     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 73219-6-1
             Respondent,
                                                 DIVISION ONE
      v.



ALAN JUSTIN SMITH,                               UNPUBLISHED OPINION

             Appellant.                          FILED: January 9. 2017

      Spearman, J. — Alan Smith was convicted of first degree murder for killing

his wife. He appeals, claiming that the trial court erred by admitting statements

that were protected by the clergy-penitent privilege, and testimony regarding
barefoot impression comparison analysis. We find no error and affirm.
                                      FACTS

       On February 12, 2013, Susann Smith, wife of Alan Smith, did not show up

for work. Her employer called the police, who went to her residence and found

her lying face down in the bathtub. Her death was caused by multiple head

injuries and asphyxia due to drowning.

       At the time of her death, Susann had been separated from Smith for over

a year and the two were in the midst ofacrimonious dissolution proceedings.
Smith was frustrated and angry with the way the proceedings were going and
No. 73219-6-1/2


was very concerned that Susann would take the children away from him and

return to her home country of Germany.

       Fall 2012, Smith was involved with a woman named Rachel Amrine. He

told Amrine that he would like to just get rid of Susann and asked if she knew of a

way to make that happen without anyone knowing. In a joking manner, they

discussed the possibility of using potassium chloride or a rubber mallet to kill

someone. When Smith again mentioned his desire to have Susann disappear,

however, Amrine started to wonder if he was being serious.

       Smith purchased a rubber mallet and a pair of disposable coveralls in

October 2012. Forensic testing and analysis indicated that Susann' s injuries

were consistent with the type of mallet that Smith purchased, but did not

conclusively establish that her wounds were caused by that type of mallet. Fabric

impressions found at the scene were also consistent with the impressions that

would have been left by the coveralls that Smith purchased.

       Susann's body was found in the home she formerly shared with Smith.

There were no signs of forced entry and the door was unlocked. Blood was found

in the bedroom, the bathroom, and near the front door. There were bloody

footwear impressions in the kitchen, the hallway, and leading to the front door. A

hand towel found under the body contained Smith's DNA.

       Based on surveillance footage and eyewitness accounts, there had been a

man riding a bike near Susann's residence early in the morning on February 12,

2013. Smith had purchased a bicycle from Gregg's Green Lake in November
No. 73219-6-1/3


2012. A few weeks after Susann's death, the bike was found abandoned in a

ravine across from Smith's apartment complex.

      A global positioning system (GPS) device found in Smith's vehicle,

provided data that allowed investigators to track Smith's movements. The Bothell

police observed that on February 12, 2013, Smith made some detours from his

usual daily route from home to his children's day care and then to his job at

Boeing. That morning he stopped at some dumpsters in an Albertsons' parking

lot after stopping at the day care center. Around 2:00 p.m., Smith left Boeing and

drove in the vicinity of Susann's residence. The road leading to her home was

barricaded, however, by police who were investigating her death. Smith then

drove to a gas station and later returned to Boeing.

       Smith's internet search history for February 2013 revealed searches for

flights to Venezuela and Canada, initially for one adult and two children. After he

was notified of his wife's death, however, he began to search for tickets for only

one adult.

       The investigation into Susann's death continued for a number of months

During that time, in June 2013, Smith began dating a woman named Love Thai.

Thai and Smith wanted to attend City Church's Belltown campus. They were told

that because of their involvement in the homicide investigation they could not

attend services at any of the City Church campuses or be part of the church's

community groups.

       Smith met Wendell Morris, a City Church group leader at a church-

sponsored event. Sometime after learning that she and Smith could no longer
No. 73219-6-1/4


attend services at City Church, Thai contacted Morris's wife. The Morrises

decided to meet with Thai and Smith to "minister the Word of God" to them.

Verbatim Report of Proceedings (VRP) (4/14/14) at 192-194.

       Morris had been an associate minister at Eastside Baptist Church

(Eastside Baptist). He left Eastside Baptist in 2010 and joined City Church,

intending to "lessen [his] profile" and "shed the title of 'associate minister.'" jd, at

177-78. In his words, he wanted to become merely "a man of God among other

men of God." Jd. After a year, Morris sought out additional opportunities with City

Church and became a small group leader. Morris did not tell Smith that he had

previously been an associate minister at Eastside Baptist.

