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                                                                                                a



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II


STATE OF WASHINGTON,                                            No. 41795 2 II
                                                                          - -


                               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ROBERT JOHN MADDAUS,                                      UNPUBLISHED OPINION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 Offender Accountability Act' POAA)life sentence and
                                                                       (
the firearm sentencing enhancements for his murder, attempted kidnapping, and assault

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

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

court committed several evidentiary errors (4)his counsel rendered ineffective assistance for




    RCW 9.
        570.
          94A.

2
  More,specifically Maddaus challenges the trial court's restricting his cross -examination of a
State witness (which he further 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 II
              - -



    several   reasons   3 ;5)some
                           (        of the trial court's   jury   instructions   were erroneous   4 ;6)the State
                                                                                                     (

    committed misconduct during closing argument (7)his two witness tampering convictions
    constituted double jeopardy, with insufficient evidence to support one of them; and (8)several

    sentencing errors warrant resentencing.

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

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

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

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

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




    3
        More specifically, Maddaus contends that his trial counsel rendered ineffective assistance in
    failing to object to (1) trial court's requiring that he wear restraints in court; 2)
                            the                                                        ( admission of
    recorded jail phone conversations; ( )
                                         3 prosecutorial misconduct during closing arguments; ( ) 4
    jury instructions on "substantial step" and "deadly           weapon ";      and (5)a detective's statement
    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
                                      "                                      and " crazy ";
                                                               under the law,"                     suggested that
    Maddaus had " uped"the defense investigator; and presented prejudicial power point slides. Br.
                  d
    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.

                                                           2
i
No. 41795 2 II
          - -




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 ( oth
                                                                                             b

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

enhancements.


                                               FACTS


                                              I. CRIMES


                           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 $ 40, 00 in drugs and cash.
                                                     1 0

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

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

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 ( ) he was placing
                                                                         1 as

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) the
                                                                                 ( as

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


                                                   0
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 early morning on the 16th of November.

         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 of November 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: "[ ny
                                                                                                    A]

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

bullets," "paintball guns, paintballs, marbles or items associated with paintball guns,"
        any                                                                            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'l either beI' talk to you in person, or either that, or I'l be in jail." VRP at
               l           —ll                                           l             10

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

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] [he]had received a call after
                                                                ecause
    Maddaus] had gotten arrested from the Thurston County Jail, and I knew that the phones were
recorded."10 VRP at 1247.




                                                 0
No. 41795 2 II
          - -



                                         II. PROCFDURE


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

felony murder), degree attempted kidnapping, second degree assault of Abear (assault with
              first
a deadly weapon), four counts of witness tampering (two based on his contacts with Farmer
                and

from the jail). first degree murder, attempted kidnapping, and assault charges each carried
              The
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." 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).
to
   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] at I' concerned about is only the gun, nothing else
                                      "[ h   m
that was taken out of the trailer."
                                  VRP ( ug. 12, 2010)at 58.
                                      A



                                                11
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 :..   receptionist ... to not discuss with anyone whatever contents ( f
                          the                                                           o
         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 frame this thing, seal it up,
                                                               -
         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 wise, and
                                                                                -
         familiar with the ways of manipulation, familiar with tampering with witnesses,
         we allege, who has violated court orders, who has been sitting in the jail for a year
         and comes up with a gimmick. And the gimmick is all I'e got to do is send a
                                                                v
         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]' understanding that the inmates
                                                       s my
                                                        "[ t
do not have access to the white labels. They do have access to those types of envelopes ... but
                             VRP (
not access to a felt tip pen."     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. Trial


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

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

restraints.




                                                 0
No. 41795 2 II
          - -



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

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

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

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
         supporting a witness's credibility] —
                                 [         other than convictions of crime, which you
         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..... let you go into further specific incidents of
                                    I will not
         conduct at this point.

10 VRP at 1129 30 ( mphasis added).
               - e

                                                  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' simply assault in the second degree or not guilty." 16
                                        s

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] or about November 16,
                                                               "[ n

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 alternative 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
                                                                        "

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


bodily injury upon another, tending but failing to accomplish it and accompanied with the

                         or an
apparent present ability," "         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

imminent fear of       bodily injury." CP      at 433.   The "to convict" instruction provided, O] or
                                                                                                "[ n

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

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

deadly weapon." CP at 446. Finally, the "to convict"instruction for count III,Maddaus's first

degree attempted kidnapping of Abear, provided, "[ n or about November 13, 2009, the
                                                O]




                                                         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 " he defendant was armed
                                                                       t

