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                                                                                                           20111 FEB          7            2: 19

                                                                                                            SD!           F     rf     iING X14

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                                                                                                                              1 UT

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II



STATE OF WASHINGTON,                                                                  No. 41795 -2 -II


                                 Respondent,


   IA

                                                                      ORDER GRANTING RECONSIDERATION
ROBERT JOHN MADDAUS,                                                    IN PART AND DENYING IN PART BY
                                                                                AMENDING MAJORITY
                                  Appellant.




        Appellant Robert John Maddaus                      has        filed   a motion for reconsideration of our


unpublished        opinion   filed     on   September           20,    2013.     We   grant    Maddaus' s     motion for


reconsideration, in part, by making the following changes to our unpublished opinion filed

September 20, 2013:


         1)    In the first      sentence    of   the   first full     paragraph   on page    2,   which   begins, " In his


Statement     of   Additional Grounds ( SAG)" and carries over to page 3, we


        delete the word " a" from the third line of the paragraph;

        change the word " slide" to " slides" in the fourth line of that same paragraph;


        add    the    phrase "    showing     exhibits         that   had been altered,   including"       after the       word
         slides ";




        delete the word " containing" after that addition;

        add    the   phrase "(   4) the trial court erred in denying a motion to dismiss for discovery
        violations;" after       the   citation   to CP   at   978;   and
No. 41795 -2 -II




        change    the   reference      to "( 4)" before the word " cumulative."


With these changes, this sentence now reads,


                  In his Statement          of   Additional Grounds ( SAG), Maddaus asserts that ( 1)
        the trial     court erred   in   denying       his   request       for   new appointed counsel; (       2) the trial
        judge     was    unfairly biased          against          him; ( 3)     the State committed prosecutorial
        misconduct by displaying Microsoft Power Point slides showing exhibits that had
        been altered, including a photograph of Maddaus wearing a wig, with a circle and
        a slash superimposed over                it   and    the    word "       GUILTY" written beneath it, CP at
        978; ( 4)      the trial court erred in denying a motion to dismiss for discovery
        violations; and ( 5) cumulative error violated his right to a fair trial.

         2)    In the last   paragraph on page               5,    which   begins, " Meanwhile, Maddaus had acquired,"




        delete the phrase " and a photo of himself wearing a blond wig" from the first sentence;

        after   the             following the above change, add this new second sentence, "
                      record citation                                                                                          The

        police found a blonde wig in Maddaus' s vehicle when they arrested him. ";

        in the    sentence after       this    addition, which             begins, " When    asked   why he had," insert the
        words " a      blonde"   after   the   word " had" and             before the   word " wig   ";   and




        delete the last      sentence         in this    paragraph,          which read, "   The police found this wig in
        Maddaus' s vehicle when they arrested him."

With these changes, this paragraph now reads,


               Meanwhile, Maddaus had acquired a wig and a false passport bearing the
        name "      Chad Walker Vogt." 17 VRP at 2003. The police found a blonde wig in
        Maddaus' s vehicle when they arrested him. When asked why he had a blonde

        wig, he stated, " Because I knew there was a warrant out for my arrest. The police
        wanted      to talk to   me.     I didn' t    want        to talk to them."     15 VRP at 1868.


         3)     Before the period at the end of the first sentence of the first full paragraph on page


13,   which     begins., " The State          also    presented,"          we     substitute the phrase and punctuation ",



including     several slides     depicting       photographic exhibits with               text   superimposed ";      this changed


sentence now reads,




                                                                       2
No. 41795 -2 -II




          The State also presented Microsoft PowerPoint slides during its closing argument,
          including several slides depicting photographic exhibits with text superimposed.

           4)    In the last    sentence of    the first full   paragraph on page             13,   which   begins, " Maddaus


did   not object,"    we delete the words " this slide" and replace them with the words " these slides. ";


this changed sentence now reads,


          Maddaus did not object to these slides.


           5)    In the first   sentence of   the last   paragraph on page         13,   which      begins, " It   appears,"   we




delete the      word " this" after   the   word " displayed" and substitute           the   word "    the "; we also insert the


phrase "   that included the       superimposed word ` GUILTY              "'   after   the   word " slide."       This changed


sentence now reads,



          It appears that the State displayed the slide that included the superimposed word
           Guilty" as the prosecutor made the following closing remarks:... .

           6) Before the first full         sentence at   the   top   of page   15,   which     begins, " In the alternative,


he    argues,"   we insert the following sentence:

          In his SAG, Maddaus also asserts that the search warrant was invalid because the
           supporting affidavit contained " false" facts and allegations that the record did not
           support.




The changed ending of this paragraph now reads,

           In his SAG, Maddaus also asserts that the search warrant was invalid because the
           supporting affidavit contained " false" facts and allegations that the record did not
           support.    In the alternative, he argues for the first time on appeal that the search
           was unconstitutionally overbroad. These arguments fail.

            7)    Before the last sentence in the last paragraph on page 15, which sentence begins,

 Because he does         not," we    insert this   sentence: "      Nor did he challenge the facts in the supporting

affidavit."      The changed ending of this paragraph now reads,



                                                                3
No. 41795 -2 -II




       Nor did he        challenge     the facts in the supporting               affidavit.    Because he does not
       meet his burden ....


           8)   In the last   partial sentence on page             15,   which   begins, " Because he does not meet his


burden,"    we    delete the   words " challenge          falls"    and substitute       the   words " challenges   fall "; this


changed sentence now reads,



       Because he does not meet his burden to show that his new challenges fall within
       the RAP 2. 5( a)( 3) exception to the preservation requirement, we address only his
       preserved challenge to the firearm.


           9)   At the end of the first sentence in the first full paragraph on page 20, which begins,

 We hold that," we insert this new footnote 18:


       Although Maddaus contends that the restraints interfered with his ability to assist
       counsel and with his ability to testify, these bare allegations are not sufficient to
       establish prejudice         based   on   the   record        before     us.    To the extent Maddaus has
       evidence outside the record supporting his claims of prejudice, he must raise any
       such claims in a personal restraint petition. McFarland, 127 Wn.2d at 335.

This changed sentence and new footnote now read,


              We hold that, because the jury did not see Maddaus' s restraints, there was
       no prejudice to him, and any error in ordering Maddaus to wear them was
                 18
       harmless.    Jennings, 111 Wn. App. at 61.

          Although Maddaus contends that the restraints interfered with his ability to
        assist counsel and with his ability to testify, these bare allegations are not
        sufficient      to   establish prejudice      based        on    the   record    before     us.   To the extent
        Maddaus has evidence outside the record supporting his claims of prejudice, he
        mustraise any           such   claims   in    a   personal        restraint     petition.     McFarland, 127
        Wn.2d at 335.


           10) In the first full    sentence on page         23,       which   begins, " He    also asserts   in his SAG,"   we




        insert "( 1)"    after the phrase " asserts in his SAG that ";

        add     the   phrase and punctuation ",           and ( 2) the trial court erred in denying the motion to

continue."      after-the word " misconduct."



                                                                   E
No. 41795 -2 -II




This changed sentence now reads,


          He also asserts in his SAG that ( 1) he received ineffective assistance of counsel
          based on the trial court' s denial of Maddaus' s motion to continue to investigate
          potential governmental misconduct, and ( 2) the trial court erred in denying the
          motion to continue.


           11)   At the end of the first line at the top of page 25, after the text' s reference to footnote

23 (   which will   become footnote 24               on   entry   of   this   order) and       before the   sentence, "   Thus, this


claim also   fails,"     we insert the following sentence:

          With respect to the trial court' s denial of Maddaus' s motion. to continue, we will
          reverse    a   trial court' s      denial    of a    continuance          only      upon "   a showing that the
          defendant was prejudiced or that. the result of the trial would likely have been
          different had the motion been granted "; Maddaus fails to make such a showing
          here. State v. Kelly, 32 Wn. App. 112, 114, 645 P. 2d 1146, review denied, 97
          Wn.2d 1037 ( 1982).


These changes now read,


                 why his counsel' s performance was deficient or how counsel' s performance
          prejudiced   him.24 With respect. to the trial court' s denial of Maddaus' s motion to
          continue,      we   will reverse       a    trial   court' s     denial      of a   continuance   only   upon " a


          showing that the defendant was prejudiced or that the result of the trial would
          likely have been different had the motion been granted "; Maddaus fails to make
          such a showing here.    State v. Kelly, 32 Wn. App. 112, 114, 645 P. 2d 1146,
          review    denied, 97 Wri.2d 1037 ( 1982). Thus, this claim also fails.


           12)    On     page      41,   we pluralize     the word " Slide"             in subheading D so that that the new

subheading       reads, "     D.     Power Point Slides ".             Also on page 41, in the first paragraph under


subheading " D ":

          After the first       sentence phrase " other similar words                    surrounding it,"    we add ",    along with
          several other slides            depicting    exhibits with additional superimposed                 text;" we also add a

          new    footnote 37 between the              word "    text"      and   the    semicolon, which     footnote    states, "   See
          CP at 867, 868, 881, 885, 886, 889 -92, 902 -05, 907, 911 - 13, 940, 944, 978."

          Between the first              and second sentences, we             insert this      new sentence, "   He also contends
          that one of the State' s slides misstated the record."



                                                                       5
No. 41795 -2 -II




         And after the last sentence, we insert another new footnote, 38, which states,


         In addition, Maddaus appears to contend that the State engaged in misconduct by
         destroying or spoiling portions of the PowerPoint presentation. We decline to
         reach this issue because whether there were additional PowerPoint slides is a
         matter outside            the    record on appeal.          If Maddaus has additional evidence related
         to this issue, he           must present          it in   a personal restraint petition.            McFarland, 127
         Wn.2d at 335.


This changed paragraph with new subheading and added footnotes now reads,

                                                       D. Power Point Slides


                   Maddaus also argues for the first time on appeal that ( 1.) the State engaged
         in prosecutorial misconduct when it displayed a Microsoft PowerPoint slide
         containing a photograph of Maddaus wearing a wig police had found in his
         vehicle,       the        word "    GUILTY"           written      beneath it,        and       other   similar   words


         surrounding it, along with several other slides depicting exhibits with additional
                            37;
         superimposed text      and ( 2) his counsel was ineffective in failing to object. He

         also contends that one of the State' s slides misstated the record. These arguments
                        38
         also   fail.


           See CP at 867, 868, 881, 885, 886, 889 -92, 902 -05, 907, 911 - 13, 940, 944, 978.

         38 In addition, Maddaus appears to contend that the State engaged in misconduct
         by destroying or spoiling portions of the PowerPoint presentation. We decline to
         reach this issue because whether there were additional PowerPoint slides is a
         matter outside             the   record on appeal.           If Maddaus has additional evidence related
         to this issue, he           must present          it in   a personal restraint petition.            McFarland, 127
         Wn.2d at 335.


          13)    In the last        partial paragraph on page               42,   which     begins, " Moreover, the center of:


         In the first          sentence,      we . delete      the    word "      this"    after   the   phrase "    the center of and
         substitute          the   word "   the ";   and




         in the   second sentence, after               the   word " slide" and            before the     phrase "   to trigger," we insert

         the phrase " or any of the other altered slides."

In the first line of the continuation of this paragraph at the top of page 43, after the phrase " mug

shot,"




                                                                        G
No. 41795 -2 -II




       we delete the word " displaying" and its preceding comma and substitute the word " of';

       we   delete the       word " as"      after the    word " him" and             before the   word " unkempt "; and




       after the ending citation to Glasmann, we insert the following sentence and add new
       footnote        39,    which        together      read, "    Instead, these         slides     contained descriptions      of
       testimony or statements presented at the trial or statements that represented the State' s
       argument        based     on reasonable           inferences from the             record. [    FN 39: Maddaus suggests
       that the static PowerPoint slides in the record do not adequately represent the entire
       presentation, which was arguably more dynamic in real time. Again, the extent to which
       these slides may not accurately depict the State' s presentation is outside the record' before
       us; therefore, we cannot consider this assertion. See McFarland, 127 Wn.2d at 335.]"

This changed paragraph now reads:


                  Moreover, the center of the single slide included a photograph of Maddaus
        not   a   mug        shot,    as    in Glasmann) wearing
                                                           wig — to remind the jury that
                                                                                  a

       Maddaus had intentionally obtained a false passport and had been using a disguise
       on the days leading to his arrest. In contrast, nothing in the record here suggests

       that the State          used    this   slide      or   any   of    the   other    altered     slides   to trigger "   an


       emotional reaction" from the jury, as was the case in Glasmann, where multiple
       PowerPoint slides repeatedly displayed Glasmann' s mug shot of him unkempt and
       bloody. Glasmann, 175 Wn.2d at 706; 710 n. 4. Instead, these slides contained
       descriptions of testimony or statements presented at the trial or statements that
       represented the State' s argument based on reasonable inferences from the
                  39
        record.



        39 Maddaus suggests that the static PowerPoint slides in the record do not
        adequately represent the entire presentation, which was arguably more dynamic in
        real time. Again, the extent to which these slides may not accurately depict the
        State' s presentation is outside the record before us; therefore, we cannot consider
        this assertion. See McFarland, 127 Wn.2d at 335.

         14) In the first full        paragraph on page             43,   which       begins, "   Applying the heightened,"

        in the first         sentence,      after   the word " unpreserved ",              we      delete the    word " errors"   and

        substitute the phrase " prosecutorial misconduct claims ";


        in the first     sentence,         after   the   phrase "   State'      s use of,"   we delete the clause " this single
        slide showing him in a wig that he had used to evade arrest" and substitute the phrase,
         these slides ",




                                                                     7
No. 41795 -2 -II




       in the     second     sentence,       we    delete the       phrase "    this    slide    to    avoid       emphasizing it"      and

       substitute    the    phrase "      these   slides   to   avoid    emphasizing them ";               and




       immediately         after   the    second sentence,          ending "    on     this basis," we -add new footnote 40,
       which states: "     Division One of our court recently filed State v. Hecht, No. 71059 -14,
       2014 WL 627852 ( Wash. Ct.        App. Feb. 18, 2014), addressing a similar prosecutorial
       misconduct       claim in another Pierce County case.      We distinguish Maddaus' s case
       because, unlike the slides the prosecutor used in Hecht, the slides here did not contain
       statements amounting to the prosecutor' s personal opinions of the defendant' s guilt."

This changed paragraph now reads,


                  Applying          the      heightened           standard       of         scrutiny        for     unpreserved

       prosecutorial misconduct claims, we hold that Maddaus has failed to show that a
       curative instruction would not have overcome any prejudicial effect from the
        State'   s use of   these slides.         Moreover, as with the previous claim, defense counsel
       could have strategically elected not to object to these slides to avoid emphasizing
       them further; this point, coupled with Maddaus' s failure to show prejudice,
                                                                                       40
       defeats his ineffective            assistance claim on            this basis.


         Division One of our court recently filed State v. Hecht, No. 71059 -1 - I, 2014
       WL 627852 ( Wash. Ct.   App. Feb. 18, 2014), addressing a similar prosecutorial
       misconduct claim in another Pierce County case.  We distinguish Maddaus' s case
       because, unlike the slides the prosecutor used in Hecht, the slides here did not
        contain statements amounting to the prosecutor' s personal opinions about the
        defendant' s guilt.


         15)     After the first full             paragraph        on    page   43 (    and     before the          next   heading, "   VI.


WITNESS TAMPERING "),          we insert the following new paragraph:

                  Maddaus          also   argues    that       another slide misstated           the       record:      This slide
        was      captioned, "       DEFENDANT                  FALSE       ALIBI        ATTEMPT"                  and   described
        several    excerpts     from Maddaus'              s   jail telephone    calls.        CP     at   915.     For the first
        time on appeal, Maddaus specifically objects to the portion of the slide stating,
         Dan Leville & Falyn Grimes ` you                       guys ... protect me. "'         CP at 915 ( alteration in
        original). -   But this statement was a reasonable inference from the record.
        Nevertheless, to the extent this statement was arguably not a reasonable inference,
        any potential prejudice from this single statement was not significant given the
        other evidence of Maddaus' s guilt; and Maddaus has not shown that a curative
        instruction    would         not    have     overcome           any   potential       prejudice.           Accordingly,
        Maddaus does not show prosecutorial misconduct or ineffective assistance of
        counsel on this ground.




                                                                     3
No. 41795 -2 -II




           16)     On   page       56, between the first full              sentence,    which   begins, " The trial court


responded,"      and   the second full        sentence, which           begins, " Maddaus did      not provide,"   we insert


the following new sentence:

       The trial court again address Maddaus' s request for new counsel, based on the
       same grounds, the following day.

This changed latter part of this paragraph now reads,


       The trial       court responded, "      I   am not   going to allow it at this late date.... I have

       already      ruled     on    the letter."        3 VRP at 264.     The trial court again address
       Maddaus' s request for new counsel, based on the same grounds, the following
       day. Maddaus did not provide any new substantial reason to support his request
       for new counsel, especially in light of the lateness of his request three days into
       the trial. Thus, we hold that the trial court did not abuse its discretion in denying
       this request.