       Morris testified that he had agreed to meet Smith at a coffee shop in South

Lake Union. When Morris arrived, Thai approached him, told him that Smith was

outside in his car, and that he needed some support. Morris went to Smith's car

and saw that Smith was upset. Morris told Smith that he had come "to point [him]

to the Lord, [and] the Word of God." jd, at 196. Smith began to speak with Morris

about some of his recent struggles.

       Morris told Smith that he needed to know if Smith was involved in the

murder of his wife. Smith looked around and expressed concern about how

"safe" the area was. Id. at 201. Morris told Smith that whatever he said would

stay between the two of them.

       The two decided to take a walk, and then Smith said "[w]hat you asked me

about in the car, the answer is yes." VRP (4/04/14) at 203. When asked for

clarification, Smith stated, '"I did it to her,'" and became emotional. Id at 204.
No. 73219-6-1/5


Smith then looked at Morris and stated "I trust what you do with this information."

Id. Morris understood Smith's comment to mean that he had Smith's permission

to take his statements to the authorities.


       Smith and Morris continued their conversation and Smith indicated that he

would like to be baptized. Morris decided that they could go that day to the

Citadel church in Des Moines, because it was open late. When they arrived at

the Citadel they discovered that the church did not have a baptistery. Morris had

mentioned earlier that he could possibly baptize Smith and he agreed to do so at

Alki beach in West Seattle.

       During the next few days, Morris contacted Smith by phone and text

message to try to persuade him to speak with the authorities. When Smith

declined to turn himself in, Morris called the police on June 25, 2013.

       Smith was charged with first degree murder with a deadly weapon, with

the aggravating factor of domestic violence. He moved to suppress evidence of

his statements to Morris. At the suppression hearing, the court heard testimony

from ministers from Eastside Baptist and City Church.

       Pastor Arthur C. Banks, from Eastside Baptist Church, Tacoma, testified

that an ordained minister for his church is one who has been examined by

several churches within the denomination and has received a recommendation

that he or she has met the spiritual qualifications to be ordained. If Eastside

Baptist accepts the recommendation, then that person is ordained, and he or she

can perform all of the functions of a pastor without supervision.
No. 73219-6-1/6


       Pastor Banks further testified that Morris had become a licensed associate

minister with Eastside Baptist. He explained the role of the licensed associate

ministers and that they may only perform duties at Eastside Baptist under the

supervision of the pastor. For example, a licensed associate minister would not

be able to perform a baptism, communion, wedding, or funeral without being

supervised by the pastor.

       Pastor Banks confirmed that when Morris joined City Church, he became

a member of that church and was no longer a member of Eastside Baptist. At

that point neither Eastside Baptist nor Pastor Banks had any authority over

Morris. The pastor also testified that Eastside Baptist does not have an organized

confession but asks its congregation to confess to God; on occasion when Pastor

Banks counsels members, he tells them upfront that he reserves the right to

notify the authorities if they have done anything harmful or illegal.

       Pastor Jason Michalski from City Church testified that its policies require

church staff to inform their members that any information they share may be

disclosed to other staff members, and that the church reserves the right to report

the content of a disclosure to the authorities. He also explained that City Church

is "not a church that necessarily you need to go confess your sins to a pastor or a

leader or anyone." VRP (4/14/14) at 140. Pastor Michalski also testified that the

"City Groups" were small community groups of members that would meet outside

of service to discuss particular topics or portions of scripture. Pastor Michalski

confirmed that Morris served as a City Group leader, but testified that Morris was

never a licensed or ordained minister at City Church.
No. 73219-6-1/7


       The trial court found that Morris was not acting as a member of the clergy

for Eastside Baptist when he spoke with Smith and that he did not have any

authority from Eastside Baptist to counsel anyone or perform a baptism. The trial

court also found that Morris never became a licensed or ordained minister with


City Church and that he was not acting as a City Group leader when he spoke

with Smith. While it was undisputed that Morris told Smith that their conversation

would stay between the two of them, the trial court determined that the

communication was not confidential because Morris was acting in his individual

capacity. The trial court also found Smith's statement — "I respect what you do

with this information" — led Morris to believe that Smith understood that he would

go to the civil authorities with the information. Based on these findings, the trial

court concluded that Smith had not sustained his burden of showing that his

statements were protected by clergy-penitent privilege.