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

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] u can consider the reasonableness of the witness's statements in the context
           o
       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
       did?I mean, that's poppycock. That's unreasonable under the law. That's crazy.
       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] for the accused argued that theythey worked hard, Defense Counsel]
         ounsel                                              [
       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' just suggesting that [Defense
                                                 m
        Counsel],like Chelsea Williams, was duped into being this defendant's agent.
        I' got somebody that's got this information.' ` Oh, we' l go talk to that
         ve                                                      l
       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
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 . ALLS," "
                       C      FALSE ALIBI ATTEMPT,"
                                                  DISGUISE AND COVER-

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

EYEWITNESS TO EVENTS." 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 up, and he worked
                                                                   -
       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 crimesalleged 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 ( first degree felony murder, ( )two counts of
                                          1)                            2

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

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.
                                                                                                           13
         At   sentencing, the     State   provided   certified   copies   of Maddaus's criminal   history.      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.
                                                                570, life without
                                                                 94A. to

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
                                                                                                      14
search    of Maddaus's           residence    was    improper      under    the   Fourth Amendment           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 " trike"offenses:
                                                                            s
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. .CONST. amend. IV.
      S



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

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

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

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. ( trial, Maddaus moved
                                                         a)( At
                                                          3).
                                                          5
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. ( error is manifest if it has practical and
                                     a)( An
                                         3).,
                                         5
           consequences or causes actual prejudice to the defendant. State v. Nguyen, 165
identifiable
Wn. d 428, 433, 197 P. d 673 (2008).
  2                  3
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
No. 41795 2 II
          - -



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

challenge to the firearm.

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

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. d
                                          2     354, 359, 275 P. d 314 (2012). Similarly, the affidavit
                                                               3


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

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

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

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

                                        B. Affidavit of Probable Cause


          The search warrant affidavit described Tremblay's account to policethat 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 and may be concealed in the home, mobile home[,] outbuildings
                                                                        or
       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. d 133, 148 49,977 P. d 582 (1999)).
                             2            -       2             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[ d]any specific facts linking such illegal activity to the residence
                               e

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

location simply because police do not know where else to look for it. Thein, 138 Wn. d at 148,
                                                                                   2

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. d at 150. On the contrary, the affidavit recited a series
                                    2

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



                                                 17
No. 41795 2 II
          - -



assume that evidence of the crime could be recovered from his residence if not found in Lundy's,

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 " irearms"because the supporting affidavit did not suggest that " ifles,shotguns,
                f                                                               r

or other long -
              barreled 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. (
                              s
                              a)(preservation requirements.
                               3)'
                               5

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

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

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

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

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

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

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

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




                                                  18
No. 41795 2 II
          - -




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


                                        II. 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

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


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. d 792, 842, 975 P. d 967
                                                             2                  2

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. d at
                                                                                         2

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. d at 846 (citing State v.
                                                                   2

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

shackling is subject to a harmless error analysis. State v. Jennings, 111 Wn. App. 54, 61,44 P. d
                                                                                              3

1 ( 2002) citing State v. Damon, 144 Wn. d 686, 692, 25 P. d 418, 33 P. d 735 ( 2001)).
          (                            2                 3            3

         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
     We note that (1)no long -barreled guns were seized under the warrant, 2)he identifies no
                                                                           (
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
    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
                                                                                                        18
    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. d 612, 619, 41 P. d 1189 (2002).A trial court abuses its discretion when it
                  2                 3


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


                                                      20


i
No. 41795 2 II
          - -



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

P. d 204 (2012). If
 3                         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. (
                                                                          a)( exception.
                                                                           3)
                                                                           5

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. d 1297 (1980)citing State v.
                                                                 2               (

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

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. d 506, 512, 408 P. d 247 (1965)).
                                                         2                  2

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

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




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

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



19 The following is an example of such cross -examination:
         Maddaus's counsel]: July you were picked up on a material witness warrant, but
        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.
        Maddaus's counsel]: How about some marijuana?
        Leville]:No.
        Maddaus's counsel]: And identity theft.
        Leville]:No.
        Maddaus's counsel]:Nothing.
        Leville] :I wasn'tI—wasn't arrested. I was at my home. I didn't have anything
        on me.     I wasn'twhen they pulled up on me, I had justmy 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? Volkswagen
                                                                          A
        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. (
                                                      a), trial court may abuse its
                                                       3 b). (
                                                           A

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

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

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

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




20 In certain egregious cases, prejudice may be presumed. See, e. .,
                                                                g Cory, 62 Wn. d at 372 (jail
                                                                              2
secretly recorded conversations between the defendant and his attorney);State v. Perrow, 156
Wn. App. 322, 326, 231 P. d 853 ( 2010) state detective wrongfully seized attorney -client
                              3               (
writings during search of residence and delivered writings to the State's prosecution team);
                                                                                           State
v. Granacki, 90 Wn. App. 598, 600, 959 P. d 667 (1998) state detective read from defense
                                              2                (
counsel's legal pad during a court recess).



