and the charged crime. Accordingly, we hold that the trial

court did not abuse its discretion in excluding evidence that Chandler was a suspect.

C.     PROSECUTORIAL MISCONDUCT

       Mitchell argues that prosecutorial misconduct deprived him of a fair trial because the

prosecutor’s statements during closing argument and rebuttal improperly (1) stated facts not in

evidence by telling the jury that Mitchell and Robinson bled at the same time, and (2) expressed

a personal opinion about the credibility of Mitchell’s testimony. We disagree.




                                                11
No. 52642-5-II


       1.    Legal Principles

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

prosecutor’s conduct was both improper and prejudicial. In re Pers. Restraint of Glasmann, 175

Wn.2d 696, 704, 286 P.3d 673 (2012). In assessing whether a prosecutor’s closing argument

was improper, we recognize that the prosecutor has “wide latitude to argue reasonable inferences

from the evidence, including evidence respecting the credibility of witnesses.” State v.

Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). However, it is improper for the

prosecutor to argue facts that are not in evidence. Glasmann, 175 Wn.2d at 704-05.

       To establish prejudice, the defendant must show a substantial likelihood that the

misconduct affected the jury verdict. Thorgerson, 172 Wn.2d at 442-43. When analyzing

prejudice, we do not look at the alleged improper remarks “in isolation, but in the context of the

total argument, the issues in the case, the evidence, and the instructions given to the jury.” State

v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).

       When the defendant fails to object at trial, “the defendant is deemed to have waived any

error, unless the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d

653 (2012). The defendant must show that (1) no curative instruction would have eliminated the

prejudicial effect, and (2) the misconduct resulted in prejudice that had a substantial likelihood of

affecting the verdict. Id. at 761.

       2.    Arguing that Mitchell and Robinson Bled at the Same Time

       During closing argument, the prosecutor stated

       He [Mitchell] was there – he was there that night, and he bled that night; and he
       didn’t just bleed a little bit, and he didn’t just bleed in one place. He bled far and
       wide in that apartment, and his blood was mixed with hers which means they bled
       at the same time.



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No. 52642-5-II



RP (Feb. 22, 2016) at 1081 (emphasis added). The prosecutor stated that the fact that Mitchell’s

blood was found on Robinson’s jeans and on a jacket in her apartment was significant because it

was “transfer blood from touching.” RP (Feb. 22, 2016) at 1087-88. The prosecutor argued that

       If you’ve just murdered somebody with, what, twelve, fourteen stab wounds, your
       hands are going to be bloody with your blood and her blood; so it’s significant that
       the blood on the jacket is both transfer blood and mixed blood because it shows not
       only did Mr. Mitchell bleed there that night, he bled at the same time as Linda; and
       the reason that he bled at the same time as Linda is that he murdered Linda with a
       knife.

RP (Feb. 22, 2016) at 1088 (emphasis added). The prosecutor continued later on that

       We know that [Mitchell] got cut because he bled, and he bled at the exact same
       time that she did, and we know when she bled. She bled when she was murdered.
       He bled at the same time because he was the murderer, and he left his blood in the
       bedroom and on the phone cord and on the back of Linda Robinson’s pants.

RP (Feb. 22, 2016) at 1100 (emphasis added). Finally, the prosecutor argued that, though

memories faded over time and could be biased, DNA evidence was more objective.

       [T]he DNA of the killer[,] and we know it’s the killer because of where it was
       deposited away from the body, on the back of the body, in the bedroom, how it was
       deposited, . . . [,] and when it was deposited, the same time that Linda Robinson
       bled, mixed with her blood. She bled that night when she was murdered, and Mr.
       Mitchell’s blood mixed with hers because he’s the one who murdered her.

RP (Feb. 22, 2016) at 1143-44 (emphasis added). Defense counsel did not object to any of these

arguments.

       Mitchell emphasizes that no witness testified that the presence of mixed DNA in a blood

sample proves that the two people bled at the same time or that recently dried blood cannot mix

with fresh blood. He claims that because this was a technical scientific matter beyond the

common knowledge of jurors, expert testimony would have been required to establish that blood

containing mixed DNA meant that two people bled at the same time. Mitchell argues that in the

absence of such evidence, the prosecutor’s statements were improper.