           17)     On page 56, after the end of subsection VIII. B. and before the beginning of

subsection       VIII. C.,    we     change     the      original       subheading " C.       Cumulative    Error"      to " D.


Cumulative Error"           and   insert the   following       new subsection "        C" before   new subsection "      D"   as



follows:


                                                    C. Motion To Dismiss


                    Maddaus next challenges the trial court' s denial of his motion to dismiss
        or       motion     for    mistrial    based      on      alleged    discovery      violations,   which    he
        characterizes as prosecutorial mismanagement or misconduct. Maddaus argued to
        the trial court that the State had withheld material information related to
        Tremblay'       s   testimony    and       to   another    witness' s (   Kyle Collins 54)   request for a
           deal" from the State in         exchange        for his testifying     against   Maddaus.      CP at 387.
        We disagree with Maddaus that the trial court erred in denying his motion.
                Trial courts have wide latitude in imposing sanctions for discovery
        violations. State v. Dunivin, 65 Wn. App. 728, 731, 829 P. 2d 799, review denied,
           120 Wn.2d 1016 ( 1992).             We will not disturb the trial court' s denial of a motion
        to dismiss for discovery violations unless the denial constitutes a manifest abuse
        of   discretion. State v. Woods, 143 Wn.2d 561, 582, 23 P. 3d 1046, cent, denied,
        534 U.S. 964 ( 2001).



                                                                    E
No. 41795 -2 -II




                   Dismissal is an extraordinary remedy, available only when the discovery
       violation         has materially affected the defendant' s right to a fair trial. Woods, 143
       Wn.2d      at     582. Thus, before a trial court exercises its discretion to dismiss,
                   a defendant must prove that it is more probably true than not that
                    1)     the    prosecution         failed to    act   with   due diligence,    and (   2)

                   material facts were withheld from the defendant until shortly
                   before a crucial stage in the litigation process, which essentially
                   compelled the defendant to choose between two distinct rights.
        Woods, 143 Wn.2d at 583.
                   The record here shows the State was not aware that Tremblay' s trial
       testimony would differ from his previous statements until Tremblay testified at
       trial.     Thus, the State clearly did not fail to act with due diligence, and the trial
        court did not err in denying Maddaus' s motion to dismiss to the extent it was
                                                 ss
       based      onin respect to Tremblay' s testimony.
                   As soon as the trial court became aware of the State' s failure to
        communicate              to    Maddaus        Collins'    previous offer to testify against him in
        exchange for a plea deal, the trial court required the State to turn over this
        information to defense counsel and gave defense counsel the opportunity to
                                                56
        question       Collins        about   it.    Maddaus does not show that this trial court action was
        an unreasonable response to the State' s failure to disclose information earlier.
        Thus, Maddaus fails to establish that the trial court abused its discretion in
        denying his request to impose the extreme sanction of dismissal for this arguable
        discovery violation.
               Furthermore, Maddaus does not show that the new information about
        Collins materially affected his ( Maddaus' s) right to a fair trial. Collins had first
        offered to be a State witness against Maddaus in exchange for a beneficial plea
        deal; but when the State refused his offer, Collins had testified instead for the
        defense. This information, thus reflected on Collins' credibility; and the jury had
        already heard  other information about Collins' credibility, namely that he had

        previously pleaded guilty to "[ p] ossession with intent, delivery, bail jumping,
        forgery, eluding theft of a motor vehicle, obstruction ofjustice and dominion over
        a    house for     drug       purposes."      13 RP ( Jan. 26, 2011) at 1648. Accordingly, we hold
        that the trial court did not err in denying Maddaus' s motion to dismiss or for a
        mistrial.

                                                       D. Cumulative Error"

        S'
              Defense       witness       Collins testified       at   trial that ( 1)   Tremblay had told him
             Collins) that he ( Tremblay) had accidentally                  shot   Peterson; ( 2) Jesse Rivera had
        told him ( Collins) that Peterson had been brought to Dan and Falyn' s house so
        Maddaus           could       talk to him; (    3) Peterson was handcuffed before being allowed
        into the house; ( 4) Rivera was in the house with Maddaus and others when the
        shots were fired outside the house; and ( 5) Tremblay and Peterson were outside
        when the shots were fired.



                                                                   10
No. 41795 -2 -II




       ss Maddaus' s asserted information that the State knew Tremblay would change
       his testimony is outside the record before us on appeal; therefore, we cannot
       consider it. McFarland, 127 Wn.2d at 335.


       56 The record does not show that defense counsel asked for additional time to
       review this new information or to question other witnesses.


        18)     The above changes in the text and addition of new footnotes will require


corresponding changes in text pagination and footnote numbering.

       We otherwise deny Maddaus' s motion for reconsideration.

       IT IS SO ORDERED.



       DATED this                         day   of ' ,                        2014.


                                                               t




                                                         Hunt, J.


I concur:




            A.C. J.




                                                 11
                                                                                              r"I L ED
                                                                                        C OURI' OF APPEALS
                                                                                            DWISION

                                                                                       2014 FEB 27   PN 12: 20
    IN THE COURT OF APPEALS OF THE STATE OF W

                                               DIVISION II                             By
                                                                                              DEPOMf




STATE OF WASHINGTON,                                                No. 41795 -2 -II


                           Respondent,


  V.

                                                       ORDER AMENDING CONCURRENCE
ROBERT JOHN MADDAUS,

                            Appellant.




       Appellant Robert         John Maddaus has     filed   a motion for reconsideration      of our


unpublished   opinion   filed   on   September 20, 2013.     I make the following changes to my

concurrence filed September 20, 2013.


       The concurrence introduction after the name of the judge and the first sentence of the

concurrence is changed to read as follows:


                concurring in the     result
                                      only) —      I concur with the result reached by the
       majority opinion but write separately to stress that Robert Maddaus had the right
       for a jury to find whether he is a persistent offender subject to incarceration for
       life without the possibility of parole under the Persistent Offender Accountability
       Act (POAA), RCW 9. 94A. 570.


       IT IS SO ORDERED.


       DATED this   rday /           of                                    2014.




                                                       Q91NN- BRINTNALL, J. P. T.
                                                                                                               AILED
                                                                                                      COURi OF APPEALS
                                                                                                            DIVISION li

                                                                                                    2013 SEP 20\ AM 9:. 5 7   t_.




                                                                                                                 CA6GTOIN


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION H

STATE OF WASHINGTON,                                                              No. 41795 -2 -
                                                                                               11


                                 Respondent,


        V.



ROBERT JOHN MADDAUS,                                                    UNPUBLISHED OPINION




        HUNT, J. —   Robert John Maddaus appeals his jury trial convictions for first degree felony

murder, first degree attempted kidnapping, second degree assault, and four counts of witness

tampering; he also   appeals   his Persistent OffenderAccountability Act' ( POAA) life sentence and


the   firearm sentencing      enhancements       for -his     murder,       attempted    kidnapping,     and   assault




convictions. He argues that ( 1) the'-Warrant- based search of his-residence was illegal; (2) the trial

court violated   his due   process rights   by   allowing him to be          restrained   during   trial; ( 3) the trial


                                                           4) his counsel rendered ineffective assistance for
                                            errors2;   (


court committed several       evidentiary




1 RCW 9. 94A.570.

2 More. specifically Maddaus challenges the trial court' s restricting his cross -examination of a
State   witness ( which    he farther   asserts violated      his   right   to   confrontation),   failure to hold an

evidentiary.hearing to address alleged governmental misconduct had occurred, and admission of
recorded jail phone conversations.
    No. 41795 -2 -H


                         3; (
                                                                                jury instructions                                6) the State
                                                                                                               erroneous4;   (




    several reasons             5)    some of      the trial         court' s                       were




    committed      misconduct            during     closing                            7) his two witness tampering convictions

    constituted double jeopardy, with insufficient evidence to support one of them; and ( 8) several
                                                                6.
    sentencing     errors warrant           resentencing.


              In•his Statement            of   Additional Grounds ( SAG), Maddaus asserts that ( 1) the. trial court


    erred   in   denying his          request     for   new appointed counsel; (            2) the -trial judge was unfairly biased

    against   him; (3)      the State committed prosecutorial misconduct by displaying. a Microsoft Power

    Point slide containing a photograph of Maddaus wearing a wig, with a circle and a slash

    superimposed over            it   and   the   word " GUILTY" written                beneath it, CP    at   978 ; and (4) cumulative




    3 More specifically, Maddaus contends that his trial counsel. rendered ineffective assistance in
    failing to object to ( 1) the trial court' s requiring that he wear restraints in court; (2) admission of
    recorded     jail   phone         conversations; (     3)        prosecutorial misconduct        during      closing   arguments; (    4)

                                                                             deadly                 and ( 5) a detective' s statement
    jury instructions on " substantial                   step"       and "              weapon' ;


    bolstering Abear' s testimony.

    4 More specifically, Maddaus challenges the. trial court' s refusal to instruct the jury on the lesser
    degree offense of third-degree assault, failure to instruct the jury that it must be unanimous about
    the alternative method used in committing the charged second degree assault and the first degree
    attempted kidnapping, and giving instructions on second degree assault and first degree
    attempted kidnapping that relieved the State of its burden to prove the essential elements of each
    crime. •




     s More specifically, Maddaus alleges that the prosecutor disparaged defense counsel; called the
     defense testimony "              poppycock," "        unreasonable              under the   law,"   and "   crazy "; suggested that
     Maddaus had " duped" the defense investigator; and presented prejudicial power point slides. Br.
     of Appellant at 50 -52.

     6 More specifically, Maddaus contends that his firearm sentencing enhancements violated his due
     process rights because the information charged him with only deadly weapon enhancements; the
     State failed to establish that he had two prior " strike" convictions for POAA purposes; and his
     POAA life sentence violated his equal protection and due process rights to a jury determination
     beyond a reasonable doubt that he had two prior qualifying convictions.


I                                                                                2
I
No. 41795 -2 -R



error violated his right to a fair trial.

          We remand to the trial court to vacate and to dismiss either Count VI or Count VII (both

witness    tampering)    with prejudice. •      We affirm Maddaus' s other convictions and sentencing

enhancements.



                                                           FACTS


                                                       I. CREVMS


                             A. First Degree Murder; Second Degree Assault

          In the evening      of    November 13,           2009, Jessica Abear was sleeping in Maddaus' s

residence when a group of three to four persons kicked down the door and entered. One of the

intruders   ordered   Abear ' to "[ f]
                                     reeze           and   held   a   gun   to   her head.     7 Verbatim Report of


Proceedings ( VRP) at 647. The intruders stole roughly $140,000 in drugs-and cash.

          When he returned home and learned about the robbery, Maddaus appeared " in a rage"

and suspected      that Abear had been involved.             7 VRP     at   653.     Attempting to elicit a confession,

he hit her on the head with the butt of a firearm, sprayed her three times with mace, ripped off

her   clothes, and shot    her ten times     with a paintball gun.            Maddaus then pointed the firearm at

Abear' s foot and threatened to shoot; but when he pulled the trigger, the firearm .did not

discharge.     Abear told Maddaus that she thought his drug supplier might be a suspect in the

robbery.     Maddaus called his supplier, relayed what Abear had said, and mentioned that he

 Maddaus)     needed    to " find   someplace   for [ Abear] to       go so   that   they [( Maddaus and his supplier)]

could get    the   information      out of [ her]"   and    that he ( Maddaus) "        was going to torture it out of

 her].     7 VRP at 656. Abear managed to run out and take shelter in a neighbor' s house until she

 was able to leave safely.



                                                              3
No. 41795 -2 -II



          The next day, Maddaus discovered a tape recording that contained a recorded phone

conversation    of   the   persons   involved in the robbery.          Although most of the voices were


unrecognizable,      Maddaus believed that       one      was    Shaun Peterson.   Late the next evening,

November 15, Maddaus met with Peterson and several friends ( Matthew Tremblay, Jesse Rivera,

Daniel Leville, and Falyn Grimes) to question Peterson about his involvement in the- robbery.

Peterson was handcuffed, and Maddaus was armed with a firearm and a knife. Nobody else was

armed. While questioning Peterson, Maddaus played the recorded phone conversation. Peterson

eventually walked out the front door; Maddaus followed him outside, after which Maddaus' s
friends   reported   hearing five     rapid   gunshots.         Immediately following the shots, Matthew

Tremblay saw Maddaus standing outside, pointing a firearm at Peterson,'who ran a short distance
before collapsing on the ground.

          Early the following morning, November 16, Olympia police responded to a report of

gunshots. They found Peterson on his back, having bled to death from multiple gunshot wounds.

Police found four empty bullet         casings and a cell phone near      Peterson' s   body. The cell phone

began to ring; the     caller   identified herself   as   Randi Henn, Peterson' s girlfriend. Henn told the


police that Peterson was involved in selling methamphetamine, that his drug source was

Maddaus, and that Maddaus had recently been robbed and had asked to meet Peterson that night.

          Several days later, police arrested Tremblay, who was believed to have been involved or

to have knowledge about Peterson' s murder. Tremblay told the police that ( 1) as he was placing

 items into Maddaus' s vehicle, he had seen Peterson speaking with Maddaus outside the house

 and   they had begun      to argue; ( 2) Maddaus fired roughly five      rounds   from   a   firearm; ( 3) as the


 firing stopped, Tremblay looked up and saw Maddaus pointing a smoking firearm at Peterson;


                                                           4
No. 41795 -2 -II



4) Tremblay and Maddaus fled to Josephine Lundy' s residence, where they unloaded items into

a large metal shipping container; and ( 5) Tremblay did not know what happened to the firearm
that Maddaus had used to kill Peterson.


           Tremblay later took the police to Lundy' s property, where Lundy consented to a search

of   her   residence and       property; nothing          of   evidentiary      value was   found.      Lundy also confirmed

many of the details that Tremblay had provided, including that Maddaus had contacted Lundy in
                              the l 6th   of November.
                                                                                             11
the early morning        on



           Emerald Akau,         who   had been recently               dating   Maddaus,     also    spoke with police.          She


confirmed Maddaus' s home address and stated that she had spent the night with him at his

residence on the evening ofNovember 16, the night after the murder.

           The police obtained a search warrant for Maddaus' s residence based on the information

obtained     during   their investigation.           This      warrant authorized      the   police     to   search   for: "[   A]ny

firearms, to include handguns, packaging for handguns, spent casings, new bullets, packaging for

bullets," any "    paintball guns, paintballs, marbles or                  items    associated with paintball guns,"             and




 handcuffs."       Clerks Papers ( CP)          at   9.    Executing the warrant, police found a paintball gun, a

handgun      and ammunition, and a set of                 handcuffs.      They also detected the faint odor of pepper

spray.


           Meanwhile, Maddaus had acquired a wig and a false passport bearing the name " Chad

Walker Vogt"       and a photo of           himself wearing        a   blond wig. 17 VRP          at   2003.    When asked why

he had the wig, he         stated, "   Because I knew there              was a warrant out          for my     arrest.   The police


wanted      to talk to   me.    I didn' t   want   to talk to them."        15 VRP at 1868. The police found this wig

 in Maddaus' s vehicle when they arrested him.



                                                                    5
No. 41795 -2 -
             II



                                                      B. Witness Tampering

            Theodore Farmer had             worked with          Maddaus selling       methamphetamine.             After Farmer


was caught carrying methamphetamine in November 2009, he provided Maddaus' s name to the

Thurston County Drug Task Force, became an informant, and agreed to perform three controlled

buys        from    Maddaus.            On November             14     or   15,   Farmer   called       Maddaus      to     purchase


methamphetamine, but Maddaus did not answer. Maddaus called Farmer back later and stated,

 I   can'   t talk. I' ll   either   be— I' ll talk to   you    in   person, or either   that,   or   I' ll be in jail." 1O.VRP at


1240 -41.


             While awaiting trial in jail, Maddaus repeatedly telephoned-his niece Chelsea Williams,

Grimes, Leville,            and   Farmer,    whom      he     called   three times, to establish a         false   alibi.   The jail

                                                 7
actively      monitored        these    calls.       During a three -way phone call with Williams and Farmer,

Maddaus         stated, "    Here' s the deal,       right?    These F * * *
                                                                           ing     phones are recorded all          the way."     11


VRP      at    1476.        Although Farmer initially agreed with Maddaus to provide false testimony,

Farmer later changed his mind and contacted the police.-




7 Before an inmate initiates a phone call, the phone system explains that the conversation will be
monitored.   A similar announcement is given to any party being dialed; that other party can
either accept the phone call or press a button to decline.

8
     Farmer later testified that he decided to                 contact police "[    b] ecause [ he] had received a call after
    Maddaus] had gotten arrested from the Thurston County Jail, and I knew that the phones were
recorded."         10 VRP at 1247.