                                                23
No. 41795 2 II
          - -



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

interference with Maddaus's attorney -client communications.
                                       21
         Unlike the facts in Garza,         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
                                                                       22
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
No. 41795 2 II
          - -


                                                                                                         23
why    his counsel's   performance   was   deficient   or   how counsel's   performance prejudiced   him.


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
                                        in violation of the     Washington "Privacy    Act ",   chapter 9.3
                                                                                                         7
jail's telephone system, allegedly

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. (
                                                                               a)(
                                                                                3).
                                                                                5

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

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

                                   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. . at
                                                                                        S

687 88; Hendrickson, 129 Wn. d at 77 78.
    -                      2         -                 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. .at 687 88;Hendrickson, 129 Wn. d at 77 78.
                      S         -                     2         -



                                                       25
No. 41795 2 II
          - -



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

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

P. d 1 ( 2004).
 3

          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


obtaining the consent of all the participants in the communication. RCW 9.3.
                                                                        030(
                                                                           1 2).
                                                                           7 ), (
                                                                               Our

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. d 83, 186 P. d 1062 ( 2008) quoting RCW
                                              2            3                (

a)).
030(
9.3.A " ommunication is private (1)
   1)(
   7  c                            when parties manifest a subjective intention

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

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 " ecorded and [is]
                                                                           r
          subject to monitor at any time."

          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. d at 88 89 (nternal citations omitted).
              2         - i

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

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


                                                   26
No. 41795 2 II
          - -



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

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

j oined 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. d at 89.
                                                                2                 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. d 531, 548, 617 P. d 1012 (1980), support his
                                           2                  2              to
arguments that (1) "[ accused person has standing to object to the admission of any illegally
                  a]
                   n
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         - We reject Maddaus's contention that he has standing to assert a
                      at 45 47.

violation of the Privacy Act on behalf of Williams, Leville; 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. d 186, 193, 102 P. d 789 (2004).
                                                  2                  3

       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. .at 687 88.
                                                  S         -

                              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 ofcourt
                                                                                          - -

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] e facts that [Abear] testified about,
                                                     "[ h

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: ( the duration and subject matter of the communication,
                                       1)
2)the location of the parties, 3)the potential presence of third parties, ( )the role of the
                                  (                                          4
interloper, and (5)the interloper's relationship   to the   nonconsenting party. Christensen, 153
Wn. d at 193 (citing State v. Clark, 129 Wn. d 211, 225, 916 P. d 384 (1996)).
  2                                        2                  2             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 II
              - -




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

    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 ofcourt 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

    f


                                            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. d 354 (2009).It is generally reversible error for the
                                         3

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

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

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

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

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

i

                                                          29


i
    No. 41795 2 II
              - -



    together as a whole and reading the challenged portions in context. Hayward, 152 Wn. App. at

    642. Failure to object below, however, usually waives an issue on appeal, including

    instructional error issues. RAP 2. (
                                    a);v. Williams, 159 Wn. App. 298, 312 13, 244 P. d
                                     5 State                              -        3

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

                                     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. An instruction on an inferior degree offense is .
    proper when

           1)the statutes for both the charged offense and the proposed inferior degree
                   proscribe but one offense "; ( the information charges an offense that is
           offense "                            2)
           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. Fernandez-
                      Medina, 141 Wn. d 448, 454, 6 P. d 1150 (2000)quoting State v. Peterson,
                                    2                3               (

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

    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. d at 455. "[T] e
                                     Fernandez-             2              h            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. d at 456 (citing State v.
                                                                      2



    26 See also State v. Teal, 117 Wn. App. 831, 837, 73 P. d 402 (2003)citing State v. Haack, 88
                                                          3              (
    Wn. App. 423, 427, 958 P. d 1001 (1997),
                            2              review denied, 134 Wn. d 1016 (1998)), d, 152
                                                                2              aff
    Wn. d 333, 96 P. d 974 ( 004).
      2            3       2
    27
      Maddaus does not challenge the trial court's denial of Maddaus's request for an instruction on
    fourth degree assault.