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No. 52642-5-II


        Whether the presence of mixed DNA in a blood sample means that two people bled at the

same time certainly could be the subject of expert testimony. But it also is reasonable to infer

that two people bled at the same time when their DNA is mixed in a blood sample. Here, the

evidence showed that there was blood in multiple locations and there was an indication that

Robinson and her attacker struggled. The prosecutor made a reasonable inference from the

evidence that in the course of a struggle, both Robinson and Mitchell were cut and bled at the

same time.

        We hold that these arguments were not improper and did not constitute prosecutorial

misconduct.

        3.    Personal Opinion that Mitchell’s Testimony was not Credible

        During closing argument, the prosecutor stated, “So, Mr. Mitchell’s testimony isn’t

consistent with itself. It’s shifted around. It isn’t consistent with what other witnesses told you,

and it simply isn’t believable, and you shouldn’t believe it, and the reason you shouldn’t believe

it is because it’s not true.” RP (Feb. 22, 2016) at 1096. During rebuttal, the prosecutor stated

that “[w]hat Mr. Mitchell told you was not what actually happened.” RP (Feb. 22, 2016) at

1142.

        Mitchell argues that the prosecutor impermissibly expressed a personal opinion as to

Mitchell’s credibility when the prosecutor stated that Mitchell had lied during his testimony.

        A prosecutor cannot express a personal opinion regarding a witness’s credibility or the

defendant’s guilt. State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014). However, a

prosecutor may argue that the defendant is not telling the truth if the prosecutor refers to specific

evidence, including the defendant’s own testimony, that supports an argument that the defendant

has lied. State v. Copeland, 130 Wn.2d 244, 291, 922 P.2d 1304 (1996). This holding is




                                                 14
No. 52642-5-II


consistent with the prosecutor’s latitude to draw and express reasonable inferences from the

evidence. Id. at 290-91.

       The prosecutor’s remarks here were an explanation of the evidence rather than an attempt

to give the jury a personal opinion on Mitchell’s credibility or guilt. Mitchell’s testimony about

being in Robinson’s apartment on the night she was murdered was inconsistent with most of the

other evidence offered at trial. As a result, the prosecutor’s argument that Mitchell’s testimony

was not believable was based on the evidence rather than on his personal opinion.

       In addition, defense counsel failed to object to these statements at trial, and Mitchell has

not established that these remarks were “so flagrant and ill intentioned that an instruction could

not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61.

       We hold that these arguments were not improper and did not constitute prosecutorial

misconduct.

D.     CONFRONTATION RIGHT

       Mitchell argues that the trial court’s ruling under ER 803(a)(5) allowing investigating

officers Johnson and Schlosser to read from their 1993 reports violated his right to confront

witnesses against him because they had no independent recollection of their investigation of

Robinson’s death. We disagree.

       1.     Legal Principles

       Under ER 803(a)(5),

       A memorandum or record concerning a matter about which a witness once had
       knowledge but now has insufficient recollection to enable the witness to testify
       fully and accurately, shown to have been made or adopted by the witness when the
       matter was fresh in the witness’ memory and to reflect that knowledge correctly [is
       not excluded by the hearsay rule]. If admitted, the memorandum or record may be
       read into evidence but may not itself be received as an exhibit unless offered by an
       adverse party.




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No. 52642-5-II


The issue here is whether admission of testimony under this rule violated Mitchell’s

confrontation rights.

       Under the Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington Constitution, accused persons have the right to confront the witnesses against

them. The confrontation clauses in both constitutions provide the same right of defendants to

confront witnesses. State v. Lui, 179 Wn.2d 457, 468-70, 315 P.3d 493 (2014). As a result, we

analyze a defendant’s right to confront witnesses under the Sixth Amendment. Id. at 470. We

review confrontation clause challenges de novo. State v. Burke, 6 Wn. App. 2d 950, 964, 431

P.3d 1109 (2018).