                                                                       R
No. 41795 -2 -1I



                                                     II. PROCEDURE


          The State charged Maddaus with first degree murder ( alleging both premeditation and

felony    murder),   9 first degree attempted kidnapping, second degree assault of Abear ( assault with

a deadly weapon), and four counts of witness tampering (two based on his contacts with Farmer

from the jail).10 The first degree murder, attempted kidnapping, and assault charges each carried

a     sentencing   enhancement    allegation     that "[   Maddaus] was armed with a deadly weapon, a

firearm." CP at 21 -22.


                                                A. Pretrial Motions


                                   1.    Search warrant; motion to suppress


          Maddaus moved-to suppress the search warrant of his residence, arguing lack of probable

cause to authorize a search for firearms.11 The trial court denied the motion, ruling that there
was a sufficient nexus between the firearm sought and Maddaus' s residence.
                                                  '

                                                2. Maddaus' s letter


           Several weeks before trial, the State received a letter through the mail with no return

address.     The prosecutor' s receptionist opened the letter, reviewed it, and determined that it

appeared     to be   correspondence     from Maddaus to his defense attorney.. The prosecutor' s office




9 The first degree murder charge was based on premeditation or, in the alternative, felony murder
 during the attempted second degree kidnapping of Peterson).

 10 The State also charged Maddaus with two counts of first degree unlawful possession of a
 firearm. These separate firearm possession counts are not at issue in this appeal.

 11
      More specifically, Maddaus        stated, "[   W]hat I' m concerned about is only the gun, nothing else
 that was taken out of the trailer."       VRP (Aug. 12, 2010) at 58.



                                                            7
No. 41795 -2 -II



provided a copy of this letter to Maddaus' s counsel. Maddaus alleged governmental misconduct,
                                                                                                                    12
namely that      someone at     the jail had   copied and mailed        the letter to the   prosecutor' s office.




          Maddaus moved to continue the trial, to conduct a formal hearing to investigate how the

letter   came    into the State'   s possession, and     to dismiss.       The prosecutor' s sworn declaration in


opposition stated:



          I directed ...   the   receptionist ...    to not discuss with anyone whatever contents ( of
          the letter) he may have seen, and to make a copy and dispatch it to defense
          counsel.    I further directed that the original be kept, sealed, in the office until
          further order. I have not read what may or may not be a letter, or copy of a letter,
          written to [ Maddaus' s attorney].

CP at 283. At the hearing on Maddaus' s motion, the prosecutor further explained,

          I told [ the   mail    handler] I don' t    want   to   see   it. I don' t want to hear about it.
          Don' t talk to anyone about it, and let' s just freeze -rame this thing, seal it up,
                                                                 f
          copy it, send a copy to [ defense counsel] so he knows what' s been going on, and
          seal   it up because it might be ... evidence of wrongdoing....
                     Now, Your Honor, consider the context of what' s going                      on   here.   Mr.
          Maddaus, no stranger to the criminal justice system, fair to say con - ise, and
                                                                                     w
          familiar with the ways of manipulation, familiar with tampering with witnesses,
          we allege, who has violated court orders, who has been sitting in the j ail for a year
          and comes up with a gimmick. And the gimmick is all I' ve got to do is send a
          copy of a letter or have somebody do it for me, and I can raise a ruckus and
          perhaps derail this prosecution.


VRP (Dec. 21, 2010) at 70. The trial court denied the motions to continue and to dismiss. VRP

 Dec. 21, 2010) at 75.




12
     Maddaus based this allegation on the envelope' s label and the address' s having been written
with a felt tip marker. According to Maddaus' s counsel, the letter was a copy of correspondence
that Maddaus had sent him months earlier, and it contained information that only Maddaus knew.
At the subsequent hearing, Maddaus' s attorney stated, "[ I]t' s my understanding that the inmates
do not have access to the white labels. They do have access to those types of envelopes ... but
not access-to a felt tip pen." VRP (Dec. 21, 2010) at 55.
No. 41795 -2 -II



                                                 3. Potential impeachment

          Maddaus moved in limine to be able to cross -examine Leville about his uncharged crimes

to    show    bias.     The trial court ruled that Maddaus could cross -examine Leville about his

uncharged crimes, with or without a                   formal     plea agreement.      The trial court reserved ruling on

the scope of cross -examination.


                                                                 B. final

                                                            1.   Restraints


           Over defense counsel's objection and without articulating its* reasons, the trial court

ordered Maddaus to wear a shock device and a leg restraint during trial. Before the jury entered,

Maddaus' s counsel told the trial court he was concerned that the jury would notice the leg

restraint if Maddaus were asked to walk to the witness stand in the jury' s presence. In response,

the trial court allowed Maddaus to take the stand before the jury entered.

           The next day, Maddaus' s counsel again notified the court that Maddaus was wearing a

shock     device      and   that he    was concerned         that the   jury   might notice       it.   In response, the court


arranged several tables to block the jurors' views of the shock device. Maddaus' s counsel agreed

with this arrangement and acknowledged that the jurors would not see his shock device.

           The next week, Maddaus' s counsel again notified the court that he believed the jurors

 could    see   the device     on   Maddaus'      s   leg   because he      was "   wearing   more constrictive pants."      7


 VRP     at   628.    The trial court placed several pieces of cardboard around Maddaus' s table, which
                                                               -

     look[ ed] like    exhibits,"     to   block the jurors'       views.     7 VRP   at   629.    Maddaus' s counsel again


 agreed with this arrangement and acknowledged that the jurors would not see Maddaus' s

 restraints.
i

    No. 41795 -2 -II

i
I
                                             2. Detective Johnstone' s testimony

               The State called Detective Chris Johnstone as a witness and asked whether he had

    interviewed Abear         during      his investigations.       Johnstone    replied that    he had.       When the State


    asked, "    And the facts that she testified about, is that what you [ previously] interviewed her

    about[ ?],"    Maddaus objected on hearsay grounds, and the trial court sustained the objection. The

    State then     rephrased      the   question,   asking, "[   T]he subject matter of your interview [ with Abear],

    was   it   similar   to her   testimony here     at   trial ?" Johnstone   replied, " Yes,   it   was."   8 VRP at 825 -26.


    Maddaus did not object to this rephrasing.

                                                3. Leville' s Cross -
                                                                    examination


                Maddaus questioned Leville about several of his ( Leville' s) uncharged crimes, including

    heroin,      methamphetamine,           marijuana       possession,   and     identity   theft.      Leville denied any

    knowledge of or involvement with these crimes. The State objected, arguing that these inquiries

    involved specific instances of alleged misconduct, contrary to ER 608. The trial court ruled:

                Evidence of character or conduct of a witness [ f] the purpose of attacking or
                                                                  or
                                                        other than convictions of crime, which you
                supporting a witness' s [ credibility] —
                have done, may not be proved by extenuating evidence. They may, however, in
                the discretion of the court, be probative as to truthfulness or untruthfulness. I
                have let    you go on.....          I will not let you go into further specific incidents of
                conduct at this point.


     10 VRP at 1129 -30 ( emphasis added).


                                                           4. Jury instructions

                Maddaus requested a lesser degree offense jury instruction for either third or fourth

     degree assault. The trial court declined because " there [was] no evidence of criminal negligence




                                                                    10
    No. 41795 -2 -II



    or assault    in the fourth degree, that it' s simply               assault   in the   second   degree   or not   guilty."   16


    VRP at 1952.

               For count I, first degree murder, the trial court instructed the jury on both premeditation

    and   felony     murder.     For     felony   murder,    Instruction 10       provided, "[   O] n or about November 16,


    2009 ...     the defendant was committing or attempting to commit the crime of kidnapping in the

    second     degree."      CP at 426. Instruction 10 further provided:

                      If you find from the evidence that each of the elements in Alternative A [,
               premeditated murder,] or each of the elements in Alternative B [, felony murder,]

               has been proven beyond a reasonable doubt, then it will be your duty to return a
               verdict of guilty. All of the elements of only one altemative need be proved. You
               must unanimously agree as to which one or more of the alternatives, A or B, has
               been.proved beyond a reasonable doubt.

    CP at 426.

               For   count   IV,   second    degree     assault,   Instruction 17    provided, " An    assault is an intentional


                                   or]    shooting     of another person," or " an act ...          done with intent to inflict
    touching     or   striking[,


    bodily injury upon another, tending but failing to accomplish it and accompanied with the
     apparent present        ability,"    or " an act ...        done with intent to create in another apprehension and


    fear of bodily injury, and which in fact creates in another a reasonable apprehension and
                                                       CP        433.   The " to              instruction    provided, "[   O] n or
     imminent fear        of   bodily injury."              at                     convict"




     about   November 13, 2009, the defendant                    assaulted   Jessica R. Abear    with a   deadly   weapon."      CP


     at   434 ( Instruction 18).          Instruction 30         stated, "   A firearm, whether loaded or unloaded, is a


     deadly    weapon."        CP at 446. Finally, the " to convict' ' instruction for count III, Maddaus' s first
     degree     attempted       kidnapping        of   Abear,     provided, "[     O] n or about November 13, 2009, the




7                                                                       11
    No. 41795 -2 -II



    defendant did an act that was a substantial step toward the commission of kidnapping in the first

    degree."     CP at 437 ( Instruction 21).

             For counts I, III, and IV, the State sought special verdicts that " the defendant was 'armed

    with a   deadly weapon         at   the time   of   the   commission of         the   crime[ s]."   CP at 447 (Instruction 31).


    The   special verdict         instruction     provided, "      A pistol, revolver, or any other firearm is a deadly

    weapon whether          loaded      or unloaded."         CP   at   447 ( Instruction 31).      Other than requesting a lesser

    included offense instruction, Maddaus did not object to the trial court' s instructions.

                                                         5. Closing arguments

             During closing, the State argued:

                Y] ou can consider the reasonableness of the witness' s statements in the context
               of the other evidence. Consider, for example, Mr. Maddaus' s testimony that he—
             what       did he say? He          asked   to   put   the handcuffs on Mr. Peterson?             And Peterson
                  I mean, that's poppycock. That' s unreasonable under the law. That' s crazy.
               did?
             Nobody voluntarily puts handcuffs on themselves, and besides, we have evidence,
             of course, that Mr. Peterson was literally under the gun at the time the cuffs were
               put on him.


                C] ounsel for the        accused argued         that    they —they worked hard, [ Defense Counsel]
               worked      real    hard    at   finding       witnesses.         The evidence, however, ladies and
               gentlemen,       the   evidence about         the defense        witnesses suggests otherwise. ...       I' m

               not suggesting Mr. Wilson of wrongdoing; I'm just suggesting that [ Defense
               Counsel],      like Chelsea Williams, was duped into being this defendant' s agent.
                I' ve   got   somebody that' s          got    this information.' `           Oh, we' ll go talk to that
               person."',



               Counsel for the' accused' s argument was a reminder of the distractions that
               sometimes people create when they' re passengers in a vehicle. You' re driving
               down the highway, and you' re [ focused] on paying attention to what' s going on in
               front of you and keeping your eye on the rear -view mirror, and someone says,
                Look     over   there. Look over there."                That' s what the argument was about. It was
               all about everything but the proof of Mr. Maddaus' s guilt.

               What you heard in the defense case, those witnesses from the defense in the
               defense argument, was the last gasp of this defendant, the last gasp, the last effort


                                                                           12




i
No. 41795 -2 -II



       to develop lies to try to convince you ofwhat he' s not, that he' s innocent, and he' s
       not. The last gasp.

17 VRP     at    1984, 2074 -75, 2077 (           emphasis added).          Maddaus did not object to any of these

statements.




       The State         also presented         Microsoft PowerPoint         slides   during   its closing   argument.    One


slide depicted Maddaus wearing the wig that detectives had recovered from his vehicle.

Surrounding the photo were capitalized captions describing various evidence used by the State,

including: " JAIL            PHONE .CALLS," " FALSE ALIBI ATTEMPT," DISGUISE AND COVER -


UP," " FUGITIVE," THREATS TO KILL," " MOTIVE," " TELEPHONE RECORDS,"                                                      and




               EVENTS."
 EYEWITNESS TO .                                 CP    at   978.   Each caption included an arrow pointing towards

Maddaus'   s    photo        at   the   center, with   the   word "   GUILTY"     superimposed over          his face.   CP at


978. Maddaus did not object to this slide.

        It appears that the State displayed this slide as the prosecutor made the following closing

remarks:




                Maddaus] adopted a disguise. He worked on a cover - p, and he worked
                                                                         u
        like heck on this false alibi. I was in Tumwater. I was [ getting] a tattoo. And the
        jail phone calls where he' s pumping at Grimes and Leville. He' s working on
                                      -
        Theodore Farmer. He' s working on Chelsea Williams because he' s guilty. and
        he'     s got   to    get out    from   underneath all     that   evidence.   This defendant, ladies and
        gentlemen, this defendant, is the only one with motive, the only one with the
        means and the only one who is guilty of murder in the first degree. He is guilty of
        all the crimes alleged in the Information.  He is guilty as charged, ladies and
        gentlemen, and guilty as proven.


 17 VRP at 2015. Maddaus did not object to these statements.




                                                                    13
No. 41795 -2 -II



                                        C. Conviction and Sentence

         The   jury   found Maddaus ' guilty     of (   1)   first degree   felony   murder, (   2) two counts of


unlawful    possession    of a   firearm, ( 3)   first degree     attempted      kidnapping, ( 4) second degree

assault, and ( 5) four counts of witness tampering. The jury returned special verdicts for firearm

enhancements on the first degree murder, attempted kidnapping, and second degree assault

charges.



          At sentencing, the State   provided certified copies of         Maddaus'   s criminal   history. 13 When

the court asked if there was any dispute as to his criminal history, Maddaus' s attorney replied,

 No, Your Honor, there'       s not."    VRP ( Feb. 8, 2011)         at   124.    Because* of his   prior " strike"




offenses, the trial court sentenced Maddaus under the POAA, RCW 9.94A.570, to life without

the possibility of early     release.    Maddaus appeals his convictions, POAA life sentence, and


firearm sentencing enhancements.

                                                  ANALYSIS


                                            I. SEARCH WARRANT


          Appellate counsel argues in his brief and Maddaus asserts in his SAG that the -State' s

search of Maddaus' s residence was improper ' under the Fourth Amendment14 and the

Washington constitution because the affidavit in support of the search warrant lacked probable




 13
      Among other crimes, Maddaus had previously, been convicted of two prior " strike" offenses:
 possession of a controlled substance with intent to deliver while armed with a deadly weapon
 and second degree assault while armed with a deadly weapon.

 14 U.S. CONST. amend. IV.



                                                             14
No. 41795 -2 -
             II



cause.     In the       alternative,    he argues for the first time on appeal that the search was


unconstitutionally overbroad. These arguments fail.

                                            A. Standard and Scope of Review

          We review the issuance of a search warrant for abuse of discretion. State v. Maddox, 152

Wn.2d 499, 509, 98 P. 3d 1199 ( 2004).                   But we give great deference to the issuing judge or

magistrate' s determination of probable cause. State v. Neth, 165 Wn.2d 177, 182, 196 P. 3d 658

 2008).    We find no abuse of discretion here.

          A defendant waives the right to challenge the admission of evidence gained in an illegal

search or seizure       by failing     to   move   to   suppress    the   evidence at   trial., See State v. Mierz, 127



Wn.2d 460, 468, 901 P. 2d            286 ( 1995); State v. McFarland, 127 Wn.2d 322, 333 -34, 899 P. 2d

1251 ( 1995).      We will not address such unpreserved alleged errors unless he can show that this

issue    meets   the   manifest constitutional exception of           RAP 2.5( a)( 3).    15 At trial, Maddaus moved

to   suppress    only the firearm, alleging lack          of probable cause.       He did not seek to suppress any

other items of evidence, the admissibility of which he now attempts to challenge for the first time

on appeal.   16 Because he does not meet his burden to show that his new challenge falls within the




15 A defendant may raise an argument for the first time on appeal only if it is a manifest error
affecting a      constitutional right.         RAP 2. 5( a)( 3).,    An error is manifest if it has practical and
identifiable     consequences      or       causes actual prejudice to the        defendant.     State v. Nguyen, 165
Wn.2d 428, 433, 197 P. 3d 673 ( 2008).


 16 Maddaus did not move below to suppress any other items now argued on appeal, such as
 clothing; notes and records to establish dominion and control; notes and records that relate to the
 distribution or sales of controlled substances; computers; media storage devices; cell phones;
 surveillance equipment; packaging for handcuffs and documentation or receipts for handcuffs;
 and drugs and paraphernalia.


                                                               15
i




    No. 41795 -2 -
                 II



    RAP 2. 5( a)( 3)           exception to the preservation requirement, we address only his preserved

    challenge to the firearm.