                                                      0


i
No. 41795 2 II
          - -




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

117 Wn. d
      2                               RCW
             479, 816 P. d 718 (1991)).
                       2                                 031
                                                         9A. 6.provides, in relevant part, that a
                                                           3

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. 6.
                                  d),
                                  031(
                                     1)(
                                     3 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, 141
Fernandez-                      Wn. d at 456 ( The evidence must affirmatively establish the
                                  2

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. 6.in ways that are not relevant to this case.
                                           031
                                             3
Accordingly, we cite the       current version of the   statute, LAWS   of   2011, ch. 238, § l;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) weapon used in the second degree assault sentencing enhancement, and
                   the

2) victim
  the          in the first   degree attempted kidnapping charge .   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), (Instruction 30).Because we presume the jury followed the trial
                          446
                      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 " he State must designate the acts upon which it relies to prove its case"or " he
                  t                                                                            t
court may instruct the jury to agree unanimously as to which acts support a specific count."
State v. Fisher, 165 Wn. d 727, 755, 202 P. d 937 (2009) citing State v. Petrich, 101 Wn. d
                         2                     3              (                                  2
566, 570, 683 P. d 173 (1984),
                  2              modified on other grounds by State v. Kitchen, 110 Wn. d 403,
                                                                                           2
756 P. d 105 (1988)).
       2
        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. d 315, 326, 804 P. d 10 (1991).
                                                               2                      2
A continuing course of conduct requires an ongoing enterprise with a single objective."State v.
Love, 80 Wn. App. 357, 361, 908 P. d 395 (1996).This determination requires a commonsense
                                      2
evaluation of the facts. State v. Handran, 113 Wn. d 11, 17, 775 P. d 453 (1989).
                                                 2                2
30
     State v. Perez -Valdez, 172 Wn. d 808, 818 19,265 P. d 853 (2011).
                                   2            -       3

                                                   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) trial court failed to define
                                                                the

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. (
                                                   a)(preservation exception and on the
                                                    3)
                                                    5

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

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



                                                 33
No. 41795 2 II
          - -



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

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

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

a)(
2. (
 3).
 5

       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 " anifest."
                                                         m

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

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

                                       1. " eadly weapon"
                                          D

       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, [Maddaus]

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
                            31
followed these instructions.     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. d at 818 19.
                        2          -


                                                 34
No. 41795 2 II
          - -



assaulted Abear with   a   deadly weapon 32 ;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, I] order for conduct to be a substantial step it must be strongly corroborative of the
        "[ n

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

emphasis added). Maddaus argues that " orroborative" is a stronger word than "
                                     c                                       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. d 202 (1992),
                                 2             affd, 123 Wn. d 467, 869 P. d 392 (1994)
                                                           2             2




32
  For the first time in his reply brief,Maddaus also argues that "[
                                                                 n] in this case established
                                                                    othing
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. d 801, 809, 828 P. d 549 (1992).
                                                             2                     2
Moreover, Maddaus provides no further argument or authority to support this claimed error.
RAP 10.a)( Saunders v. Lloyd's of London, 113 Wn. d 330, 345, 779 P. d 249 (1989)
            6);
            3(                                               2                      2
courts need not consider issues unsupported by adequate argument and authority). Thus, we do
not consider its merits.


                                                        35
No. 41795 2 II
          - -



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

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

       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. d 402 (2003). Instruction 20 provides, A
                                                        3                                        "

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 of that

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.




                                                        01
    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
                           34
    State Constitution.         Estelle v. Williams, 425 U. . 501, 503, 96 S. Ct. 1691, 48 L.Ed. 2d 126
                                                          S

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

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

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

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

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

    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. d 696, 704, 286 P. d 673 (2012) citing
                                                      2                  3              (

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

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

    175 Wn. d at 704.
          2


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




    33 We have previously stated the applicable standard of review for ineffective assistance of
    counsel claims. See n.8.
                         1

    34
         U. .CONST. amend. VI and XIV;WASH. CONST. art. I, 22.
          S                                                §


                                                        37


i
No. 41795 2 II
          - -



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

Thorgerson, 172 Wn. d at 438).
                  2

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

waiver on appeal unless that party shows the statement was "` flagrant and ill-
                                                           so                 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. d 559, 578, 79 P. d 432 (2003) quoting
                                                       2                 3               (

State v. Brown, 132 Wn. d 529, 561, 940 P. d 546 (1997)).
                      2                  2              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. d 24, 85, 882 P. d 747 (1994).
                                                                2                2

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. d at
                                                                                         2

438.
                                                                                                                r


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

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

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

171 Wn. App. 808,       _,       288 P. d 641,650 ( 012)quoting State v. Emery, 174 Wn. d 741, 761,
                                      3           2      (                            2

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

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

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

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

Wn. d at 762 (quoting Slattery v. City ofSeattle, 169 Wn. 144, 148, 13 P. d 464 (1932)).
  2                                                                     2