       At trial, the State presented photographs of bloody footwear impressions

found in the kitchen and bathroom of Susann's residence. Sgt. Shelly Massey, a

forensic identification specialist for the Royal Canadian Mounted Police,

compared these photographs to inked impressions of Smith's feet (bare and

wearing socks). Sgt. Massey testified that based on the impression left at the

scene, she was "unable to exclude and in fact... would include Mr. Smith as a

possible source of who could have made this particular impression." Id. at 64.

Smith moved the court for a Frye1 hearing to determine the admissibility of Sgt.

Massey's testimony, arguing that the use of barefoot morphology evidence is not


       1 Frve v. United States. 93 F. 1013 (D.C. Cir. 1923).

                                                7
No. 73219-6-1/8


generally accepted in the scientific community. The trial court denied the motion

because Sgt. Massey made a physical comparison of the prints and could not

state an opinion more definite than that Smith was a "'possible' maker of the

footprints." CP at 890.

       Smith was found guilty and sentenced to 344 months. Prior to sentencing,

Smith moved for new counsel, arguing that he had received deficient

representation and that he and his attorney had an irreconcilable conflict. The

trial court found that any conflict between Smith and counsel arose from

differences of opinion with regard to trial tactics, and that his complaints did not

rise to the level of ineffective assistance of counsel. He appeals.

                                    DISCUSSION


       Smith contends that the trial court erred when it denied his motion to

suppress his "confession" because it was protected by the clergy-penitent

privilege. He argues that Morris was acting as a member of the clergy when he

heard Smith's confession, because he was a licensed minister at Eastside

Baptist.

       Our review of findings of fact following a suppression motion is limited to

"those facts to which error has been assigned." State v. Hill. 123 Wn.2d 641, 647,

870 P.2d 313 (1994). Where there is substantial evidence in the record

supporting the challenged facts, those facts will be binding on appeal. Id.

Substantial evidence exists where there is a sufficient quantity of evidence in the

record to persuade a fair-minded, rational person of the truth of the finding. State

v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993). Unchallenged findings of



                                          8
No. 73219-6-1/9


fact will be accepted as verities on appeal. Hill, 123 Wn.2d at 647. We review de

novo the trial court's conclusions of law. State v. Mendez, 137 Wn.2d 208, 214,

970 P.2d 722 (1999) abrogated by Brendlin v. California. 551 U.S. 249, 127 S.

Ct. 2400, 168 L. Ed. 2d 132 (2007).

      The clergy-penitent privilege is statutory and has no apparent origin in the

common law. State v. Glenn. 115 Wn. App. 540, 546, 62 P.3d 921 (2003). RCW

5.60.060(3) provides:

      A member of the clergy, a Christian Science practitioner listed in
      the Christian Science Journal, or a priest shall not, without the
      consent of a person making the confession or sacred confidence,
      be examined as to any confession or sacred confidence made to
      him or her in his or her professional character, in the course of
      discipline enjoined by the church to which he or she belongs.

The privilege is held by the penitent and only the penitent can waive it. RCW

5.60.060(3). For the privilege to attach, statements must be (1) confidential

communications, (2) made to a member of the clergy, (3) as a confession. State

v. Glenn, 115 Wn. App. 540, 546, 62 P.3d 921 (2003). In this process the trial

court must determine several questions of preliminary fact, during which it is not

bound by the rules of evidence, except those that pertain to privileges, jd.

       Under RCW 26.44.020(6), "clergy," means "any regularly licensed or

ordained minister, priest, or rabbi of any church or religious denomination,

whether acting in an individual capacity or as an employee or agent of any public

or private organization or institution." Such person must be ordained in order to

be considered a member of the "clergy." State v. Martin. 137 Wn.2d 774, 783-84,

975P.2d 1020(1999).
No. 73219-6-1/10


        Smith argues that Morris was a licensed minister with Eastside Baptist

Church when they spoke, and therefore Morris qualified as a member of the

clergy to whom Smith made his confession. But Smith does not challenge the

trial court's finding of fact that "[w]hen Morris joined City Church, he ceased to be

a member of Eastside Baptist."2 CP at 864. He is therefore not a "licensed

minister" for the purposes of the statute. Furthermore, "[s]imply establishing one's

status as 'clergy' is not enough" for the privilege to apply; the person "must also

be functioning in that capacity             State v. Motherwell 114 Wn.2d 353, 358, 788

P.2d 1066 (1990).3 Here, even if Morris had maintained his status as a licensed

minister with Eastside, it is clear from the record that he was not acting in that

capacity when he and Smith met. Morris had no authority to act on behalf of

Eastside without the pastor's supervision.