                A valid search warrant requires probable cause. U.S. CONST. amend. IV; WASH. CONST.

    art.   I,   sec.    7.     In order to establish probable cause, the supporting affidavit must provide

    sufficient -facts to persuade a reasonable person that the defendant is probably engaged in

    criminal activity and that evidence of criminal activity probably can be found at the place to be

    searched.          State   v.   Lyons, 174 Wn.2d 354, 359, 275 P. 3d 314 ( 2012).                    Similarly, the affidavit

    must identify with particularity the place to be searched and the items to be seized. Lyons, 174

    Wn.2d       at   359.      A court evaluates a search warrant affidavit " in a commonsense manner, rather


    than   hypertechnically,           and any    doubts   are resolved     in favor   of   the   warrant."    State v. Jackson,


    150 Wn.2d 251, 265, 76.P. 3d 217 (2003).

                                                  B. Affidavit of Probable Cause


                The     search warrant affidavit       described       Trebnblay' s   account     to   police —that   he had been


    present at the time of the shooting, that he had seen Maddaus pointing a firearm at Peterson

    immediately following the shots, and that he and Maddaus had gone to Lundy' s residence. The

    affidavit also explained that a police search of Lundy' s residence and property did not uncover

    any firearms and that Akau had told police that Maddaus had spent the following night after the

    shooting at his own residence.

                The affidavit then summarized the evidence police expected to find at Maddaus' s

    residence as follows:


                The     residence      that Maddaus[]      went   to   immediately following the murder .... is
                roughly        one mile     away from [ his] residence. ...       We did not locate anything of
                 evidentiary        value   to this investigation at [ Lundy'    s residence].         It is believed that




                                                                       16
No. 41795 -2 -II



        the evidence of the crime to include the handgun used may be located at
       Maddaus' [ s]         address ...       as the result of the close location and the fact the
        evidence was removed               from [ Lundy'   s residence].       Therefore it is believed to have
        been    removed andmay be concealed in the home,                       mobile   home[,]   or outbuildings

        located at [ Maddaus' s address].


CPat8.


        Relying on State v. Thein, Maddaus argues that generalizations about the habits of
criminals cannot provide' sufficient probable cause                    to   authorize a search.   Br. of Appellant at 20


 citing State   v.   Thein, 138 Wn.2d 133, 148 -49, 977 P. 2d 582 ( 1999)).                  Maddaus is correct that ( 1)


the search warrant in Thein " involve[ d] nothing more than generalizations regarding the common

habits of drug dealers and lack[ ed] any specific facts linking such illegal activity to the residence

searched ";   and ( 2) it is not reasonable to infer that evidence is likely to be found in a certain

location simply because police do not know where else to look for it. Thein, 138 Wn.2d at 148,
150. But the facts here are distinguishable from those in Thein, which, thus, does not apply.

        Here, the affidavit contained two specific facts that provided probable cause to believe

that the   firearm    used   in the   murder could    be found         at   Maddaus'   s residence: (   1) There was close


physical proximity between Maddaus' s residence and Lundy' s residence, where Maddaus had

visited immediately after the .shooting; and ( 2) Maddaus had spent the night following the

shooting at his residence, providing close proximity of time between the crime and the location

to be searched. Here, the affidavit' s provision for a firearm' s search was not based on a Zack of

facts, as in Thein; nor was it based solely on an inference that the firearm' s absence from one

 location (   Lundy' s       nearby    residence)    necessarily permitted a search of another location

 Maddaus'     s residence).      Thein, 138 Wn.2d          at   150.    On the contrary, the affidavit recited a series

 of facts about Maddaus' s location immediately following the shooting; it was reasonable to .



                                                                 17
    No. 41795 -2 -II
i


    assume that evidence of the crime could be recovered from his residence if not found in Lundy' s,
i
    where he had gone before going home.

                                    C. Overbreadth Challenge not Properly before Us

           Maddaus argues for the first time on appeal that the search warrant was overbroad in its

    use of the term " firearms" because the supporting affidavit did not suggest that " rifles, shotguns,

    or other        barreled
               long -           guns were           involved in the   crime"   Reply Br. of Appellant at 9. We do not

    address the merits of this challenge because Maddaus failed both to preserve it for appeal and to

    establish an exception to RAP 2. 5( a)( 3)' s preservation requirements.


           At the CrR 3. 6 hearing below, Maddaus argued only that the search warrant authorizing

    the search for firearms was invalid for lack of probable cause; he did not argue that it was

    overbroad, as he now argues here. A defendant' s motion to suppress must state a specific ground

    of objection.    ER 103(        a)(   1).    Even if the defendant objected at trial, he may assign error in the

    appellate   court   only   on    the        specific ground of   that evidentiary   objection.   Dehaven v. Gant, 42


    Wn.   App.   666, 669, 713 P. 2d 149 ( 1986) (            citing State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d

     1182 ( 1985); State       v.   Boast, 87 Wn.2d 447, 451, 553 P. 2d 1322 ( 1976)).                  Thus, we do not


     address Maddaus' s newly raised overbreadth argument unless he meets the preservation

     requirements    of   RAP 2. 5( a)( 3).           Maddaus does not, however, argue that his new overbroad


     challenge is a manifest error affecting a constitutional right, justifying departure from the




                                                                      18
     No. 41795 -2 -H



     preservation requirement            of   RAP 2. 5(   a)(   3).   Accordingly, we do not address his unpreserved
                                                                                 17
     alternative overbreadth challenge              to the   search warrant.



                                                      IL RESTRAINTS IN COURTROOM


                Maddaus next argues that the trial court violated his due process rights by allowing him.

     to be restrained at trial with a leg brace and shock device absent a showing of " impelling

                    and      that his. counsel was ineffective           in   failing   to   object   to these   restraints.   Br. of
     necessity"


     Appellant at 27. These arguments fail.


                A defendant in a criminal case is entitled to appear at trial free from. all bonds or shackles

     except     in extraordinary        circumstances.          State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967

      1999).      Shackling or handcuffing infringes on a defendant' s right to a fair trial for several

     reasons, including that it violates a defendant' s presumption of innocence. Finch, 137 Wn.2d at.
     844.       In order to protect the defendant' s rights, the trial court must exercise discretion in

     determining the extent to which restraints are necessary to maintain order and to prevent injury,
     supported      by   a   factual basis    set   forth in the      record.   Finch, 137 Wn.2d at 846 ( citing State v.

     Hartzog,      96 Wn.2d. 383, 400, 635 P.2d 694 ( 1981)).                    Nevertheless, a claim of unconstitutional


     shackling. is subject to a harmless error analysis. State v. Jennings, 111 Wn. App. 54, 61, 44 P. 3d
      1 ( 2002) (   citing State v. Damon, 144 Wn.2d 686, 692, 25 P.3d 418, 33 P. 3d 735 ( 2001)).

                 Although the record does not reflect the trial court' s reasons for restraining Maddaus, we

     hold that any error in .doing so was harmless in light of the trial court' s repeated efforts to


      17                                                                                                         2) he identifies no
           We   note   that ( 1)   no        barreled
                                        long -               guns were seized under           the   warrant, (


      other evidence seized under the challenged portion of the warrant that was used to convict him,
      and (3) Maddaus does not point to any prejudice that flowed from the challenged language.


                                                                        19


I.
    No. 41795 -2 -II



    prevent any prejudice that might have flowed to Maddaus if the jury had seen these restraints.

    On multiple occasions before the jury returned to the courtroom, defense counsel notified the

    court about his concern that Maddaus' s shock device or leg brace might be visible to the jury.

    Each time, the trial court accommodated Maddaus' s requests by having him take the stand before,

    the jury entered and by arranging the defense table in such a way as to block the jurors' view of
    Maddaus'     s restraints.   Consequently, the record contains no evidence that any member of the

    jury ever saw these restraints and, thus, no possibility of prejudice to Maddaus.
               We hold that, because the jury did not see Maddaus' s restraints, there was no prejudice to

    him, and any error in ordering Maddaus to wear them was harmless. Jennings, 111 Wn. App. at
    61.   And because Maddaus fails to show prejudice, he also fails to show ineffective assistance

    where defense counsel initially objected to the restraints, persuaded the trial court to recognize a
                                                                                                                     l$
    potential problem, and       then   worked with   the   court   to block the jury' s   view of the restraints.



                                             III. OTHER EVIDENTIARY ISSUES


               Maddaus    raises   several   evidentiary    challenges,    some    for the first time    on appeal.       In


    general, we review a preserved trial court' s evidentiary rulings for. abuse of discretion. State v.

    Darden, 145 Wn.2d 612, 619, 41 P. 3d 1189 ( 2002).                   A trial court abuses its discretion when it




     18
          We   review   ineffective     assistance   of counsel      claims   de   novo.     In re Pers. Restraint of
     Monschke, 160 Wn.      App.                                     In reviewing claims of"ineffective
                                        479, 490, 251 P. 3d 884 ( 2010).
     assistance, we begin with a strong presumption that counsel was effective, including that counsel
                                                   for failing to object. See, e.g., State v. Grier, 171
     may have had legitimate strategic reasons
     Wn.  2d 17, 32 -33, 246 P. 3d 1260 ( 2011). A person claiming ineffective assistance of counsel has
     the burden to establish that counsel' s performance both ( 1) was so deficient that it deprived the
     defendant of his constitutional right to counsel and .(2) prejudiced the defendant' s case. Failure
     toestablish either prong is fatal to an ineffective assistance of counsel claim. Strickland v.
     Washington; 466 U.S. 668; 687 -88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); . State v.
     Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996).


                                                               20


i
No. 41795 -2 -
             H



bases its decision on untenable grounds or reasons. State v. Thompson, 173 Wn.2d 865, 870, 217

P. 3d 204 ( 2012).      If the defendant failed to preserve an evidentiary challenge with a specific

objection below, we may address its merits for the first time on appeal if he establishes that the

error is manifest and of constitutional magnitude for purposes of the RAP 2.5( a)( 3) exception.

We address each evidentiary challenge in turn; ultimately, all fail to provide grounds for reversal.

                                         A. Leville' s Cross -examination


           Maddaus argues that the trial court violated his right to confrontation by restricting his

cross -examination of Leville about the prosecutor' s failure to charge Leville with various crimes.

The cross -examination of a witness to elicit facts that tend to show bias, prejudice, or interest is

generally a matter of right; but.the scope or extent of such cross -examination is within the trial

court' s   discretion. State   v.   Roberts, 25 Wn. App. 830, 834, 611 P. 2d 1297 ( 1980) (              citing State v.

Robbins, 35 Wn.2d 389, 213 P.2d 310 ( 1950));           see also      ER 607, 611( b).    A trial court may, in its

discretion, reject cross -examination where the circumstances only remotely tend to show bias or

prejudice, where the evidence is vague, or where the evidence is argumentative or speculative.


Roberts, 25 Wn. App. at 834 ( citing State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 ( 1965)).

           The record does not support Maddaus' s contention that the trial court unconstitutionally

restricted    his   cross -examination.    On the contrary, the record shows that, in both its ruling in

limine and at trial, the court allowed Maddaus to cross -examine Leville about a number of his

                                                                                                        19
uncharged       crimes,   including drug      possession,    flight   risk,   and   identity   theft.        Only after




 19 The following is an example of such cross- examination:
            Maddaus'              July you were picked up on a material witness warrant, but
                        s counsel]:

           you were also picked up. because Pretrial Services said you were attempting to
           take off, correct? You were going to go wherever the wind blew you?



                                                        21
No. 41795 -2 -II



permitting extensive questioning did the trial court sustain the State' s objection and curtail

Maddaus' s continuing into other specific instances of misconduct for the reason that this

evidence was not relevant under            ER 608.     Because this reason was not untenable, we hold that


the trial court did not abuse its discretion in its limiting the scope of Leville' s cross -examination

during trial.

                  B. Evidentiary Hearing about State' s Handling of Maddaus' s Letter

        In both his counsel' s brief and his SAG, Maddaus contends that the trial court erred in

denying his request for an evidentiary hearing to determine whether the State had engaged 'in




         Leville]:     They said I was a flight risk, and that' s what I' did say to them. I said
        something to that effect.
         Maddaus'      s counsel]:   And you were arrested at your place, correct?
         Leville]:     At my home, yes.
         Maddaus'      s counsel]:   And when you were arrested, you were found with some
        heroin; isn' t that true?
         Leville]: No.
         Maddaus'      s counsel]:   You were found with some methamphetamines; isn' t that
        true?
         Leville] : No.
         Naddaus'      s counsel]:   How about some marijuana?
         Leville]: No.
         Maddaus'      s counsel]:   And identity theft.
          Leville]: No.
          Maddaus'     s counsel]:   Nothing.
                   I wasn' tI wasn' t arrested. I was at my home. I didn' t have anything
          Leville] :
         on me.  I wasn' t -=when they pulled up on me, I had just      my friend had just
         driven away, and they pulled up. I didn' t have anything on me, no.
          Maddaus'     s counsel]:    It   was   in   your vehicle   though,* wasn' t it? A Volkswagen

         truck.
          Leville] :   I believe they found something in my vehicle, yes.
          Maddaus' s     counsel]:   Heroin, correct ?"
 10 VRP at 1126 -27.


                                                            22
No. 41795 -2 -II



governmental misconduct after it received a copy of a letter that Maddaus had sent to his

attorney. He also asserts in his SAG that he received ineffective assistance of counsel based on
the trial court' s denial of Maddaus' s motion to continue to investigate potential governmental

misconduct. We disagree.


         We review for abuse of discretion a trial court' s denial of an evidentiary hearing to

investigate       possible governmental misconduct.                 See CrR 8. 3(      a), (   b).    A trial court may abuse its

discretion by failing to hold an evidentiary hearing when presented with an issue of fact

requiring     a   determination      of witness   credibility.          Harvey v. Obermeit, 163 Wn. App. 311, 327,

261 P. 3d 671 ( 2011) (       citing Woodruffv. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 ( 1994)).

         A defendant' s right to counsel is protected by the federal and our state constitutions. U.S.

CONST.    amend.      V, VI; WASH. CONST.             art.   I   sec.   22.   The constitutional right may be violated

when    the   government       wrongfully intercepts             protected    attorney- client         communications.      State v.


Cory,   62 Wn.2d 371, 377, 382 P. 2d 1019 ( 1963).                       After notice and hearing, the trial court may

 dismiss any criminal prosecution because of arbitrary action or governmental misconduct that

has prejudiced a defendant' s right to a fair trial if the defendant has shown governmental
                                                                                                     trial20




 misconduct        that   resulted   in   prejudice   affecting his       right   to   a   fair                CrR 8. 3( b); State v.


 Garza, 99 Wn.        App.    291, 295, 994 P. 2d 868 ( 2000) (               citing State v. Michielli, 132 Wn.2d 229,




 20 In certain egregious cases, prejudice may be presumed. See, e. g., Cory, 62 Wn.2d at 372 ( jail
                                               defendant and his attorney); State v. Perrow, 156
 secretly recorded conversations between the
 Wn. App. 322, 326, 231 P. 3d 853 ( 2010) ( state detective wrongfully seized attorney- client
 writings during search of residence and delivered writings to the State' s prosecution
                                                                                        team); State

 v.   Granacki, 90 Wn.  App. 598; 600, 959 P. 2d 667 (                        1998) ( state detective read from defense

 counsel' s legal pad during a court recess).



                                                                   23
    No. 41795 -2 -H



    239 -40, 937 P. 2d 587 ( 1997)).              Here, there was no showing of governmental wrongdoing or

    interference with Maddaus' s attorney -client communications.

           Unlike the facts in Garza,21             Maddaus made no offer of proof to the trial court identifying

    any wrongdoing by the State in the prosecutor' s receptionist' s handling of his letter after

    receiving it in the      mail.    Rather, he asserts only that it was unlikely that he could have been

    responsible      for his letter' s reaching the prosecutor'               s office.     And although the trial court did not


    hold a full evidentiary hearing into the matter, it did conduct a hearing on Maddaus' s motions,

    which revealed that, after the prosecutor' s office discovered the letter was apparently from

    Maddaus to his attorney, the prosecutor sealed the original, without reading it, and turned over a

    copy to Maddaus' s counsel.

           We find no abuse of discretion in the trial court' s handling of this issue. With respect to

    Maddaus' s ineffective assistance of counsel, claim, he fails to provide any facts or reasons about



    21 In Garza, jail officials seized and examined several defendants' legal documents after the
    defendants had attempted escape. One inmate witnessed one of the officers reading these legal
    materials. The trial court denied the defendants' motion to dismiss. Garza, 99 Wn. App. at 293-
    95. Division Three of our court held that the trial court had abused its discretion by denying the
                                      -
    motion to dismiss without first holding an evidentiary hearing to determine whether the security
    concerns      justified       such       an   extensive        intrusion         into     the   defendants'      attorney -client
    communications.          Garza, 99 Wn.         App.      at   301.    Division Three remanded for the trial court to
    conduct an evidentiary hearing, with instructions that if the defendants were able to establish that
    the jail    officers'   actions      violated    their    right      to    counsel,     the trial   court "   should fashion an

     appropriate remedy, recognizing that dismissal is an extraordinary remedy, appropriate only
    when other,  less severe sanctions will be ineffective." Garza, 99 Wn. App. at 301 -02.