                                                         38
No. 41795 2 II
          - -




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

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

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. d at 451. But this did not happen here.
                                      2
         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 statementthat 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 "mplies wrongful deception or even dishonesty in the context of a
                           i
court proceeding."Thorgerson, 172 Wn. d at 451 52.
                                      2         -


                                                     39
No. 41795 2 II
          - -



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 "` oppycock, "' unreasonable under the law, "' and
                                        p              "`

        and suggesting that Maddaus
crazy, "'                                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] u' find as a jury that [Copeland] lied when he took the stand,"
                          ll
                          "[ o

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. d 244, 291 92, 922
                                                                        2            -

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

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

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

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

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

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

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

    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) counsel was ineffective in
                                                                     his

    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. d at 699. The Supreme Court described these slides as follows:
                            2

           In one slide, the booking photo appeared above the caption, DO YOU BELIEVE
                                                                       "
           HIM?" another booking photo slide the caption read, WHY SHOULD YOU
                    In                                              "
            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 in 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. d at 701 02 (
                    2          - internal citations omitted). Glasmann failed to object,just as

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



                                                     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. d
                                                                                          2

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

capital letters" added to the prejudice. Glasmann, 175 Wn. d at 708 (citing State v. Gregory,
                                                         2
158 Wn. d
      2                 -                         The Court believed there was a substantial
               759, 866 67, 147 P. d 1201 ( 2006)).
                                 3


likelihood that the misconduct affected the jury because "[ ] mental state required for the
                                                          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. d at 708, 710.
                     2

       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. d at 700. Glasmann did not deny culpability;
                                             2

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

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 " n emotional
                                                                                        a

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


                                                     42
No. 41795 2 II
          - -




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

175 Wn. d at 706; 710 n. .
      2                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 ( ) two witness tampering convictions, Counts VI and VII,
                                1 his

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
                          36
Fourteenth amendments          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.




36 U. :CONST. amend. V;XIV.
    S


                                                   43
No. 41795 2 II
          - -



                              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. d 736, 746, 132 P. d 136 (2006) citing RAP
                                           2                  3              (

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

Wn. d 72, 76, 226 P. d 773 (2010)). defendant may face multiple charges arising from the
  2                3              A
                                                                                                       17
same   conduct, but double jeopardy prohibits multiple convictions for the               same   offense.    State V.


Hall, 168 Wn. d 726, 729- 0, 3d 1048 (2010).
            2        230 P.
                        3

          Washington's witness tampering statute provides in relevant part:

          1) person is guilty of tampering with a witness if he or she attempts to induce a
              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. 2.
    120(
       1 a).
       7 ), ( this statute in Hall, our Supreme Court held that ( )a]
           Addressing                                           1 "[

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

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

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

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


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 "[ o person shall be ...
                         n]                                  twice put in jeopardy"for the same offense.

                                                           44
No. 41795 2 II
          - -



result in only one conviction for witness tampering based on his contacts with Farmer in order to

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. d 666, 679, 57 P. d 255 (2002). A
                                                    2                 3

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

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

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. 2. LAWS
                                          120.
                                            7                     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.

                                              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
                       40
liberally   construe        the document in favor of validity. State v. Witherspoon, 171 Wn. App. 271,

294, 286 P. d 996 (2012)citing State v. Winings, 126 Wn. App. 75, 84, 107 P. d 141 (2005))..
          3              (                                                 3

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. d
                                                                                          2

220, 227, 237 P. d 250 (2010). We review the information as a whole, according to common
               3


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      against the risk of ... ` sandbagging'that is, that a defendant might keep quiet
            notice                                    —
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. d 220, 227, 237 P. d 250 (
    2                   3       2010)).



                                                      we
No. 41795 2 II
          - -




sense and including implied facts,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 .     State v. Kjorsvick, 117 Wn. d 93, 105 06,
                                                                                    2           -

2d 86
812- . (1991); also State v. Williams, 162 Wn. d 177, 182, 170 P. d 30 ( 007).
   P         see                             2                  3      2

       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. d 428, 434, 180 P. d 1276 (2008).Thus, the
                                             2                  3

State must include sentencing enhancements, such as deadly weapon and firearm allegations, in

the information. State v. Crawford, 159 Wn. d 86, 94, 147 P. d 1288 .( 006) State must set
                                          2                3         2      (

forth in information its intent to seek enhanced penalties); re Bush, 95 Wn. d 551, 554, 627
                                                           In              2

P. d 953 (1981).
 2

       Here, the information alleged that ( ) the time Maddaus committed first degree murder
                                          1 at

and attempted kidnapping (Counts I and III), "was armed with a deadly weapon, a firearm ";
                                           he

and (2)while committing second degree assault (Count IV),
                                                        Maddaus "was armed with a deadly

weapon, a firearm, to wit:   a   semi -
                                      automatic   pistol." 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. d 774, 788, 83 P. d
                                                                              2                   3
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. d 93, 101 02,812
                                                                                2            -
P. d 86 (1991).But if the necessary facts appear, or are implied, in some form in the charging
  2
document, we then consider the second analytical        prong, prejudice.   Goodman, 150 Wn. d at
                                                                                           2
788. Maddaus fails to meet this test here.