        Smith next argues that he made a "confession" that Morris heard as part

of his duties as a minister of City Church. He contends that Morris met with him

intending to convince him to confess his sins and stay true to his conversion and

faith. He also claims that because City Church had no specific policy on

confession, it was likely that Morris's actions were enjoined by City Church




        2 Smith challenges only one factual finding—that Morris was not an ordained minister
with Eastside Baptist. There is no evidence in the record that Morris was ever ordained; he held
only a license with Eastside Baptist, which he latergave up when he became a memberof City
Church. The trial court's finding is not erroneous.

         3 Motherwell is often cited as authority in regards to interpreting the clergy-penitent
privilege, even though it interpreted the mandatory reporting exemption for clergy. See Jane Doe
v. The Corp. of the Pres. of the Church of Jesus Christ of Latter-Dav Saints, 122 Wn. App. 556,
563, 90 3d. 1147 (2004); State v. Buss, 76 Wn. App. 780, 785, 887 P.2d 920 (1995), abrogated
by Martin, 137 Wn.2d 774, 975 P.2d 1020 (1999); Glenn, 115 Wn. App. at 553 at n.7.


                                                  10
No. 73219-6-1/11


practice or rules. The determination of what constitutes a "confession" for the

purposes of RCW 5.60.060(3) is to be made by the church of the particular clergy

member, not the court. Martin, 137 Wn.2d at 787. The record shows that City

Church did not have a confession practice, and its policies specified that any

information revealed in counseling was not confidential. As a result, Smith has

not shown that his statements to Morris were a "confession" to which the clergy-

penitent privilege would attach.

       Smith next argues that his disclosure was privileged because he believed

that his statements were confidential based on Morris's assurances.

Confidentiality is a requirement for establishing the clergy-penitent privilege.

Martin, 137 Wn.2d at 789-90. Here, Smith may have intended and/or believed

that his statements would be confidential, but neither are sufficient to establish a

statutory privilege if none of the other requirements are met.

       We conclude that Smith has not shown that his statements are protected

by the clergy-penitent privilege. The trial court properly denied his motion to

suppress on that ground.

       Smith next argues that Sgt. Massey's testimony comparing the foot

impressions found at the scene of the homicide, to those taken from Smith

should, not have been admitted. He contends that in making the comparisons,

Sgt. Massey employed scientific, technical, or specialized knowledge that was

not generally accepted in the scientific community. He contends that at the very

least, the court should have held a Frve hearing to consider its admissibility. The

State argues that a Frve hearing was not necessary because the testimony


                                          11
No. 73219-6-1/12


involved a physical comparison rather than a scientific test and the witness's only

conclusion was that Smith could not be excluded as a possible source of the

impressions.

       We review the trial court's decision to admit or deny evidence under the

Frve standard de novo. State v. Cauthron. 120 Wn.2d 879, 887, 846 P.2d 502

(1993), overruled in part on other grounds by State v. Bruckner, 133 Wn.2d 63,

941 P.2d 667 (1997). The trial court's determination of whether expert testimony

is admissible under ER 702 is reviewed for an abuse of discretion. IdL at 890.

       Washington courts employ the Frve test to determine if evidence based on

novel scientific procedures is admissible at trial. Cauthron, 120 Wn.2d at 887.

The two-pronged test asks, "(1) whether the scientific theory upon which the

evidence is based is generally accepted in the relevant scientific community, and

(2) whether the technique used to implement that theory is also generally

accepted in the relevant scientific community." State v. Gentry, 125 Wn.2d 570,

585, 888 P.2d 1105 (1995). A third prong that asks whether the generally

accepted technique was performed correctly goes to the weight of the evidence,

not to its admissibility. Id.

       The Frye test is appropriate to those situations in which the scientific

evidence has the potential to mislead lay jurors, who may be awed by the

apparent infallibility of scientific experts and their techniques. State v.

Brewczvnski, 173 Wn. App. 541, 558, 294 P.3d 825 (2013). Smith argues that a

Frve hearing was necessary here because, in his view, Sgt. Massey employed a

scientific process that had not been found to be generally accepted as reliable by


                                           12
No. 73219-6-1/13


the scientific community. Br. of Appellant at 28. The State argues that under

Brewczynski, the analysis Sgt. Massey offered was a physical comparison, not a

scientific test, and a Frve hearing was not required. The State is correct.