    22 See, e. g., Reply Br. of Appellant at 21:
               The    attendant   circumstances —       including [ Maddaus' s] lack of access to a copy
               machine, the type of pen used; or the kind of envelope used, combined with the
               sheriff   department'     s   access to the letter —suggest            that the action was not taken by
               Maddaus].
     Emphasis added).



                                                                         24

E
No. 41795 -2 -11



why his counsel' s performance was deficient or how counsel' s performance prejudiced him.23
Thus, this claim also fails.

                                      C. Recorded Phone Conversations


        For the first time on appeal Maddaus argues that the trial court* erred in admitting

recorded phone conversations between him and several individuals he had contacted through the

jail' s telephone   system,   allegedly in        violation of   the Washington "    Privacy   Act ", chapter 9.73


RCW.     Maddaus also argues that his trial counsel provided ineffective assistance in failing to

object to the admission of these recorded phone conversations.


                               1.    Failure to preserve issue for direct appeal


        The Washington        Privacy Act         provides a   statutory,   not a constitutional, right.   Because


Maddaus failed to object to admission of these phone conversations at trial, he does not meet the

manifest constitutional error exception to the preservation requirement of RAP 2. 5( a)( 3).

Therefore, we do not further consider this issue directly. See State v. Sengxay, 80 Wn. App. 11,

15, 906 P. 2d 368 ( 1995) ( citing     State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 ( 1993)).

                                      2. Ineffective assistance of counsel


        Maddaus also collaterally challenges this evidence by alleging that his counsel' s

performance was deficient in failing to object to the admission of these recorded phone

conversations, which, he claims violated Washington' s Privacy Act. See Strickland, 466 U.S. at

 687 -88; ' Hendrickson; 129 Wn.2d           at   77 -78.   In assessing whether counsel' s performance was

 deficient; Maddaus     must        show   that ( 1)   counsel' s failure to object fell below an objectives




 23 Strickland, 466 U.S. at 687 -88; Hendrickson, 129 Wn.2d at 77 -78.



                                                            25
No. 41795 -2 -1I



standard of reasonableness, (             2) the proposed objection would have been sustained, and ( 3) the

result of the trial would have differed. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 714, 101

P. 3d 1 ( 2004).


          Under Washington' s              Privacy     Act, it is       unlawful      for any "   individual, partnership,

corporation,      association, or         the    state of   Washington ...          to intercept or record any [ p] rivate

communication            transmitted   by   telephone ...       between two         or more   individuals ...    without first


                                  all the                      in the   communication.        RCW 9. 73: 030( 1), (   2).   Our
obtaining the      consent of                   participants




Supreme Court has recently held that recording an inmate' s telephone conversations does not

violate    Washington' s        Privacy         Act,   which,    by     its   own   terms,    applies   only to "'[   p] rivate


communications."             State   v.   Modica, 164 Wn.2d 83,                186 P. 3d 1062 ( 2008) (         quoting RCW

9. 73. 030( 1)(   a)).    A " communication is private ( 1) when parties manifest a subjective intention

that   it be   private and ( 2)   where that        expectation    is   reasonable."     Modica, 164 Wn.2d at 88:           Our


Supreme. Court concluded that, even if Modica had intended that his jail- recorded conversations

be private, such expectation was not reasonable:


          First, we have already, held that inmates have a reduced expectation of privacy.
          Second, both Modica and his grandmother knew they were being recorded and
          that    someone might        listen to those       recordings. ...         He and his grandmother had
          to listen to an automated system' s warning that the call will be " recorded and [ is]
          subject to monitor at any

          B] ecause Modica was in jail, because of the need for jail security, and because
          Modica' s calls were not to his lawyer or otherwise privileged, we conclude he had
          no reasonable expectation of privacy.


 Modica, 164 Wn.2d at 88 -89 ( internal citations omitted).

           The jail phone system plays a recorded announcement to both the party dialing and the

                         a phone call      that -
                                                all    conversations      are monitored.       Maddaus was aware of this
 party receiving




                                                                  K
No. 41795 -2 -II



fact: -                 three -way               call with    Williams    and    Farmer, Maddaus         stated, "   Here' s. the
          During    a                    phone




deal,   right?    These F * * *ing         phones are recorded all       the way."         12 VRP   at   1476.   In a separate


phone call, Maddaus spoke with Williams; who in turn handed the phone to Grimes, who then

handed it to Leville. Maddaus argues that because the phone system did not replay the recorded

message to Farmer, Leville, and Grimes, they did not consent to the State' s recording these

conversations.




             This argument is not a persuasive reason for excluding these conversations under the Act.

Regardless of who heard or did not hear the warnings, Maddaus, as well as the -
                                                                              other parties he

joined24 into the conversation, had no reasonable expectation of privacy. Modica, 164 Wn.2d at

89. All parties knew that Maddaus was phoning them from jail. Because the reasonableness test

is an objective one, we hold that any general expectation that jail-initiated phone calls would be

private      was not reasonable.             See Modica, 164 Wn.2d              at   89.   In particular, before engaging

Farmer in this phone. call from jail, Maddaus expressly put him on notice that their phone

conversation was           being    recorded.        Williams, Leville and Grimes each knew that Maddaus was


calling from jail; but even if they did not hear Maddaus' s admonition to Farmer that the



24
     Maddaus       cites   State    v.   Williams, 94 Wn.2d 531, 548, 617 P: 2d 1012 ( 1980), to support his
 arguments       that ( 1) "[    a]n accused person has standing to object to the admission of any illegally
 recorded conversation, even                if his   or   her privacy   rights were not      personally    violated ";   and ( 2)
 because certain parties to the recorded conversation did not hear the recorded " monitoring"
 message, Maddaus had standing to object to admission of these conversations on their behalf.
 Br.    of   Appellant      at   45 -47.    We reject Maddaus' s contention that he has standing to assert a
 violation of the Privacy Act on behalf of Williams, Levine; Grimes, or Farmer; moreover, the
 facts here show clearly that Maddaus invited these people into the conversation, knowing that the
 phone       calls were     being    recorded.        Thus, we do not further address whether their rights were
 violated.




                                                                  27
No. 41795 -2 -II



conversation was being recorded, the participation of multiple parties diminished the privacy of

this second call. See State v. Christensen, 153 Wn.2d 186, 193, 102 P. 3d 789 ( 2004).25
         Because none of the phone conversation participants had reasonable expectations of

privacy, .the conversations did not violate Washington' s Privacy Act and Maddaus' s counsel' s
performance was not deficient when he failed to object to the conversations' admission into

evidence on        these grounds.        We hold, therefore, that Maddaus fails to establish that his counsel

rendered ineffective assistance. Strickland, 466 U.S. at 687 -88.

                                             D. Detective Johnstone' s Testimony

         Maddaus next argues that he received ineffective assistance from his counsel when he

failed to object to Detective Johnstone' s testimony, which Maddaus claims was inadmissible

hearsay that bolstered Abear' s testimony. This argument fails.

         First, Maddaus fails to show the deficient performance prong of the ineffective assistance

counsel     test because the           challenged     testimony    was not     hearsay.        Hearsay is an out - court
                                                                                                                 of -

statement offered         to   prove   the truth of the matter asserted. ER 801( c).             Generally, hearsay is not

admissible.        ER 802. Here, the State            asked   Johnstone, "[ T]he facts that [ Abear] testified about,


is   that what you [ previously]              interviewed her     about[ ?]"      8 VRP    at   825 -26.      When Maddaus


objected on hearsay grounds, and the trial court sustained the objection, the State rephrased the




25 When determining whether an expectation of privacy is reasonable, we consider several
 factors,   including but       not    limited to: ( 1) the duration and subject matter of the communication,
 2) the location          of   the   parties, (   3) the   potential   presence   of   third   parties, (   4) the role of the
 interloper,      and (   5) the interloper'      s relationship to the nonconsenting party.  Christensen, 153
 Wn.2d      at                State
                 193 ( citing ,         v.   Clark, 129 Wn.2d 211, 225, 916 P.2d 384 ( 1996)). Here, there was
 no reasonable expectation of privacy for several of these reasons, including the actual known
 presence and participation of third parties.



                                                                 28.
No. 41795 -2 -11



question       to   ask, "[   T] he   subject matter of your          interview [   with   Abear], was it similar to her


testimony here         at   trial ?" Johnstone      replied, " Yes,   it   was."   8 VRP at 826.


          Defense counsel did not again object that this rephrased question and response involved

hearsay because they neither elicited nor presented an out-of-court statement offered to prove the

truth of Abear' s testimony. Instead, the rephrased question and answer focused on whether there

was overlap between the subject of Johnstone' s interview of Abear and her trial testimony. Nor

did this rephrased question and answer invite Johnstone to corroborate Abear' s testimony.

Because there was no hearsay involved, defense counsel' s performance was not deficient for

failing to object on this ground.

                                                    IV. JURY INSTRUCTIONS


          Maddaus next asserts reversible error on several instructional grounds, none of which we

find   persuasive.          Some issues he has preserved for appeal; some he has not. We address each in

turn.


                                              A. General Standard of Review


          In general, jury instructions are proper if they permit the parties to argue their theories of

the    case,   do    not mislead      the   jury,   and   properly inform the       jury   of   the applicable   law. State v.


Hayward, 152 Wn,               App.    632, 641, 217 P. 3d 354 ( 2009).            It is generally reversible error for the

trial court to refuse a proposed instruction that states the proper law and that the evidence

supports.       State   v.    Ager, 128 Wn.2d 85, 93, 904 P. 2d 715 ( 1995);               State v. Staley, 123 Wn.2d 794,

 803, 872 P. 2d 502 ( 1994).            We review de novo alleged errors of law injury instructions. State v.

Porter, 150 Wn.2d 732, 735, 82 P. 3d 234 ( 2004);                          Boeing Co. v. Key, 101 Wn. App. 629, 632, 5

 P. 3d 16 ( 2000).             We analyze a challenged jury instruction by considering the instructions



                                                                 29
i




            No. 41795 -2 -
                         II



            together as a whole and reading the challenged portions in context. Hayward, 152 Wn. App. at
                   26
            642.          Failure to object below, however, usually waives an issue on appeal, including

            instructional       error    issues.    RAP 2.5( a); State v. Williams, 159 Wn. App. 298, 312 -13, 244 P. 3d

            1018, review denied, 171 Wn.2d 1025 ( 2011).

                                                         B. Lesser Degree Assault Instruction


                        Maddaus unsuccessfully argues that the trial court erred in refusing to instruct the jury on

            the lesser degree          offense of       third degree   assault   27 An instruction on an inferior degree offense is .

            proper when



                         1) the statutes for both the charged offense and the proposed inferior degree
                         offense " proscribe       but    one offense "; (2)     the information charges an offense that is
                         divided into degrees, and the proposed offense is an inferior degree of the charged
                         offense; and ( 3) there is evidence that the defendant committed only the inferior
                         offense.



            State   v.                                                  1150 ( 2000) ( quoting
                         Fernandez- Medina, 141 Wn.2d 448, 454, 6 P. 3d "                                               State v. Peterson,

            133 Wn.2d 885, 891, 948 P. 2d 381 ( 1997)).                     The State concedes, and we agree, that third degree


            assault is an inferior degree of second degree assault.

                         Our focus then is whether the evidence raised an inference that Maddaus committed only

            the lesser degree                offense.               Medina, 141 Wn.2d
                                                          Fernandez -                                  at   455. "   IT]he evidence must


            affirmatively        establish       the defendant' s      theory   of   the   case —   it is not enough that the jury might

            disbelieve the        evidence       pointing to    guilt."   Fernandez -
                                                                                    Medina, 141 Wn.2d at 456 ( citing State v.



            26
                 See    also   State    v.   Teal, 117 Wn.     App.     831, 837, 73 P. 3d 402 ( 2003) (         citing State v. Haack, 88
             Wn.    App.       423, 427, 958 P. 2d 1001 ( 1997),            review     denied, 134      Wn.2d     1016 ( 1998)), aff d, 152
             Wn.2d 333, 96 P. 3d 974 (2004).
    i
             27 Maddaus does not challenge the trial court' s denial of Maddaus' s request for an instruction on
    i
        i    fourth degree assault.


                                                                                 30
No. 41795 -2 -II



Fowler, 114 Wn.2d 59, 67, 785 P. 2d 808 ( 1990),                 overruled on other grounds by State v. Blair,

117 Wn.2d 479, 816 P.2d 718 ( 1991)).                RCW 9A. 36. 03128 provides, in relevant part, that a


person commits third degree assault when he, with criminal negligence, causes bodily harm to

another person by means of a weapon or other instrument or thing likely to produce bodily harm,

or causes bodily harm accompanied by substantial pain that extends for a period sufficient to

cause considerable         suffering. RCW 9A.3 6. 03 1 ( 1)( d), ( f).


         At trial, Maddaus testified that he grabbed the mace from Abear' s hands and that it

inadvertently     went      off,   spraying them both.     In his appellate brief, Maddaus denies that he

assaulted Abear with a handgun or a paintball gun; he then argues that his trial testimony did not

mention the use of any firearm or•paintball gun against Abear. In short, Maddaus' s theory of the

case is that there was no assault, not that he committed only the inferior degree offense.

Moreover, his argument relies entirely on the jury' s disbelieving certain parts of Abear' s

testimony that pointed to second degree assault but accepting other parts of her testimony that
would point       to third degree      assault.   The Supreme Court previously rejected this analysis in

          Medina,
Fernandez -                   141    Wn.2d   at   456 (   The evidence must affirmatively        establish the

defendant' s theory of the case; it is not enough that the jury might disbelieve the evidence

pointing to     guilt).    Thus, we hold that the trial court did not err in denying Maddaus' s request for

 an inferior degree instruction.




 28 The legislature has since amended RCW 9A.36.031 in ways that are not relevant to this case.
 Accordingly, we cite the current version of the statute, LAWS of 2011,. ch. 238, § 1; LAWS of
 2013,   ch.   256, § 1.



                                                            31
No. 41795 -2 -II



                                               C. Unanimity on Elements

            Maddaus also argues that the trial court unconstitutionally relieved the State of its burden

to prove the essential elements of each crime when it failed to instruct the jury that it must be

unanimous about ( 1) the weapon used in the second degree assault sentencing enhancement, and

 2)   the   victim   in the first degree     attempted   kidnapping   charge.   29 These arguments also fail.

            Maddaus first argues that he was entitled to an instruction that the jury had to be

unanimous about the weapon used in the second degree assault for the sentencing enhancement

special weapon verdict because some jurors could have voted for the enhancement based on his

assaulting Abear with mace and others could have focused on either the paintball gun or the

handgun.         This argument contravenes the clear jury instructions, which stated that Maddaus

assaulted      Abear     with a "   deadly   weapon,"    defined as a " firearm,' whether loaded or unloaded."


CP     at   434 ( Instruction 18), 446 ( Instruction 30).      Because we presume the jury followed the trial
                             30
court' s     instructions,        they could not have considered the non -
                                                                         firearm mace or paintball gun as

deadly weapons.




29
      Generally, when the State offers evidence of multiple acts, and any of those acts could support
 one count, either " the State must designate the acts upon which it relies to prove its case" or " the
 court may instruct the jury to agree unanimously as to which acts support a specific count."
State  v. Fisher, 165 Wn.2d 727, 755, 202 P. 3d 937 ( 2009) ( citing State v. Petrich, 101 Wn.2d

 566, 570, 683 P. 2d 173 ( 1984),            modified on other grounds by State v. Kitchen, 110 Wn.2d 403,
 756 P. 2d 105 ( 1988)).
             But a unanimity instruction is not required when the State offers evidence of multiple acts
 in   a "   continuing    course of conduct."      State v. Crane, 116 Wn.2d 315, 326, 804 P. 2d 10 ( 1991).
  A continuing course of conduct requires an ongoing enterprise with a single objective." State v.
 Love, 80 Wn. App. 357, 361, 908 P. 2d 395 ( 1996). This determination requires a commonsense
 evaluation of the facts. State v. Handran, 113 Wn.2d 11, 17, 775 P. 2d 453 ( 1989).

 30 State v. Perez -Valdez., 172 Wn.2d 808, 818 -19, 265 P. 3d 853 ( 2011).


                                                              32
    No. 41795 -2 -
                 II



            Second, Maddaus argues that because the first degree attempted kidnapping charge did

    not name Abear as the victim, the jury could have convicted Maddaus of second degree assault

    based on his attempted kidnapping of Peterson instead of Abear. The record, however, does not

    support this possibility: During closing, the State argued,

            The judge also tells you what the completed crime of kidnapping in the first
            degree is.  Keep in- mind, ladies and gentlemen, the charge is attempted
            kidnapping. Jessica Abear was not kidnapped, but the evidence shows that that' s
            what the defendant had in mind, and he took a substantial step towards the
            commission of   that   crime. ...   The issue is what did the defendant have in mind
            when he confronted, and I submit, tortured Jessica Abear.