       The confrontation right applies to witnesses, and a witness is a person who gives

testimony. Lui, 179 Wn.2d at 480 (citing Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004)). Therefore, the confrontation clause generally bars the

admission of “testimonial statements” made by a nontestifying witness. State v. Jasper, 174

Wn.2d 96, 109, 271 P.3d 876 (2012) (citing Crawford, 541 U.S. at 68). In Crawford, the Court

determined that when out-of-court testimonial statements were at issue, the only way to ensure

the reliability of the statement is an in-court confrontation of the witness. 541 U.S. at 68-69.

Accordingly, the Court held that out-of-court testimonial statements were inadmissible unless the

defendant had a prior opportunity to cross-examine the out-of-court speaker. Id.

       2.   Analysis

       At trial, Johnson and Schlosser testified regarding their participation in the 1993

investigation of Robinson’s murder. Neither investigator independently recalled the crime scene

at trial. Both investigators testified by reading directly from their 1993 reports. Mitchell argues

that because the officers testified that they had no independent recollection of their investigation




                                                 16
No. 52642-5-II


of the crime scene, they did not testify in a manner sufficient to satisfy the confrontation clause

and the trial court therefore erred in allowing them to read their reports to the jury.

       In State v. Thach, the defendant argued that Crawford impacted the admissibility of a

prior inconsistent statement under ER 801(d)(1)(i). 126 Wn. App. 297, 309, 106 P.3d 782

(2005). This court held that Crawford had no bearing on the admissibility of the statement under

ER 801(d)(1)(i) because in Crawford the Court stated that “the confrontation clause is not

implicated when the declarant is available for cross-examination at trial.” Thach, 126 Wn. App.

at 309. The Court in Crawford recognized this distinction: “[W]hen the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his

prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the

declarant is present at trial to defend or explain it.” 541 U.S. at 59 n.9.

       In State v. Price, our Supreme Court held that admission of a child’s out-of-court

statements did not violate the confrontation clause when the child testified at trial, even though

she did not remember the events at issue or making the statements. 158 Wn.2d 630, 650, 146

P.3d 1183 (2006). The court emphasized that because the child testified at trial, she confronted

the defendant face to face and the jury was able to evaluate her demeanor and her testimony. Id.

The court concluded that “a witness’s inability to remember does not implicate Crawford nor

foreclose admission of pretrial statements.” Id.

       Mitchell contends that Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527,

174 L. Ed. 2d 314 (2009) compels a different result. In Melendez-Diaz, the Court held that the

affidavits of state laboratory analysts identifying material seized by the police as cocaine were

testimonial statements and the analysts were “witnesses” for purposes of the Sixth Amendment.

Id. at 311. Mitchell argues that because the forensic reports here were also testimonial




                                                   17
No. 52642-5-II


statements, prepared for the primary purpose of investigating and prosecuting a crime, the trial

court erred in allowing Johnson and Schlosser to read their reports into evidence without any

independent recollection of the investigation.

       Mitchell’s argument appears to conflate a witness’s lack of memory with unavailability.

However, neither Crawford nor Melendez-Diaz hold that the confrontation clause requires

testifying witnesses to have a certain level of recall before their prior statements can be admitted.

Here, Mitchell was afforded an opportunity to confront Johnson and Schlosser at trial because

they were present to testify. Their lack of independent memory does not affect the admissibility

of their testimony. See Price, 158 Wn.2d at 650.

       We hold that allowing the officers to read from their reports under ER 803(a)(5) did not

implicate Mitchell’s rights under the confrontation clause.

E.     INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

       Mitchell argues that defense counsel provided ineffective assistance for failing to (1)

renew efforts to introduce other suspect evidence, (2) object to the prosecutor’s statements in

closing argument and rebuttal, and (3) request a spoliation instruction. We disagree.

       1.    Legal Principles

       Ineffective assistance of counsel is a constitutional error, arising from the Sixth

Amendment to the United States Constitution and article I, section 22 of the Washington

Constitution. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on an

ineffective assistance claim, the defendant must show both that (1) defense counsel’s

representation was deficient and (2) the deficient representation prejudiced the defendant. Id. at

457-58. Representation is deficient if, after considering all the circumstances, it falls below an

objective standard of reasonableness. Id. at 458. Prejudice exists if there is a reasonable




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probability that, except for counsel’s errors, the result of the proceeding would have been

different. Id.