       In Brewczynski, the defendant challenged the expert's technique for

footwear comparison, arguing that it was not generally accepted in the

community of footwear experts. 173 Wn. App. at 555. The expert made an

impression of the suspect's boot by shaping clay around the bottom and sides,

and then comparing the image with the overlay of a print found at the scene. The

expert concluded that Brewczynski's right boot had a similar tread pattern and

size and could have made the print, jd. The court rejected Brewczynski's

argument that a Frve hearing was necessary because the method used by the

expert was a matter of physical comparison rather than a scientific test. "'In such

cases, the jury is in a position to weigh the probative value of the testimony

without abandoning common sense and sacrificing independent judgment to the

expert's assertions.'" Id. at 556 (quoting State v. Hasan, 205 Conn. 485, 490,

491, 534 A.2d 877 (1987)).

       Similarly here, Sgt. Massey did nothing more than make a visual

comparison of photographs of the foot impressions at the crime scene and those

taken from Smith. The trial court did not err when it denied Smith's request for a

Frve hearing.

       Smith also argues that barefoot morphology has not garnered general

acceptance in the scientific community. He points out that while Washington has

not considered the scientific acceptability of barefoot morphology analysis, other



                                         13
No. 73219-6-1/14


states have found that such evidence was not sufficiently reliable to pass a Frye

test and be admitted at trial. He cites State v. Jones, 514 S.E. 2d 813, (S.C.

2001) ("Jones I"), 681 S.E.2d 580 (S.C. 2009) ("Jones II"), and State v. Berry,

546 S.E.2d 145 (N.C. App. 2001), as instances where the courts rejected

barefoot morphology evidence. These cases are not persuasive, however,

because they involve different standards for admission and expert opinion

testimony that resulted in a conclusive identification. Neither North Carolina nor

South Carolina courts use the Frve standard for admissibility. Jones II, 681

S.E.2d at 590; State v. Goode, 461 S.E.2d 631, 645 (N.C. 1995). And in the

Jones cases and in Berry, the experts offered testimony based on barefoot

impression that positively identified the defendant as the maker of the print. The

courts found the method not to be sufficiently reliable to support the admission of

such testimony. Jones I, 541 S.E. 2d at 818, Jones II, 681 S.E.2d at 591, and

Berry, 546 S.E.2d at 149, 154.

       The State argues that this case is the most similarto State v. Kunze, 97

Wn. App. 832, 988 P.2d 977 (1999) which found that the scientific reliability of

the method was irrelevant to whether the evidence was admissible. In that case

the court considered ear-print identification evidence and found it to be

inadmissible, because the majority of testifying experts indicated that it was not

generally accepted in the scientific community. The appellate court was explicit,

however, that upon retrial, there would be no bar to testimony stating that the

defendant could not be excluded as a possible maker of the print left at the

scene, id. at 856. The Kunze court found that this type of comparison — "an


                                         14
No. 73219-6-1/15


'eyeballing' of readily discernible similarities and differences — is based on

'visual techniques'... or, ... on personal knowledge that can readily be

understood and evaluated by the jury," and "need not be supported by a showing

of general acceptance. ]d_,

       Here, Sgt. Massey described how she compared footprints by analyzing:

       "the shape of the foot, the location of the tow (sic) pads, the
       specific space that each towed (sic) pad takes up, the
       distance of various tow (sic) pads to what we call the met tar
       sell (sic) ridge, or the front edge, leading edge of the balance
       ball of the foot, the width and shape of the ball of the foot, the
       widths of the arch, the heal (sic), the overall length of the foot,
       so a combination of these features is what we are looking at."

VRP (1/23/15) at 30. Her conclusion was not that Smith "did make the prints, it's

that he could have made them." Id. at 93. Sgt. Massey's process and conclusion

is similar to the testimony about ear print evidence that was admitted without a

Frve hearing in Kunze. We find no error in the admission of Sgt. Massey's

testimony regarding the physical comparison of Smith's prints to the prints found

at the scene.4

       Smith argues that his constitutional right to effective assistance of counsel

was violated when the trial court refused to grant his motion for new counsel. We

review the denial of a motion to substitute counsel for an abuse of discretion.