    17 VRP at 1992. We hold, therefore, that that Maddaus fails to show reversible error in the trial

    court' s burden of proof instructions.

                                   D. State' s Burden To Prove Each Element

            Maddaus next argues for the first time on appeal that ( 1) the trial court failed to define

     deadly   weapon"   for his    second   degree   assault charge, (   2) the trial court gave an erroneous


    instruction on " substantial step" on his first degree attempted kidnapping charge, and ( 3) these

    errors unconstitutionally relieved the State of its burden of proof at trial. Br. of Appellant at 75,

    77.   He also argues that his counsel' s failure to object below constituted ineffective assistance.

    These arguments also fail, both in meeting the RAP 2. 5( a)( 3) preservation exception and on the

    merits ( which latter issue overlaps with the " manifest" component of the preservation exception


    test and the prejudice prong of the ineffective assistance of counsel test).

              Due process requires the State to prove every element of an offense beyond a reasonable

     doubt. U.S. CONST. amend. XIV; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d'

     368 ( 1970).   Jury instructions that relieve the State of its burden to prove every element of an




                                                          33

i
No. 41795 -2 -I1



offense     violate   due   process.        State   v.      Thomas, 150 Wn.2d 821,                 844, 83 P.3d 970 ( 2004),


abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 ( 2004).              Thus, such errors affect a constitutional right and may be raised for

the   first time    on    appeal    if the defendant          also     shows     the    errors   were "   manifest" under RAP


2. 5( a)( 3).


           The defendant must identify a constitutional error and show how, in the context of
           the trial, the alleged error actually affected the defendant' s rights; it is this
           showing of actual prejudice that makes the error "manifest."

McFarland, 127 Wn.2d               at   333 (   emphasis added).            Maddaus fails to meet this " manifest" prong

of the RAP 2. 5( a)( 3) test.

                                                     1. "   Deadly weapon"

           As we have already discussed, the trial court adequately instructed that in order to convict

on Count IV, the jury was required to find that " on or about November 13, 2009, Naddaus]
assaulted       Jessica R. Abear        with a   deadly weapon."            CP   at   434 ( Instruction 18) (   emphasis added).

The trial court also narrowed the jury' s consideration of deadly weapon in Instruction 30 to a

  firearm,      whether   loaded or      unloaded."         CP   at   446 ( Instruction 30).       Again, we presume the jury

followed these instructions.             1 Therefore, we hold that,. in narrowing the jury' s consideration to

the firearm, the jury instructions did not relieve the State of its burden to prove Maddaus




 31 Perez- Valdez, 172 Wn.2d at 818 -19.



                                                                       34
    No. 41795 -2 -
                 H



    assaulted Abear with a deadly weapon32; thus, Maddaus shows neither error nor prejudice.
                                                          2. "   Substantial step"

               Similarly, Maddaus fails to show that the trial court' s instructions about the " substantial

    step" element of first degree attempted kidnapping relieved the State of its burden to prove each
    element of      this      crime.    Br.    of   Appellant    at   77.    In addition, an instruction on the definition of


        substantial   step," Instruction 22           provided, "     A substantial step is conduct that strongly.indicates

    a    criminal   purpose         and   that   is   more   than     mere preparation."      CP at 438 ( emphasis added).


    Maddaus argues that this definition is a lower standard than that in State v. Workman, which

    stated, "   Mn order for conduct to be a substantial step it must be strongly corroborative of the

    actor' s    criminal          purpose."      State v. Workman, 90 Wn.2d 443, 452, 584 P. 2d 382 ( 1978)


     emphasis added).              Maddaus argues that " corroborative" is a stronger word than " indicates" and

    that " the"     criminal purpose           is   a more narrow consideration          than "   a"   criminal purpose.    Br. of


    Appellant at 77 -78.


                Washington            courts     have     used        the    terms "   corroborative      of   and - "   indicates"


    interchangeably without criticism; and Maddaus cites no cases to the contrary. See, e. g., State v.

    Dent, 67 Wn.            App,    656, 660, 840 P. 2d 202 ( 1992),             affd, 123 Wn.2d 467, 869 P.2d 392 ( 1994)




    32
         For the first time in his reply brief, Maddaus also argues that "[ n]othing in this case established
    that the weapon allegedly       used to assault Abear was a real gun, as opposed to a toy gun." Reply

    Br. of Appellant at 42. We do not consider an issue raised and argued for the first time in a reply
    brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).
    Moreover, Maddaus provides no further argument or authority to support this claimed error.
    RAP 10. 3(        a)(   6);   Saunders v. Lloyd' s of London, 113 Wn.2d 330, 345, 779 P.2d 249 ( 1989)
        courts need not consider           issues     unsupported      by adequate     argument and     authority). Thus, we do
     not consider its merits.


7
                                                                            35
                                                                r




No. 41795 -2 -
             II



using " indicates        a criminal purpose ");   State v. Aumick, 126 Wn.2d 422, 427 -28, 894 P. 2d 1325


 1995) ( using     " corroborative of the actor' s criminal purpose ").

          Furthermore, Maddaus incorrectly reads Instruction 22 in isolation, contrary to the well

settled rule that we must read jury instructions together as a whole. Hayward, 152 Wn. App. at

642; State    v.   Teal, 117 Wn.      App.   831, 837, 73 P. 3d 402 ( 2003).   Instruction 20   provides, "   A


person commits the crime of attempted kidnapping in the first degree when, with intent to

commit that crime, he or she does any act that is a substantial step toward the commission ofthat

crime."     CP     at   436 ( Instruction 20) (   emphasis added).   Read together, these two instructions


clearly required the jury to find evidence demonstrating that Maddaus took a substantial step

toward committing first degree attempted kidnapping in order to convict him of that charge.

Thus, Maddaus cannot show deficient performance by defense counsel in failing to object to the

trial   court' s proper     instructions.   We hold that the trial court' s instructions did not relieve the

State of its burden of proof and that defense counsel did not provide ineffective assistance in


failing to object to these instructions.

                                        V. PROSECUTORIAL MISCONDUCT


          Maddaus next argues that the State committed- various acts of prosecutorial misconduct


during    closing       argument.   He did not, however, preserve any of these arguments with timely

objections     below.        Some he now casts in the context of ineffective assistance of counsel

arguments.         We address each of Maddaus' s claims in each turn; none provide grounds for

reversal.




                                                          I
No. 41795 -2 -II


                                                                              33
                                                A. Standards   of Review




          A defendant has a fundamental right 'to a fair trial, secured by the right to counsel,

guaranteed by the Sixth and Fourteenth Amendments and article I, section 22 of the Washington

State Constitution.34 Estelle v. Williams, 425 U.S. - 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126

 1976); State       v.   Finch, 137 Wn.2d 792, 843, 975 P. 2d 967 ( 1999).             Generally, a prosecutor has

wide latitude to argue reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d

438, 448, 258 P. 3d 43 ( 2011).              Nevertheless, prosecutorial misconduct may deprive a defendant

of his constitutional right to a fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P. 2d 1213

 1984).       The term " fair trial" implies a trial in.which the prosecuting attorney does not throw the

prestige of his public office or the expression of his own belief of guilt into the scales against the

accused.       In   re   Pers. Restraint of Glasmann, 175 Wn.2a 696, 704, 286 P. 3d 673 ( 2012) ( citing


State    v.   Monday,       171 Wn.2d 667, 677, 257 P. 3d 551 ( 2011)).               For example, the prosecutor


should not use arguments calculated to inflame the passions or prejudice of the jury. Glasmann,

175 Wn.2d at 704.


          A defendant must satisfy two requirements to prevail on a claim of prosecutorial

misconduct:          He must establish that ( 1) the prosecutors conduct was improper, and ( 2) the

conduct was prejudicial in the context of the entire record and the circumstances at trial.

Thorgerson, 172 Wn.2d              at   438.    To establish prejudice, the defendant must show a substantial




 33 We have previously stated the applicable standard of review for ineffective assistance of
 counsel claims. See n. 18.

 34
                                             XIVV;




      U. S. CONST.       amend.   VI   and           WASH. CONST.   art.   I, § 22.



                                                              37
No. 41795 -2 -II



likelihood that the          misconduct affected         the    jury   verdict.     Glasmann, 175 Wn.2d at 704 ( citing

Thorgerson, 172 Wn.2d at 438).


         A•
          party' s failure to object to improper prosecutorial statements at trial constitutes a

waiver on appeal unless               that party    shows   the   statement was "`     so flagrant and ill-intentioned that


it causes an enduring and resulting prejudice that could not have been neutralized by a curative

instruction to the         jury. "'    State   v.   Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003) ( quoting


State   v.   Brown, 132 Wn.2d 529, 561, 940 P.2d 546 .( 1997)). Even if the trial court could-have


cured the prejudice with a jury instruction, if the defense did not request such an instruction,

reversal is not automatically required. State v. Russell, 125 Wn.2d 24, 85, 882 P. 2d 747 ( 1994).

Rather, the burden on the defendant heightens to show that the misconduct was so flagrant and

ill -
    intentioned that an instruction would not have cured the prejudice. Thorgerson, 172 Wn.2d at

438.
                                                                                                                            r


             This heightened standard of review requires the defendant to show that ( 1) no curative

instruction would have cured any prejudicial effect on the jury, and ( 2) the misconduct resulted

in   prejudice      that "` had      a substantial    likelihood of     affecting    the   jury   verdict. "'   State v. Lindsay,

171 Wn.       App.    808,            288 P.3d 641, 650 ( 2012) ( quoting            State v. Emery, 174 Wn.2d 741, 761,

278 P. 3d 653 ( 2012)).               We assess the claimed misconduct by the effect likely to have flowed

from it, focusing more on whether an instruction could have cured the misconduct. Emery, 174

Wn.2d        at    762.    In   so    doing,   we ,ixlquire• whether         the   misconduct      engendered "`    a feeling of

prejudice "'        that   would      have   prevented      a   fair trial   absent a curative       instruction.    Emery, 174

 Wn.2d       at   762 ( quoting      Slattery v. City   of Seattle, 169 Wn. 144, 148, 13 P. 2d 464( 1932)).
No. 41795 -2 -H



                                           B. Disparaging Defense Counsel

         Maddaus argues, also for the first time on appeal, that the prosecutor infringed on his

constitutional right to counsel by disparaging the role of defense counsel and impugning

counsel' s integrity when the prosecutor ( 1) claimed that defense counsel' s investigator had been

 duped," (      2) compared defense counsel' s argument to " the distractions that sometimes people

create when         they' re   passengers    in   a vehicle,"     and ( 3) stated that what the jury heard from the

defense'      s witnesses were "     the   last   effort   to   develop   lies." Br.   of   Appellant         at   50, 51.   Maddaus


further argues that he received ineffective assistance based on his counsel' s failure to object to

this   alleged      prosecutorial    misconduct.           Maddaus correctly notes that it is improper for the

prosecutor to comment disparagingly on defense counsel' s role or to impugn the defense

lawyer' s integrity. Thorgerson, 172 Wn.2d at 45135 But this did not happen here.

          Here, the State neither disparaged counsel nor accused him of wrongdoing when it

suggested that defense counsel' s investigator had been " duped" into being Maddaus' s agent.

There was no insinuation of misconduct or lack of integrity on the part of defense counsel; nor

did this       statement       impugn defense        counsel.       Rather, the statement focused on the defense


investigator; and even then, it did not actually disparage him by suggesting that he had been

 duped"        by   some external event or person.                The same holds true for the prosecutor' s second


challenged statement— that            defense'     s witnesses     had    engaged   in   a"   last   effort   to   develop lies."   17


VRP      at   2077.     This statement similarly did not call defense counsel' s integrity into question.



 35 Thorgerson held it was improper for the prosecutor to describe defense counsel' s tactics as
  sleight of hand" because it "implies wrongful deception or even dishonesty in the context of a
 court   proceeding."          Thorgerson, 172 Wn.2d at 451 -52.




                                                                   39
No. 41795 -24I



Rather, the State was articulating reasons why the jury should find that the defense witnesses

were not telling the truth.

           The record does not support Maddaus' s argument that the prosecutor committed

misconduct        in this way.    In short, he shows no prejudice; thus, Maddaus also fails to establish


both reversible error and ineffective assistance of counsel for failing to object to these comments.

                             C. " Poppycock," " Unreasonable," "      Crazy," "   Duped"


           Maddaus next argues that the State committed prosecutorial misconduct during closing

arguments        by    calling defense    testimony "`   poppycock, "' "` unreasonable     under   the law, "'   and




     crazy, "'   and   suggesting that Maddaus had "` duped "' the defense investigator. Br. of Appellant


at    49 ( quoting 17 VRP        at   1984, 2074).       We find State   v.   Copeland instructive:    There, the


prosecutor       told the   jury, "[ Y] odll find as a jury that [ Copeland] lied when he took the stand,"

and he suggested that Copeland was " lying" when he made several other statements ( based on

contradictory         testimony from     other witnesses).   State v. Copeland, 130 Wn.2d 244, 291 -92, 922


P. 2d 1304 ( 1996). Our Supreme Court held the prosecutor' s argument was not improper because


he was arguing inferences from the evidence; it also held that " a curative instruction would have

neutralized       any   prejudice."   Copeland, 130 Wn.2d at 291 -92.


           The statements at issue here were more flagrant and ill-intentioned than those in

Copeland, but Maddaus fails to show that they rose to the level of being " so flagrant and ill-

intentioned" that they, too, could not have been neutralized by a curative instruction. Dhaliwal,

150 Wn.2d at 578. Thus, we do not further consider the merits of his challenge for the first time

on appeal.




                                                             40
        No. 41795 -2 -II



               To the extent that Maddaus also argues that his trial counsel was ineffective for failing to

        object to these comments, we note that defense counsel may have had strategic reasons for not

                                                                                   to draw the      jury' s   attention   to them.   See
        objecting to these    comments, such as             preferring       not



        Grier, 171 Wn.2d     at    32 -33; State     v.   Madison, 53 Wn.          App.    754, 763, 770 P. 2d 662 ( 1989) (" The


        decision of when or whether to object is a classic example of trial tactics. ").

                                                           D. PowerPoint Slide


               Maddaus       also    argues        for the first time          on    appeal    that ( 1)      the State engaged in


        prosecutorial misconduct when it displayed a Microsoft PowerPoint slide containing a

        photograph of Maddaus wearing a wig police had found in his vehicle, the word " GUILTY"

        written beneath it, and other similar words surrounding it; and ( 2) his counsel was ineffective in

        failing to object. These arguments also fail:

                Our Supreme Court recently reversed a guilty verdict and remanded for a new trial after

        the prosecuting attorney made a sequential electronic slide presentation to the jury graphically

        displaying   his   personal opinion          that the defendant            was "   guilty, guilty, guilty" of the charged

        crimes. Glasmann, 175 Wn.2d at 699. The Supreme Court described these slides as follows:

                In   one slide,    booking photo appeared above the caption, " DO YOU BELIEVE
                                   the
                HIM ?" In     another booking photo slide the caption read, " WHY SHOULD YOU

                BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT ?" Near the end of
                the presentation, the booking photo appeared three more times: first with the
                word " GUILTY" superimposed diagonally in red letters across [ the defendant]' s
                battered face. In the second slide the word " GUILTY" was superimposed iri red
                letters    again '   in the       opposite    direction,      forming        an "   X"   shape     across [   the

                defendant]'    s   face.       In the third   slide,   the   word "    GUILTY," again in red letters,
                was superimposed horizontally over the previously superimposed words.

         Glasmann, 175 Wn.2d             at   701 -02 ( internal   citations omitted).         Glasmann failed to object, just as


         Maddaus failed to object to here. Glasmann, 175 Wn.2d at 700, 702.


1
                                                                        41


    i
No. 41795 -2 -II



            Nonetheless,       on   appeal,    the   Supreme         Court held that the         prosecutor' s "     including

alterations of [the defendant]' s booking photograph by addition of highly inflammatory and

prejudicial captions constituted          flagrant     and   ill intentioned     misconduct."      Glasmann, 175 Wn.2d


at   714.    The Court fiuther       noted, "[   S] howing Glasmann' s battered face and superimposing red

capital     letters"   added   to the   prejudice.       Glasmann, 175 Wn.2d at 708 ( citing ,State v. Gregory,

158 Wn.2d 759, 866 -67, 147 P. 3d 1201 ( 2006)).                        The Court believed there was a substantial


likelihood that the         misconduct        affected   the   jury   because "[ t]he mental state required for the


charged       offenses,    specifically intent,       was    critically important"       and the nuanced distinctions


posed a " serious danger that the nature and scope of the misconduct here may have affected the

jury." Glasmann, 175 Wn.2d at 708, 710.

            The   circumstances         in Glasmann, however,              differed significantly from those here.