                                                   47
No. 41795 2 II
          - -



RCW 9. ) Counts f and IV (murder and assault),giving Maddaus express notice
    533( 4A.for
       3
       9

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
        43
statute,     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[ ng] facts which are necessarily implied," we must on a first time post-
      i                                         as                    -       conviction



42 RCW 9. )
       533( 4A.provides in part:
          3
          9
           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 9.1. and the offender is being
                                                          010 4
           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 9.1.
                                                                                010
                                                                                 4
           and the offender is being sentenced for an anticipatory offense under chapter
           9A. 8 RCW to commit one of the crimes listed in this subsection as eligible for
              2
           any firearm enhancements, the following additional times shall be added to the
           standard sentence range determined under subsection (2) this section based on
                                                                  of
           the felony crime of conviction as classified under RCW 9A. 8.
                                                                  020:
                                                                    2

           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 ( ) this subsection;
                 f of

           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) this subsection.
            of
43
     But it did cite the deadly weapon enhancement statute, RCW 9. recently recodified as
                                                                602,
                                                                 94A.
825.LAWS
9.
 94A.                  of   2009, ch. 28, §41.
No. 41795 2 II
          - -




challenge to the information, we hold that the information's allegation that Maddaus was armed

with a deadly weapon, a firearm," Count III "easonably appris[ d]" that the State was
                      "         on          r                e him

seeking a firearm sentencing enhancement for this attempted kidnapping charge. CP at 22. See

Kjorsvick, 117 Wn. d at 109.
                 2
                                                      44
         Furthermore, in   contrast with   Recuenco, the jury instructions here defined " irearm"as
                                                                                        f

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 assault committed,with a deadly weapon,
to wit:
   =          handgun "'; but the special verdict form asked the jury to find only whether
              a

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. d at 431 32. The Supreme Court vacated Recuenco's firearm sentencing
                    2          -
enhancement, holding that ( ) trial court had erred in imposing a sentence enhancement that
                             1 the
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. d
                                                                                           2
at 442. The Court based its holding in part on (1) trial court's failure to define "firearm"in
                                                    the
the jury instructions, and (2) lack of any jury finding that the defendant had been armed with
                              the
a firearm during commission of the underlying offense. Recuenco, 163 Wn. d at 431 32;see
                                                                             2           -
also In re Pers. Restraint ofDelgado, 149 Wn.App. 223, 236 37,204 P. d 936 (2009)applying
                                                              -          3              (
Recuenco where information failed to allege firearm sentencing enhancements and jury
instructions failed to define "
                              firearm ").

45
     Reply Br. of Appellant   at 48.
    No. 41795 2 II
              - -




    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.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. d at
                                                                                           2

    101 02.
        -


                                      B. Prior " trike"Convictions
                                               S


            Maddaus next argues, for the first time on appeal, that the prosecution failed to prove his

    two prior " trike"convictions. Br. of Appellant at 97. This argument lacks merit.
              s
             To calculate a defendant's offender score and sentence properly, the Sentencing Reform

    Act of 1981, chapter 9. RCW, requires sentencing courts to determine a defendant's criminal
                          94A

    history based on his prior convictions and the level of seriousness of the current offense. RCW

    505;
    9.
     94A. State v. Ross, 152 Wn. d 220, 229, 95 P. d 1225 (2004). The State must prove a
                               2                 3

    defendant's criminal history by a preponderance of the evidence. State v. Hunley, 161 Wn. App.