State v. Lindsev. 177 Wn. App. 233, 248, 311 P.3d 61 (2013), review denied. 180

Wn.2d 1022 (2014). A trial court abuses its discretion when its decision is

"'manifestly unreasonable or based upon untenable grounds or reasons.'" State


        4 Smith does not argue that the trial court abused its discretion when it admitted the
evidence under ER 702. Even if it had been error to admit the testimony, it would have been
harmless. Based on all of the other evidence against Smith, there is no basis for us to conclude
that the outcome of the trial would have been different had the evidence not been admitted.

                                                15
No. 73219-6-1/16


v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266 (2014) (quoting State v. Lamb, 175

Wn.2d 121, 127, 285 P.3d 27 (2012).

       A defendant must show good cause to warrant substitution of counsel,

such as a conflict of interest, an irreconcilable conflict, or a complete breakdown

in communication between the attorney and the defendant. State v. Varga, 151

Wn.2d 179, 200, 86 P.3d 139 (2004). A substitution may be justified when the

attorney-client relationship is plagued by things that suggest that the attorney

cannot provide diligent representation. In re Personal Restraint of Stenson, 142

Wn.2d 710, 724-31, 16 P.3d 1 (2001). However, a defendant must show more

than a general loss of trust or confidence. State v. Schaller, 143 Wn. App. 258,

268, 177P.3d 1139(2007).

       To determine whether Smith was entitled to new counsel, we examine

three factors: (1) the extent of the conflict, (2) the adequacy of the trial court's

inquiry into the conflict, and (3) the timeliness of the motion for substitution of

counsel. State v. Cross. 156 Wn.2d 580, 607, 132 P.3d 80 (2006). Here, Smith

argues only that the trial court failed to undertake an adequate inquiry into the

conflict. A trial court must inquire into "(1) the reasons given for the

dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any

substitution upon the scheduled proceedings." Stenson, 142 Wn.2d at 723.

       At the hearing, Smith first raised various points and arguments that he felt

should have been part of his defense, including DNA analysis and greater

emphasis on the timing of events. He further argued that counsel failed to

provide more strident advocacy regarding witness credibility, and that his


                                           16
No. 73219-6-1/17


external circumstances, such as media attention and his children's

dependencies, should have been brought to the court's attention.5

        Contrary to Smith's contention, the trial court considered each of the

Stenson factors in detail on the record. First, the court found that many of the

reasons for Smith's dissatisfaction, e.g., the points he wanted counsel to

emphasize, were either heard by the judge, or irrelevant to his defense. The

other points of dissatisfaction were found to be "trial strategy decisions which

must rest with the lawyers. . . ." (VRP 2/25/15) at 32. Second, the court reviewed

the file and found that Smith had been diligently represented throughout. And

finally, the trial court found that substituting counsel prior to sentencing would

delay the imposition of a sentence for an undetermined period of time. Based on

the trial court's inquiry, we find no abuse of discretion in denying Smith's motion

to substitute counsel.




         5 Smith compares his case to the conflict between client and counsel found in United
States v. Williams. 594 F.2d 1258, 1259 (9th Cir. 1979) and Frazer v. United States. 18 F.3d 778,
785 (9th Cir. 1994), by way of Stenson. 142 Wn. 2d at 724. In Williams, the Ninth Circuit held that
the District Court erred when it denied the defendant's request, after a strong showing of
irreconcilable conflict, where even "the response of counsel tended to confirm that the course of
the client-attorney relationship had been stormy one with quarrels, bad language, threats, and
counter-threats." 594 F.2d at 1260. In Frazer, the defendant's attorney called him a "'stupid nigger
son of a bitch and said he hopes I get life. And if I continue to insist on going to trial I will find him
to be very ineffective." 18 F.3d at 780.There is nothing in the record that suggests that the issues
between Smith and his lawyers even approached this level of conflict.


                                                   17
No. 73219-6-1/18


                             Statement of Additional Grounds

        In his pro se statements of additional grounds, Smith lists over thirty

additional errors.6 Several of his claimed errors have either been addressed by

counsel or are not proper matters for a statement of additional grounds under

RAP 10.10(a). These include the admission of forensic evidence, the denial of

his motion for alternate counsel, and the admission of his confession. Smith also

asks the court to reweigh the evidence and make alternate findings regarding

witness credibility. These are issues for the trier of fact that cannot be reviewed

on appeal. State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Smith's

other additional grounds for error include ineffective assistance of counsel,

sufficiency of the evidence, prosecutorial misconduct, probable cause for search

and arrest warrants and admissibility of evidence.