Glasmann was charged with first degree assault, attempted first degree robbery, first degree

kidnapping, and obstruction. Glasmann, 175 Wn.2d at 700. Glasmann did not deny culpability;

rather,     he disputed the degree        of   the   crimes charged.       Glasmann, 175 Wn.2d           at   700.   Maddaus


was charged with first degree murder; but, in contrast with Glasmann, Maddaus adamantly

denied culpability.         Maddaus' s theory of the case was that he did not commit the murder, not,

like Glasmann, that he committed only a lesser degree of the charged crime.

            Moreover, the center of this single slide included a photograph of Maddaus ( not a mug

 shot, as in Glasmann) wearing a wigto remind the jury that Maddaus had .intentionally
 obtained a       false   passport and    had been using         a    disguise   on   the days   leading   to his    arrest.   In .


 contrast, nothing in the record here suggests that the State used this slide to trigger " an emotional

 reaction"      from the jury, as was the case in Glasmann, where mulitiple PowerPoint slides


                                                                 42
    No. 41795 - -
              2 R



    repeatedly displayed Glasmann' s mug shot, displaying him as unkempt and bloody. Glasmann,

    175 Wn.2d at 706; 710 n.4.

              Applying the heightened standard of scrutiny for unpreserved errors, we hold that

    Maddaus has failed to show that a curative instruction would not have overcome any prejudicial

    effect from the State' s use of this single slide showing him in a wig that he had used to evade

    arrest.   Moreover, as with the previous claim, defense counsel could have strategically elected

    not to object to this slide to avoid emphasizing it further; this point, coupled with Maddaus' s

    failure to show prejudice, defeats his ineffective assistance claim on this basis.

                                             VI. WITNESS TAMPERING


              Maddaus next argues that ( 1) his two witness tampering convictions, Counts VI and VII,

    based on his multiple contacts with Farmer to persuade him to provide a false alibi, constituted,

      at most) one unit of witness tampering" and, consequently, double jeopardy under the Fifth and

    Fourteenth amendments36 and the Washington constitution, art. I, sec. 9; and ( 2) there was


    insufficient evidence to support his witness tampering convictions on Counts VI and VII because

    the State failed to prove that Farmer was a witness, was about to be called as a witness, or was in

    possession of information relevant to a criminal investigation at the time of the alleged

    tampering.     Br.   of   Appellant at 54.   The State concedes, and we agree, that these two counts


    constituted one unit of prosecution. We further hold that the evidence is sufficient to show that

    Farmer was a potential witness; therefore, Maddaus' s challenge on this. ground fails.




j   36 U.S. CONST. amend. V; XIV.
i




                                                         43
No. 4179. -2 -II
        5



                                     A. Double Jeopardy; Single Unit of Prosecution

               An appellant may raise a double jeopardy claim for the first time on appeal; and we

review         it de   novo.    State    v.   Jackman, ' 156 Wn.2d 736, 746, 132 P. 3d 136 ( 2006) (            citing RAP

2. 5(   a));   State    v.   Turner, 169 Wn.2d 448, 454, 238 P. 3d 461 ( 2010) (                citing State v. Kelley, 168

Wn.2d 72, 76, 226 P. 3d 773 ( 2010)).                   A defendant may face multiple charges arising from the

same conduct, but double jeopardy prohibits multiple convictions for the same offense.37 State V.
Hall, 168 Wn.2d 726, 729 -30, 230 P.3d 1048 ( 2010).


               Washington' s witness tampering statute provides in relevant part:

                1) A person is guilty of tampering with a witness if he or she attempts.to induce a
               witness or person he or she has reason to believe is about to be called as a witness
               in any   official   proceeding ...     to:
                a)   Testify falsely or, without right or privilege to do so, to withhold any
               testimony.

RCW 9A. 72. 120( 1), (             a).    Addressing   this   statute   in Hall,   our   Supreme Court held that ( 1) "[   a]




unit of prosecution can              be                 or a course of conduct ";
                                          either an act -                                  and ( 2) the evil the legislature


has criminalized is the attempt " to induce a witness" not to testify or to testify falsely, rather than

the     number of attempts, " whether              it takes 30   seconds,   30   minutes,    or days." Hall, 168 Wn.2d at

731.       We have similarly held that a defendant' s numerous telephone calls to a potential witness

to recant her testimony was a continuing course of conduct aimed at the same witness in a single

proceeding, amounting to only                    one unit of witness     tampering. State v. Thomas, 158 Wn. App:

 797, 802, 243 P. 3d 941 ( 2010).                   The State concedes, and we agree, that Maddaus' s repeated


 phone calls to persuade Farmer to testify falsely constituted one unit of prosecution and should



 37 The Fifth Amendment of the United States Constitution and Washington Constitution article I,
 section 9 guarantee that "[ n] o person shall be :.. twice put in jeopardy" for the same offense.
No. 41795 -2 -H



result in only one conviction for witness tampering based on his contacts with Farmer in order to
                             38
prevent   double jeopardy.


                             B. Sufficient Evidence To Support Single Count


          In determining the sufficiency of the evidence to support Maddaus' s challenged witness

tampering convictions, we view the evidence in the light most favorable to the State and

determine whether any rational trier of fact could have found the essential elements of the crime

beyond    a reasonable    doubt.   State      v.   Townsend, 147 Wn.2d 666, 679, 57 P. 3d 255 ( 2002).                 A


challenge   to   the sufficiency   of   the   evidence admits       the truth of the State'    s evidence.       State v.


Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).                  Applying these standards here, we hold

that the evidence is sufficient to show that Farmer was a potential witness.


          Farmer had previously agreed to act as an informant for Thurston County and to perform

three controlled buys; he had provided the drug unit with Maddaus' s name, and he had called

Maddaus     on    November 15, 2009, to             purchase methamphetamine       in    a controlled       buy. • Police

obtained phone records of all calls placed 'and received from Maddaus' s cell phone, which

included    a record of    his phone     call      to Farmer.    We agree with the State that, in this context,


Farmer was a potential witness by virtue of his prior arrangements with the police to set up a

controlled buy with Maddaus and Farmer' s subsequent phone calls to Maddaus' s cell phone for




38 We note that the legislature has since amended the tampering statute, adding subsection ( 3),
which states, " For purposes of this section, each instance of an attempt to tamper with a witness

 constitutes     a separate offense."    RCW 9A.72. 120.            LAWS of 2011,       ch.   165, §   3.   Because the
 statute was amended after Maddaus attempted to persuade Farmer to testify falsely, it does not
 apply here.

                                                            45
No. 41795 -2 -II



this   purpose on      the days   immediately      preceding    or   following   the   murder. ,   Taking this evidence

in the light most favorable to the State, as we must, we hold that the evidence and the double

jeopardy prohibition support a single conviction for witness tampering based on Maddaus' s

attempt to persuade Farmer to provide false testimony, namely either Count VI or Count VII, but.

not both:39

                                                       VII. SENTENCING


                                               A.-Firearm Enhancements


            Maddaus      next     argues,    for the first time        on   appeal,    that his firearm sentencing

enhancements on Counts I, III, and IV violated his due process rights because the fifth amended

information charged him with only deadly weapon enhancements. We disagree.

            When a defendant challenges the charging document for the first time on appeal, we

liberally construe40 the document in favor of validity. State v. Witherspoon, 171 Wn. App. 271,
294, 286 P. 3d 996 ( 2012) ( citing           State v. Winings, 126 Wn. App. 75, 84, 107 P. 3d 141 ( 2005))..

We will find the charging document sufficient if the necessary elements appear in any form or, if

by fair construction, we may find them on the face of the document. State v. Nonog, 169 Wn.2d
220, 227, 237 P. 3d 250 ( 2010).              We review the information as a whole, according to common




 39 Maddaus does not challenge his other two witness tampering counts on these grounds; nor do
 we address         them.   Thus, our holding here does not affect any witness tampering counts other
 than Counts VI and VII.

 40
      As    our   Supreme Court recently         explained, "   Liberal interpretation ` balances the defendant' s.
 right     to   notice against   the   risk of ... `   sandbagging' that is, that a defendant might keep quiet
 about defects in the information only to challenge them after the State has rested and can no
 longer amend it. "' State v. Zillyette, 2013 WL 39460664 ( 2013) ( quoting State v. Nonog, 169
 Wn.2d 220, 227, 237 P.3d 250 ( 2010)).




                                                              46
    No. 41795 -2 -
                 11



    sense and including implied facts,-to determine•( 1) whether the information reasonably apprised

    the defendant of the elements of the crime charged; and ( 2) whether the defendant can show that

    the inartful or vague language in the charging document actually prejudiced him if the

    information does     not   include      all   necessary   elements.   41 State v. Kjorsvick, 117 Wn.2d 93; 105 -06,

    812-P. 2d 86 ( 1991); see also State v. Williams, 162 Wn.2d 177, 182, 170 P. 3d 30 ( 2007).


           We analyze a sentencing enhancement as if it were an element of an offense because the

    enhancement increases the sentence beyond the maximum otherwise authorized for the

    underlying   offense.      State   v.   Recuenco, 163 Wn.2d 428, 434, 180 P.3d 1276 ( 2008).                  Thus, the


    State must include sentencing enhancements, such as deadly weapon and firearm allegations, in

    the information.     State    v.   Crawford, 159 Wn.2d 86, 94, 147 P. 3d 1288 .( 2006) ( State must set


    forth in information its intent to             seek enhanced penalties);       In re Bush, 95 Wn.2d 551, 554, 627


    P. 2d 953 ( 1981).


            Here, the information alleged that ( 1) at the time Maddaus committed first degree murder

    and attempted kidnapping ( Counts I and III), he " was armed with a deadly weapon, a firearm";

    and (2) while committing second degree assault ( Count IV), Maddaus " was armed with a deadly
    weapon; a. firearm,     to wit:             automatic pistol"
                                         a semi -                            CP    at   21 -22.   The information also cited




    41 Under the first analytical prong, if we can neither find nor fairly imply an essential element of
    the crime in the charging document, we presume prejudice and reverse without considering
    whether the omission prejudiced the defendant. State v. Goodman, 150 Wn.2d 774, 788, 83 P. 3d
    410 ( 2004). In such cases, we reverse the conviction even if the defendant had actual knowledge
    of all the essential elements of the alleged crime. State v. Kjorsvick, 117 Wn.2d 93, 101 -02, 812
    P.2d 86 ( 1991).     But if the necessary facts appear, or are implied, in some form in the charging
     document,   we   then     consider      the    second analytical     prong,   prejudice.      Goodman, 150 Wn.2d at
     788. Maddaus fails to meet this test here.




                                                                   47

I
i
i
    No. 41795 -2 -II


                           42
    RCW 9. 94A.533( 3)          for Counts     f   and   IV ( murder   and assault),   giving Maddaus express notice

    that the State was seeking a firearm sentencing enhancement for those two counts. CP at 21 -22.

    Although Count III of the information did not similarly cite this firearm sentencing enhancement

    statute, 43 the information expressly alleged that Maddaus had been armed with a firearm while he

    was   attempting the   kidnapping. Looking at the information "-according to common sense, and

    includ[ ing] facts   which -are     necessarily implied," as we must on a first -ime post -
                                                                                    t         conviction




    42 RCW 9. 94A.533( 3) provides in part:
            The following additional times shall be added to the standard sentence range for
            felony crimes committed after July 23, 1995, if the offender or an accomplice was
            armed with a firearm as defined in RCW 9.41. 010 and the offender is being
            sentenced for one of the crimes listed in this subsection as eligible for any firearm
            enhancements based on the classification of the completed felony crime.          If the
            offender is being sentenced for more than one offense, the firearm enhancement
            or enhancements must be added to the total period of confinement for all offenses,
            regardless of which underlying offense is subject to a firearm enhancement. If the
            offender or an accomplice was armed with a firearm as defined in RCW 9.41. 010
            and the offender is being sentenced for an anticipatory offense under chapter
            9A.28 RCW to commit one of the crimes listed in this subsection as eligible for
            any firearm enhancements, the following additional times shall be added to the
            standard sentence range determined under subsection ( 2) of this section based on
            the felony crime of conviction as classified under RCW 9A.28. 020:

              a) Five years for any felony defined under any law as a class A felony or with a
             statutory maximum sentence of at least twenty years, or both, and not covered
            under (f)of this subsection;


             b) Three years for any felony defined under any law as a class B felony or with a
             statutory maximum sentence of ten years, or both, and not covered under ( f) of
             this subsection;



              c) Eighteen months for any felony defined under any law as a class C felony or
             with a statutory maximum sentence of five years, or both, and not covered under
              f) of this subsection.


     43 But it did cite the deadly weapon enhancement statute, RCW 9.94A.602, recently recodified as
     9. 94A. 825. Laws     of   2009,   ch.   28, § 41.




i
I
No. 41795 -241



challenge to the information, we hold that the information' s allegation that Maddaus was armed

with a      deadly   weapon, " a   firearm,"   on   Count III "reasonably         appris[ ed]"   him that the State was


seeking      a   firearm sentencing   enhancement         for this    attempted   kidnapping     charge.   CP at 22. See


Kjorsvick, 117 Wn.2d at 109.


            Furthermore, in contrast with Recuenco,44 the jury instructions here defined " firearm" as

 a weapon or device from which a projectile may be fired by an explosive such as gunpowder."

CP    at    448 ( Instruction 32).    Each of the challenged special verdict forms also asked the jury to

determine whether Maddaus was " armed with a;firearm at the time of the commission of the

crime."       CP at 452, 455, 457 ( emphasis added).

                                                                                                                   45
             Contrary to   Maddaus'    s   focus   on   the "   operative   language   of   the [ i]nformation,   ".    rather




than on citation to a particular statutory authority, we conclude that the charging document

reasonably apprised Maddaus that the State was seeking firearm sentencing enhancements and


44
  In Recuenco, the information charged second degree ass_
                                                        ault committed, with a deadly weapon,
     to =
      wit: a handgun! "; but the special verdict form asked the jury to find only whether

Recuenco had been " armed with a deadly weapon. "' The jury returned a special verdict finding
that Recuenco had been armed with a deadly weapon while committing the assault; but the trial
court imposed a firearm sentencing enhancement rather than a deadly weapon enhancement.
Recuenco, 163 Wn.2d           at   431 -32.    The Supreme Court vacated Recuenco' s firearm sentencing
enhancement, holding that ( 1) the trial court had erred in imposing a sentence enhancement that
had not been charged and the jury had not found; and ( 2) the trial court had exceeded its
authority in enhancing the sentence based on a fact not found by the jury. Recuenco, 163 Wn.2d
at 442. The Court based its holding in part on ( 1) the trial court' s failure to define " firearm" in

the jury instructions, and (2) the lack of any jury finding that the defendant had been armed with
a    firearm     during   commission of      the underlying offense.          Recuenco, 163 Wn.2d at 431 -32; see
also In re Pers. Restraint of Delgado, 149 Wn, App. 223, 236- 37, 204 P. 3d 936 ( 2009) ( applying

Recuenco where information failed to allege firearm sentencing enhancements and jury
instructions failed to define " firearm").

45
     Reply Br. of Appellant at 48.



                                                                 49
No. 41795- 2-11



that the charging document matched the special verdict forms, which clearly asked the jury to
decide   whether      Maddaus had been "     armed with a    firearm,"   during the- commission of Counts I,

III,   and   IV.46   CP at 452, 455, 457. Maddaus fails to show that the language in his fifth amended

information actually prejudiced him. Accordingly, his claim fails. See Kjorsvik, 117 Wn.2d at

101 -02.

                                         B. Prior " Strike" Convictions


             Maddaus next argues, for the first time on appeal, that the prosecution failed to prove his

two prior " strike" convictions. Br. of Appellant at 97. This argument lacks merit.

             To calculate a defendant' s offender score and sentence properly, the Sentencing Reform

Act of 198 1,. chapter 9. 94A RCW, requires sentencing courts to determine a defendant' s criminal

history based on his prior convictions and the level of seriousness of the current offense. RCW
9. 94A. 505; State      v.   Ross, 152 Wn.2d 220, 229, 95 P. 3d 1225 ( 2004).       The State must prove a


defendant' s criminal history by a preponderance of the evidence. State v. Hunley, 161 Wn. App.

919, 927, 253 P.3d 448, aff'd, 175 Wn:2d 901, 287 P. 3d 584 ( 2012).                 The best evidence of a


prior conviction is a certified copy of the judgment. State v. Mendoza, 165 Wn.2d 913, 920, 205

P. 3d 113 ( 2009) ( quoting State       v.   Lopez, 147 Wn.2d 515, 519, 55 P. 3d 609 ( 2002)).      It is the


State' s obligation to ensure that the. record before the sentencing court supports the criminal

history determination. State v. Ford, 137 Wn.2d 472, 480, 973 P. 2d 452 ( 1999).




 46 We also reject Maddaus' s argument that a firearm enhancement cannot be imposed unless the
 State proved he had been armed with a working firearm. We have previously held that this
 language from Recuenco is non -
                               binding dicta. -See State v. Raleigh, 157 Wn. App. 728, 735, 238
 P.3d 1211 ( 2010).