        We apply a strong presumption that defense counsel’s performance was reasonable. Id.

Counsel’s conduct is not deficient if it was based on what can be characterized as legitimate trial

strategy or tactics. Id. To rebut the strong presumption that counsel’s performance was

effective, “the defendant bears the burden of establishing the absence of any ‘conceivable

legitimate tactic explaining counsel’s performance.’ ” State v. Grier, 171 Wn.2d 17, 42, 246

P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

        The “reasonable probability” standard for prejudice in an ineffective assistance of

counsel claim on direct appeal is not precisely the same as the “actual and substantial prejudice”

standard in a PRP. In re Pers. Restraint of Crace, 174 Wn.2d 835, 842, 280 P.3d 1102 (2012).

However, a petitioner who presents a successful ineffective assistance of counsel claim

necessarily establishes actual and substantial prejudice for purposes of collateral relief. Id. at

846-47.

        2.   Failure to Re-Litigate Admission of Other Suspect Evidence

        Mitchell argues his trial counsel was ineffective for failing to renew efforts to introduce

other suspect evidence implicating Chandler after Mitchell testified that another man started a

fight with him in Robinson’s apartment.

        Here, the trial court granted the State’s motion to exclude other suspect evidence, but

stated that Mitchell could re-litigate the issue based on evidence produced at trial. Defense

counsel did in fact ask the trial court to revisit its ruling after O’Hern testified that he had

interviewed many of Robinson’s friends and acquaintances after her death but had failed to




                                                   19
No. 52642-5-II


identify a suspect. The court ruled that Mitchell was allowed to question O’Hern about his

investigation of Chandler.

       On cross-examination, O’Hern testified that he interviewed Chandler several times and

finally took a taped statement, and that he also interviewed Chandler’s wife. And he kept a copy

of Chandler’s driver’s license on top of Robinson’s file until he retired.

       Mitchell contends that defense counsel should have raised the issue again after his own

testimony that on the last night he saw Robinson at her apartment, a man arrived and started a

fight with him. He apparently claims that the man could have been Chandler. However,

Mitchell has not shown that the trial court would have admitted any additional other suspect

evidence. As discussed above, the additional evidence Mitchell references does not show a

nonspeculative link between Chandler and the crime.

       Regarding the second prong of an ineffective assistance analysis, Mitchell fails to show a

reasonable probability that the outcome of the trial would have been different had the other

suspect evidence been admitted. As noted above, defense counsel did elicit evidence that

Chandler was a suspect. There is no indication that additional evidence would have affected the

outcome of the trial.

       In addition, there was significant DNA evidence implicating Mitchell at trial – his blood

was identified on the jeans Robinson was wearing when she was found, on a jacket in her

apartment, in her bathroom, and on the telephone cord that had been ripped out of the wall. And

Mitchell’s own testimony seemed to place him at Robinson’s apartment on the night she died.

Even if more extensive evidence about Chandler as a possible suspect was admitted, there is no

indication that the jury would have ignored the strong evidence that Mitchell had killed

Robinson.




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No. 52642-5-II


         Accordingly, we hold that Mitchell’s ineffective assistance of trial counsel claim fails on

this basis.

         3.   Failure to Object to Prosecutor’s Comments in Closing and Rebuttal

         Mitchell argues that he received ineffective assistance of trial counsel based on counsel’s

failure to object to the statements the prosecutor made during closing argument and rebuttal

regarding the prosecutor’s inference that Robinson and Mitchell bled at the same time and that

Mitchell’s testimony was not credible.

         As discussed above, these comments were not improper. And “[t]he decision of when or

whether to object is a classic example of trial tactics,” and rarely constitutes a failure of counsel

justifying reversal. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Therefore,

we hold that trial counsel was not ineffective for failing to object to these comments.

         4.   Failure to Request Spoliation Instruction

         Mitchell argues his trial counsel was ineffective for failing to request a spoliation

instruction regarding the bloody knife and sawed-off shot gun found near the time of Robinson’s

death.