        Smith argues that he was deprived of his right to a defense because he

was subject to coercion by counsel and law enforcement. He argues that his

statements and his consent to search were made under threats that he would not

be able to see his children. We are unable to review these claims because they

rely on facts or evidence not in the record. While they may be properly raised in

a personal restraint petition, we will not consider them here. State v. Alvarado,

164 Wn.2d 556, 569, 192 P.3d 345 (2008).




        6 Smith also submits an amendment to his statement of additional grounds (SAG) where
he explains why he filed a SAG. In this Amendment he claims that the trial court erred by failing to
hold a voluntariness hearing with regard to the confession and that both trial and appellate
counsel were ineffective for failing to raise the issue. The record contains nothing, however, that
suggests the confession was not voluntary, nor does Smith provide any basis for a finding of
involuntariness.


                                                18
No. 73219-6-1/19


       A successful ineffective assistance of counsel claim requires the

defendant to show that counsel's performance was deficient and that the

defendant was prejudiced by the deficient performance. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish

deficient representation, the defendant must show that counsel's representation

"f[ell] below an objective standard of reasonableness." State v. Grier, 171 Wn.2d

17, 33, 246 P.3d 1260 (2011). Courts presume that counsel provided effective

representation and require the defendant to prove that no legitimate strategic or

tactical reasons exist. ]d_. "Prejudice" for this purpose is the "reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

       Smith fails to articulate any respect in which he was prejudiced by the acts

or omissions about which he complains. His challenge fails on this basis alone.

We need not consider both prongs of Strickland (deficient performance and

prejudice) if a petitioner fails one prong of the test. 466 U.S. at 697.

       Smith next argues that his conviction is not supported by sufficient

evidence, presumably excluding his confession. Evidence is sufficient to support

a conviction if, viewed in the light most favorable to the State, any rational trier of

fact could have found that each element of the crime was proved beyond a

reasonable doubt. State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010).

We draw all reasonable inferences from the evidence in the State's favor and

interpret the evidence most strongly against the defendant. State v. Joy, 121


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No. 73219-6-1/20


Wn.2d 333, 339, 851 P.2d 654 (1993). We assume "the truth of the State's

evidence and all inferences that reasonably can be drawn therefrom." State v.

Salinas, 119 Wn.2d 192, 201, 820 P.2d 1068 (1992). Here, there is ample

evidence in the record upon which a reasonable trier of fact could find each

element of first degree murder beyond a reasonable doubt.

       Smith raises other additional grounds related to the trial court's admission

of evidence. We review the trial court's admission of evidence for abuse of

discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). "'A trial

court abuses its discretion when its decision is manifestly unreasonable or based

upon untenable grounds.'" State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426

(1997) (quoting Havens v. C & D Plastics, Inc.. 124 Wn.2d 158, 168, 876 P.2d

435 (1994)). Smith has not shown that any of the challenged decisions to admit

evidence were unreasonable or untenable.

       Smith challenges the trial court's denial of his motion to suppress arguing

that there was no probable cause for arrest and that the police improperly

obtained evidence without a warrant. He fails to identify, however, any finding of

fact to which he assigns error regarding probable cause for either his arrest or

any of the search warrants. Nor does he explain the insufficiency of evidence at

the suppression hearing that would make the findings erroneous.

       Finally, Smith raises issues of prosecutorial misconduct, arguing that the

State's questioning elicited improper opinion testimony about Smith's silence and

his guilt. Prosecutorial misconduct is grounds for reversal if the conduct is both

improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551


                                         20
No. 73219-6-1/21


(2011). We evaluate a prosecutor's conduct by examining it in the full trial

context, including the evidence presented, the argument, the issues the evidence

addressed in argument, and the jury instructions. ]d A defendant suffers

prejudice only where there is a substantial likelihood that the

prosecutor's misconduct affected the jury's verdict. Id. Here, Smith does not

identify the challenged conduct with sufficient specificity to enable us to evaluate

it. We conclude that none of Smith's additional grounds for appeal have merit.7

       Affirmed.




                                                        $    lC/,- -, }      3L
WE CONCUR:




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        7Smith moved to modify the denial of his attorney's motion to withdraw as counsel on
this appeal. The motion is denied.

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