                                                        50
No. 41795 -2 -II



            A defendant waives the right to object to inclusion of a prior conviction when he

affirmatively acknowledges that the conviction was properly included in his offender score.
Ross, 152 Wn.2d at 229 -32. But a defendant' s silence on the issue is not sufficient to constitute

such a waiver. Hunley, 161 Wn. App. at 928 -29.

            Here, the State provided certified copies of Maddaus' s prior judgment. and sentences: A


1993 jury verdict of guilty for two counts of second degree assault while armed with a deadly

weapon; and a 1995 guilty plea conviction for unlawful possession with intent to deliver while

armed with a deadly weapon. Both offenses are " most serious offenses" under the POAA. RCW

9. 94A. 030( 32)( b), ( t).      A "[   m] ost serious offense"        includes "[   a]ny other felony with a deadly

weapon verdict under        RCW 9. 94A. 825."            RCW 9. 94A.030( 32)( t).


            Maddaus     argues    that his 1995         drug   possession        conviction was     not    a "` most      serious



offense "'    under the POAA because he " pled guilty to the offense and the enhancement; thus,

there   was    no ` verdict',"   as required   by    RCW 9. 94A.030(32)( t). Br.            of   Appellant    at   100.    In the


alternative, he argues that his 1995 deadly weapon enhancement for this crime was entered
                                               47,
 under [     former] RCW 9. 94A. 125 "               rather than RCW 9.94A.825, thus disqualifying it for

consideration under        the POAA.         Br.   of   Appellant    at   101.   Maddaus' s first argument lacks merit


because a plea of guilty is equivalent to conviction and has the same effect as a jury verdict of

             In   re   Williams, 111 Wn.2d 353, 357, 759 P. 2d 436 ( 1988).                         Maddaus' s alternative
 guilty.


 argument also fails because the language from former RCW 9. 94A.125 is identical to that .in

 RCW 9. 94A. 825;          and    RCW 9. 94A. 030( 32)( t)           references     former RCW 9. 94A. 125.                These




 47
      The   statute was recodified as      RCW 9. 94A. 825 in 2008. LAws               of   2009,   ch.   28, § 41.



                                                                51
    No. 41795 -2 -11



    portions    of   the SRA have         changed   only in their numbering,           not       in their   substance.        Thus,


    Maddaus' s argument on this point also lacks merit.

                                                     C. POAA Sentence


              Finally, Maddaus challenges his life sentence, arguing that ( 1) the classification of prior

    convictions as " elements" in some circumstances and " sentencing factors" in others violates his

    state and   federal   equal protection rights; ( 2)     the trial court' s imposition of a life sentence violated


    his Sixth and Fourteenth Amendment rights to a jury determination beyond a reasonable doubt

    that he had two prior qualifying convictions; and ( 3) his life sentence without the possibility of

    parole    violates    his   state   constitutional   due   process rights.       Br.    of   Appellant        at   107.   These


    arguments also fail.

                                                     1. Equal protection


              Maddaus argues that the POAA violates his state and federal equal protection rights

    because his      prior convictions      allegedly    elevated    the   offense   from   one    category to         another.   He


    argues    that   when proof of a prior conviction elevates                a crime, (    1) the State must prove the


    conviction beyond a reasonable doubt, but ( 2) the POAA violates equal protection because it

    permits     the State to      prove   his   prior crimes    by    a mere ' preponderance          of    the   evidence.       We


    disagree.


               Equal protection guarantees that persons similarly situated with respect to the legitimate

    purposes of the law must receive equal treatment. State v. Williams, 156 Wn. App. 482, 496, 234

    P. 3d 1174, review denied, 170 Wn.2d 1011( 2010); U.S. CONST. amend. XIV; WASH. CONST. art.

     1, §   12. We recently analyzed the same issue in Witherspoon, holding that the defendant' s equal

    protection challenge to his POAA sentence failed because there is a rational basis to distinguish



                                                                 52



i
No. 41795 -2 -II



between a recidivist charged with a serious felony and a person whose conduct is felonious only

because    of a prior conviction        for   a similar offense.       Witherspoon, 171 Wn. App. at 304 -05; see

also State v. Langstead, 155 Wn. App. 448, 454 -57, 228 P.3d 799, review denied, 170 Wn.2d

1009 ( 2010);    Williams, 156 Wn. App. at 496 -99. Adhering to our rationale in Witherspoon, we

reject Maddaus' s equal protection challenge here.

                                                     2. Prior convictions


          Maddaus next argues that the trial court violated his Sixth and Fourteenth Amendment


rights when it failed to prove his prior qualifying convictions by a jury determination beyond a

reasonable     doubt.     Again,    we        recently     rejected   this   same   argument   in Witherspoon.   We


recognized that current Washington Supreme Court case law interpreting the POAA has

 consistently continued to hold that a judge can determine a prior -conviction for -POAA

sentencing    purposes and       that   a   jury   determination is    not required."   Witherspoon, 171 Wn. App.

at   317 ( citing State   v.   Smith, 150 Wn.2d 135, 143, 75 P. 3d 934 ( 2003), cert. denied, 541 U.S.


909, 124 S. Ct. 1616, 158 L. Ed. 2d 256 ( 2004); In re Pers. Restraint ofLavery, 154 Wn.2d 249,

256 - 57, 111 P. 3d 837 ( 2005); State              V.   Mutch, 171 Wn.2d 646, 659, 254 P. 3d 803 ( 2011)).      We


further noted that all three divisions of the Washington Court of Appeals have also rejected this

argument.      Witherspoon, 171 Wn. App. at 317 ( citing State v. Rivers, 130 Wn. App. 689, 692,

 128 P. 3d 608 ( 2005) ( Division One),              review    denied, 158 Wn.2d 1008 ( 2006),      cert. denied, 549

U.S. 1308 ( 2007);      State v. McKague, 159 Wn. App. 489, 515 - 17, 246 P. 3d 558 ( Division Two),

 affrd,   172 Wn.2d 802, 262 P. 3d 1225 ( 2011);                State v. O'Connell, 137 Wn. App. 81, 90 -91, 152

 P. 3d 349 ( Division Three),       review         denied, 162 Wn.2d 1007 ( 2007)).       Again adhering to existing

 case law, we hold that Maddaus' s argument also fails here.



                                                                 53
No. 41795 -2 -H



                                            3. Due process balancing test

       Finally, Maddaus argues that the imposition of a life sentence without parole violates due

process under article 1, section 3 of the Washington constitution when analyzed under the civil


liberties deprivation test. outlined by the United States Supreme Court in Mathews v. Eldridge,

424 U. S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976) 48                  We disagree.

       In State v. Heddrick, our Supreme. Court explicitly rejected the Mathews test for criminal

matters.   State   v.   Heddrick, 166 Wn.2d 898, 904         n. 3,   215 P. 3d 201 ( 2009). Instead, it applied the


due process analysis found in Medina v. California, 505 U.S. 437, 443, 112 S. Ct. 2572, 120 L.

Ed. 2d 353 "( 1992).           Heddrick, 166 Wn.2d    at   904   n.3   ( "[   T]he Mathews. balancing test does not

provide    the   appropriate      framework for assessing the validity            of state procedural rules. ") ( citing



Medina, 424 U.S.          at   334 -35).   Nevertheless, our Supreme Court did use Mathews to resolve a


due process challenge in the context of assessing a witness' s competency to testify, but only

because the issue ( witness competency)            might " arise     in   a civil or criminal      proceeding."   State v.


Brousseau, 172 Wn.2d 331, 346 n.8, 259 P. 3d 209 ( 2011).


          Maddaus' s due process question focuses on the procedure for determining a criminal

defendant' s     prior   history    under   the POAA =     an issue " that is unique to the criminal context."


Brousseau, 172 Wn.2d at 346 n.8. Therefore, in light of our Supreme Court' s limited application

of the Mathews test in Brousseau, we decline Maddaus' s invitation to apply the Mathews test




48 In Mathews, the United States Supreme Court held that, in determining what process is due in
 a given situation, courts should weigh ( 1)        the    private   interest    at stake; (   2) the risk of an erroneous
 deprivation of such interest through current procedures, and the probable value of additional or
 substitute procedural safeguards; and ( 3) the government interest, including the additional burden
 of added procedural safeguards. Mathews, 424 U.S. at 321.


                                                            54
No. 41795 -2 -II



here. Because he presents no other argument in support of his due process claim, we hold that he

has failed to show that existing procedural safeguards under the POAA are insufficient.

                              VIII. REMAINING ADDMONAL GROUNDS ( SAG)

                                       A. Request for New Appointed Counsel


       Maddaus asserts that the trial court erred in denying his request to fire his attorney and

for appointment of new counsel. We disagree.

       A defendant has the right to retain his counsel of choice; denial of a request to retain new

counsel   may unlawfully deprive the defendant              of   that   right.     State v. Chase, 59 Wn. App. 501,

506, 799 P. 2d 272 ( 1990).            But the right to retain the counsel of one' s choice is not unlimited;

instead, the   request must       be   made within a reasonable         time   before trial. Chase, 59 Wn. App. at


506. Absent substantial reasons for delay, a late request will generally be denied, especially if a

continuance    may     delay trial.      Chase, 59 Wn.    App.    at   506.    We review a trial court' s denial of a


motion to substitute counsel for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 733, 940

P. 2d 1239 ( 1997),       cent.   denied, 523 U. S. 1008 ( 1998).             To determine whether the trial court


abused its discretion in denying a defendant' s request for • ubstitute counsel, we consider the ( 1)
                                                            s

extent of   the   alleged conflict, (     2) adequacy of the trial court' s inquiry, and ( 3) timeliness. of the

request. In re Pers. Restraint ofStenson, 142 Wn.2d 710, 724, 16 P. 3d 1 ( 2001).

          On the third day of trial, Maddaus asked for new counsel, stating,

          Yeah,   at   this time   I' d like to fire my   counsel.      I   need   new   counsel.   I can' t afford
          to hire [ retained counsel] and continue to pay him like this. I've asked him to do
          several things. A letter, I don' t know, somehow from me to Mr. Woodrow made
          it to the prosecutor' s office. Now, it might be possible that Mr. Woodrow could
          have been the one to send that letter himself. I didn' t do it.




                                                            55
No. 41795 -2 -
             1I



3 VRP    at   263 -64. The trial       court responded, "     I   am not   going to    allow     it   at   this late date....   I


have already     ruled on     the   letter."   3 VRP at 264. Maddaus did not provide any new substantial

reason to support his request for new counsel, especially in light of the lateness of his request
three days into the trial. Thus, we hold that the trial court did not abuse its discretion in denying

this request.


                                                     B. Judicial Bias


         Maddaus also asserts that the trial court was biased against him and failed to act


impartially because the trial court denied several of his counsel' s requests to be heard outside the

presence of     the   juty   and " ma[ de] a    bunch   of rulings all     in favor   of   the   state."      SAG    at   46. The


record does not support these assertions.


         We    presume- that a       judge     acts without   bias   or prejudice.      State v. Dominguez, 81 Wn.


App.    325, 330, 914 P. 2d 141 ( 1996).                The law requires both actual impartiality and the

appearance of      impartiality      of a   judge.    State v. Post, 118 Wn.2d 596, 618, 826 P. 2d 172, 837'


P. 2d 599 ( 1992).      Having reviewed the record, we find no basis to support Maddaus' s claim that

the trial judge       was either    actually   or   apparently biased      against    Maddaus.             Dominguez, 81 Wn.


App. at 330.

                                                    C. Cumulative Error


         Finally, Maddaus asserts that we must reverse his convictions under the cumulative error

doctrine.      Cumulative error may warrant reversal, even if each error standing alone would

otherwise be considered harmless, when the errors combined denied -the defendant a fair trial.

State   v.   Weber, 159 Wn.2d 252, 279, 149 P. 3d 646 ( 2006);                State v. Greiff, 141 Wn.2d 910, 929,

 10 P. 3d 390 ( 2000).        The defendant, however, bears the burden of proving an accumulation of



                                                              56
     No. 41795 -2 -II


     error of such magnitude that retrial is necessary. State v. Yarbrough, 151 Wn. App. 66, 98, 210

     P. 3d 1029 ( 2009).   Maddaus has failed to satisfy his burden of demonstrating an accumulation of

     errors sufficient to require a retrial on all counts; furthermore, most of his alleged errors

     considered individually have failed. Thus, the cumulative error doctrine does not apply.

              We remand to the trial court to vacate either Count VI or Count VII because these two


     witness tampering convictions were based on a single unit of prosecution and should result in a

     single   conviction   at   resentencing.   We affirm Maddaus' s other convictions and his firearm


     sentencing enhancements.


              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.




                                                           Hunt, J.
     I concur:


i.
                                       ylj
     1ohanson, A.C.J.




                                                         57
No. 41795 -2 -II



          QUINN- BRINTNALL, J. ( concurring) —           I agree with the entirety of the majority opinion

with the exception of its analysis that Robert Maddaus does not have the right for a jury to find

whether he is a persistent offender subject to incarceration for life without the possibility of

parole    under   the Persistent Offender     Accountability      Act ( POAA), RCW 9. 94A.570.              For the


reasons stated in my opinions in State v. Witherspoon, 171 Wn. App. 271, 306, 286 P. 3d 996

 2012) ( plurality    opinion), review granted,      177 Wn.2d 1007 ( 2013), State v. McKague, 159 Wn.


App.                                     Brintnall, J.,
         489, 525, 246 P. 3d 558 ( Quinn -                       concurring in part and dissenting in part),

aj"d, 172 Wn.2d         802,   262 P. 3d 1225 ( 2011),   and State v. Rudolph, 141 Wn. App. 59, 72, 168

                          Brintnall, J.,
P. 3d 430 ( 2007) ( Quinn -                     dissenting),    review     denied, 163 Wn.2d 1045 ( 2008), I.


continue to question a trial court' s constitutional authority to impose a - sentence beyond that

supported by a jury verdict based on a trial court' s factual finding that a defendant is a persistent
offender. But because of a key factual distinction between the present case and those considered

in my dissenting analyses on this issue in the opinions referenced above, I conclude that any
violation of Maddaus' s jury trial sights in this instance is harmless and concur with the

majority' s result on the POAA issue.

             In both Witherspoon and McKague, I discussed how the trial court' s imposed sentence

 exceeded the maximum statutory penalty for the offense of conviction established by the
 legislature.     In both cases, the defendant' s " third strike" for purposes of the POAA involved a

         B                                                      of   10   years confinement.       Witherspoon, 171
 class       felony   with a   statutory   maximum   penalty


 Wn. App. at 314 ( defendant' s third strike involved second degree robbery, a class B felony that
 normally carries a maximum penalty of 10 years confinement); McKague, 159 Wn. App. at 527
 n.22    ( Quinn-Brintnall, J., concurring in    part and      dissenting   in   part) (   defendant' s second degree




                                                          58
No. 41795 -2 -II



assault conviction, a class B felony, had a statutory maximum penalty of 10 years confinement).

And in both cases the trial court sentenced the defendant to a sentence longer than the statutory

maximum        of   10   years     confinement —         life   without       the possibility   of parole—      without a jury

          that the defendant         was a persistent offender                beyond   a reasonable    doubt.         Witherspoon,
finding

171 Wn.                  314; McKague, 159 Wn.                  App.    at               Brintnall, J.,
                                                                             527 ( Quinn -                concurring in part
            App.    at



and    dissenting   in   part).    In my view, this procedure does not comport with longstanding practice

in Washington       nor    the Sixth Amendment' s               protections of a        defendant' s   jury   trial   rights.    See,


e.   g., Witherspoon, 171
                          Wn.              App.    at   305 -08.       By imposing a sentence that exceeds the one

supported by the jury verdict, as in McKague and Witherspoon, a.defendant' s. Sixth Amendment
right to have his sentence supported by a jury' s verdict remains unfulfilled.

          But here, a jury entered a guilty verdict finding Maddaus guilty of first degree felony
            First degree                                is             A     felony.   RCW 9A. 32. 030( 2).           The statutory
murder.                           felony    murder           a class



                            for   class   A felonies is       confinement       for life. RCW 9A.20: 021( 1)(          a).   The trial
maximum sentence




court sentenced Maddaus to life without the possibility of parole under the POAA. Our Supreme

 Court has previously determined that in the context of the POAA, there is no significant
 difference between a life sentence with the possibility of parole and a sentence of life without the

               of parole.         State    v.                              48, 83 P. 3d 970 ( 2004); State v.
                                                Thomas, 150 Wn.2d 821, 847 -
 possibility


 Rivers, 129 Wn.2d 697, 714, 921 P. 2d 495 ( 1996).                           Accordingly, in contrast with McKague and

 Witherspoon, the trial court here imposed a sentence within the permitted statutory maximum of




                                                                       59
No. 41795 - -
          2 II



the offense of conviction. Therefore, Maddaus' s sentence is supported by the jury' s verdict and

any violation of Maddaus' s jury trial rights in this instance is harmless.

                                               EMM                2

                                                                   R          r
                                                    1    i'




                                                                                  k




                                                   3