         To prevail, Mitchell must show that the trial court would likely have given a spoliation

instruction had his counsel requested it. See State v. Classen, 4 Wn. App. 2d 520, 536, 422 P.3d

489 (2018). In general, criminal defendants are entitled to a jury instruction on their theory of

the case. State v. Henderson, 192 Wn.2d 508, 512, 430 P.3d 637 (2018). Jury instructions are

sufficient if, viewed as a whole, they allow the defendant to argue his or her theory of the case

and accurately inform the jury of the applicable law. Id.

         “Spoliation is the intentional destruction of evidence.” Tavai v. Walmart Stores, Inc., 176

Wn. App. 122, 134, 308 P.3d 811 (2013). In determining whether to give a requested spoliation




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No. 52642-5-II


jury instruction, we consider “the potential importance or relevance of the missing evidence” and

“the culpability or fault of the adverse party.” Id. at 135. The importance of the missing

evidence depends on the facts of each case. Id. Regarding culpability, we consider whether the

party has an innocent explanation for the missing evidence or whether the party’s bad faith or

conscious disregard led to the loss of the evidence. Id. Further, we consider if the party violated

some duty to preserve the evidence. Id.

       Here, O’Hern testified that he made a notation dated February 16, 1993 in his

investigation notebook about the knife and shotgun, but under a different case number than the

one assigned to Robinson’s murder. O’Hern was working on two or three homicide

investigations during this time period.

       A property report indicated that the knife and gun were found at an address in Lakewood

between February 6th and 7th, which O’Hern testified was not near the location of Robinson’s

murder. When shown a map depicting a route from Robinson’s Spanaway apartment to the

address where the items were found (near a military base), O’Hern was unsure whether this route

was actually passable in 1993. The property report requested that the items be processed for

fingerprints and possible blood on the knife blade. O’Hern could not recall whether any follow

up was done regarding the knife or the shotgun.

       The potential importance or relevance of the knife and shotgun to Robinson’s murder was

highly speculative. O’Hern’s notes indicated that the items were linked with a separate criminal

investigation, and when interviewed before trial by defense counsel, he stated he believed they

were actually obtained in connection with an assault in Lakewood. The items were found by an

apartment manager at an address not near Robinson’s apartment in Spanaway where the murder




                                                22
No. 52642-5-II


occurred. The route suggested by defense counsel at trial between Robinson’s apartment and the

location where the items were found may not have been passible in 1993.

       In addition, Mitchell has not provided any evidence that the State’s bad faith or conscious

disregard caused the knife and shotgun to be destroyed. At most, Mitchell established that a

request was made to test the items for forensic evidence but that no results were available at the

time of trial. Even if this was negligence on the part of the sheriff’s department, “a party’s

negligent failure to preserve evidence relevant to foreseeable litigation is not sanctionable

spoliation.” Cook v. Tarbert Logging, Inc., 190 Wn. App. 448, 464, 360 P.3d 855 (2015).

       Accordingly, we hold that trial counsel was not ineffective on this basis because the trial

court was unlikely to have given a spoliation instruction had it been requested.

F.     CUMULATIVE ERROR

       Mitchell argues that cumulative error, including evidentiary and instructional errors as

well as prosecutorial misconduct and ineffective assistance of counsel, denied him a fair trial.

Under the cumulative error doctrine, the defendant must show that the combined effect of

multiple errors requires a new trial. State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017).

Here, Mitchell has not demonstrated that any error denied him a fair trial. Therefore, we hold

that the cumulative error doctrine is inapplicable.

G.     INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

       Mitchell argues his appellate counsel was ineffective for failing to argue in his direct

appeal that (1) the trial court erred in excluding other suspect evidence, (2) the prosecutor’s

comments during closing argument and rebuttal constituted misconduct, (3) the trial court erred

in allowing forensic officers to read from their 1993 reports during testimony, (4) Mitchell




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No. 52642-5-II


received ineffective assistance of trial counsel, and (5) cumulative error deprived Mitchell of a

fair trial.

         Here, Mitchell has not demonstrated that any of the errors raised in his PRP have merit.

Therefore, we hold that Mitchell did not receive ineffective assistance of appellate counsel on

these grounds.

                                           CONCLUSION

         We deny Mitchell’s 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.



                                                       MAXA, C.J.


 We concur:



 LEE, J.




 SUTTON, J.




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