    919, 927, 253 P. d 448, aff'd, 175 Wn: d 901, 287 P. d 584 (2012). The best evidence of a
                   3                     2             3

    prior conviction is a certified copy of the judgment. State v. Mendoza, 165 Wn. d 913, 920, 205
                                                                                  2

    P. d 113 (2009) quoting State v. Lopez, 147 Wn. d 515, 519, 55 P. d 609 (2002)). is the
     3               (                            2                 3              It

    State's obligation to ensure that the record before the sentencing court supports the criminal

    history determination. State v. Ford, 137 Wn. d 472, 480, 973 P. d 452 (1999).
                                                2                  2




I   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      We have previously held that this
                                                            firearm.
    language from Recuenco is non -
                                  binding dicta. See State v. Raleigh, 157 Wn. App. 728, 735, 238
    P. d 1211 (2010).
      3

                                                      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. d at 229 32. But a defendant's silence on the issue is not sufficient to constitute
            2          -

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

9.2)( A "[ ost serious offense" includes "[ ] y other felony with a deadly
b),
030( 4A.t).
   3
   9       m]             (               an

weapon verdict under RCW 9.
                         825." 9.2)(
                           94A. RCW 030( 4A.
                                    t).3
                                       9

          Maddaus argues that his 1995 drug possession conviction was not a "` ost serious
                                                                             m

offense "'   under the POAA because he "pled guilty to the offense and the enhancement; thus,

there was no `verdict'," required by RCW 9.2)( of Appellant at 100. In the
                      as                 t).
                                         030( 4A. Br.
                                            3
                                            9

alternative, he argues that his 1995 deadly weapon enhancement for this crime was entered

under [ former] RCW 9.
                    125 "
                      94A.                        rather than RCW 9.
                                                                  825,thus disqualifying it for
                                                                   94A.

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

guilty.    In   re    Williams, 111 Wn. d 353, 357, 759 P. d 436 ( 1988). Maddaus's alternative
                                      2                  2


argument also fails because the language from former RCW 9.
                                                         125 is identical to that in
                                                           94A.

RCW 9.
    825;and RCW 9.2)(
     94A.       t) 3
                   9                           125. These
                030( 4A. references former RCW 9.
                                                94A.




47
     The statute     was   recodified   as       825 in 2008. LAWS of
                                             RCW 9.94A.                 2009, ch. 28, §41.


                                                        51
No. 41795 2 II
          - -



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) classification of prior
                                                                         the

convictions as "elements"in some circumstances and "sentencing factors"in others violates his

state and federal equal protection rights; 2) trial court's imposition of a life sentence violated
                                           ( the

his Sixth and Fourteenth Amendment rights to a jury determination beyond a reasonable doubt

that he had two prior qualifying convictions; and (3) life sentence without the possibility of
                                                     his

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, ( )the State must prove the
                                                               1

conviction beyond a reasonable doubt, but (2) POAA violates equal protection because it
                                             the

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. d 1174, review denied, 170 Wn. d 1011( 010); S.CONST. amend. XIV;WASH. CONST. art.
 3                              2       2     U.

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
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. d 799, review denied, 170 Wn. d
                                               -        3                             2

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. d 135, 143, 75 P. d 934 (2003),
                                     2                 3             cent. denied, 541 U. .
                                                                                        S

909, 124 S. Ct. 1616, 158 L.Ed. 2d 256 (2004); re Pers. Restraint ofLavery, 154 Wn. d 249,
                                             In                                   2

25657, 111 P. d 837 (2005);
   -        3             State v. Mutch, 171 Wn. d 646, 659, 254 P. d 803 (2011)).
                                                2                  3             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. d 608 (2005) Division One),
     3              (            review denied, 158 Wn. d 1008 (2006),
                                                      2              cent. denied, 549

U. . 1308 (2007);
 S              State v. McKague, 159 Wn. App. 489, 515 17,246 P. d 558 (Division Two),
                                                        -       3

affd, 172 Wn. d 802, 262 P. d 1225 (2011);
            2             3              State v. O'onnell, 137 Wn. App. 81, 90 91, 152
                                                   C                            -

P. d 349 (Division Three),
 3                       review denied, 162 Wn. d 1007 (2007)).
                                              2              Again adhering to existing

case law,we hold that Maddaus's argument also fails here.



                                                53
No. 41795 2 II
          - -




                                    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. .319, 333, 96 S. Ct. 893,47 L.Ed. 2d 18 (1976). disagree.
     S                                               We

       In State v. Heddrick, our Supreme Court explicitly rejected the Mathews test for criminal

matters. State v. Heddrick, 166 Wn. d 898, 904 n. ,215 P. d 201 (2009).Instead, it applied the
                                  2             3       3

due process analysis found in Medina v. California, 505 U. .437, 443, 112 S. Ct. 2572, 120 L.
                                                         S

Ed. 2d 353 (1992).Heddrick, 166 Wn. d at 904 n. ( T] e Mathews balancing test does not
                                  2           3 "[ h

provide   the   appropriate framework for assessing   the   validity   of state   procedural   rules. ")citing
                                                                                                        (


Medina, 424 U. . at 334 35).
             S          -   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 " rise in a civil or criminal proceeding."State v.
                                             a

Brousseau, 172 Wn. d 331, 346 n. ,259 P. d 209 (2011).
                 2             8       3

          Maddaus's due process question focuses on the procedure for determining a criminal

defendant's prior history under the POAAan issue "that is unique to the criminal context."
                                        —

Brousseau, 172 Wn. d at 346 n. . Therefore, in light of our Supreme Court's limited application
                 2           8

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 ( ) private interest at stake; 2) risk of an erroneous
                                       1 the                          ( the
deprivation of such interest through current procedures, and the probable value of additional or
substitute procedural safeguards; and ( ) government interest, including the additional burden
                                      3 the
of added procedural safeguards. Mathews, 424 U. .at 321.
                                                 S

                                                 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 ADDITIONAL 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. d 272 (1990).But the right to retain the counsel of one's choice is not unlimited;
          2

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. d 668, 733, 940
                                                                              2

                 cent. denied, 523 U. . 1008 ( 1998). To determine whether the trial court
P. d 1239 ( 1997),
 2                                  S


abused its discretion in denying a defendant's request for substitute counsel, we consider the (1)

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. d 710, 724, 16 P. d 1 ( 2001).
                                                2                 3

       On the third day of trial,Maddaus asked for new counsel, stating,

       Yeah, at this time I' like to fire my counsel. I need new counsel. I can't afford
                             d
       to hire [retained counsel] and continue to pay him like this. I'e asked him to do
                                                                      v
       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 II
          - -



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 jury and "ma[ e] a bunch of rulings all in favor of the state." SAG at 46. The
                            d

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. d
                    2         141 (   1996). The law requires both actual impartiality and the

appearance of impartiality of a judge. State v. Post, 118 Wn. d 596, 618, 826 P. d 172, 837
                                                            2                  2

P. d 599 (1992).Having reviewed the record, we find no basis to support Maddaus's claim that
 2

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. d 252, 279, 149 P. d 646 (2006);
                      2                  3             State v. Greiff, 141 Wn. d 910, 929,
                                                                              2

10 P. d 390 (2000).
    3             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. d 1029 (2009).Maddaus has failed to satisfy his burden of demonstrating an accumulation of
 3

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

040,
2.6.it is so ordered.
 0




                                                 Hunt, I
 concur:


                         i



            Ow"
              i
                             0."
                                   J,




                                               57
No. 41795 2 II
          - -



              BRINTNALL, J. concurring) —
         QuiNN-              (                      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),   570. For the
                                                                      RCW 9.94A.


reasons stated in my opinions in State v. Witherspoon, 171 Wn. App. 271, 306, 286 P. d 996
                                                                                   3

2012)plurality opinion),
      (                review granted, 177 Wn. d 1007 (2013),
                                             2              State v. McKague, 159 Wn.

App. 489, 525, 246 P. d 558 (Quinn -
                    3              Brintnall, J.,
                                                concurring in part and dissenting in part),

aff'd,172 Wn. d 802, 262 P. d 1225 (2011), State v. Rudolph, 141 Wn. App. 59, 72, 168
            2             3              and

P. d 430 (2007) Quinn -
 3              (     Brintnall, J.,
                                   dissenting),review denied, 163 Wn. d 1045 (2008),I
                                                                    2

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 rights 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
                                              "
class B   felony   with   a   statutory maximum penalty of 10 years confinement. Witherspoon, 171


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.2 (Quinn -
 2         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 confinementlife without the possibility of parole—
                                —                                    without a jury

finding   that the defendant   was a   persistent offender beyond      a   reasonable doubt.   Witherspoon,

171 Wn. App. at 314; McKague, 159 Wn. App. at 527 (Quinn -
                                                         Brintnall, J.,
                                                                      concurring in part

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,

 g Witherspoon, 171 Wn.
e. .,                              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
murder. First      degree felony   murder is   a   class A   felony.   RCW    9A. 2. The statutory
                                                                              030(
                                                                                 2).
                                                                                 3

maximum sentence for class A felonies is confinement for life. RCW 9A. 0:
                                                                   a).
                                                                   021(
                                                                      1)(
                                                                      2  The trial

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

possibility   of   parole. State v. Thomas, 150 Wn. d 821, 847 48, 83 P. d 970 (2004);
                                                  2            -       3             State v.

Rivers, 129 Wn. d 697, 714, 921 P. d 495 (1996).Accordingly, in contrast with McKague and
              2                  2

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.



                                                             wIffil.
                                                            W- "




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