             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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JORGE RENE PEREZ BARROSO                                                             XT      c:<~
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AND ROILAND FERNANDEZ                            UNPUBLISHED OPINION
MEDINA,

                     Appellants.                 FILED: November 2, 2015




       Lau, J. — Jorge Barroso and Roiland Fernandez Medina were each convicted in

a joint trial of first degree burglary. Medina was also convicted of misdemeanor

unlawful display of a firearm. They contend the trial court erred in excluding alleged

drug evidence found in the victim's apartment, in refusing to give self-defense and

reasonable doubt jury instructions, and in violating their confrontation clause rights by

denying face-to-face interaction with witnesses. They also argue the deputy prosecutor

improperly commented on their decision not to testify. Because the trial court properly

excluded the alleged drug evidence, properly declined to give the defendants' proposed

jury instructions, violated no confrontation clause rights, and the deputy prosecutor's

comments were proper, we affirm the convictions.
No. 73638-8-1/2


                                        FACTS

      On April 7, 2013, Travis Swan, Snezhana Stetsyuk, DeAngelo White, and two-

year-old Kayliana were visiting Dijon Wiley and Kyla King at the Willow Apartments in

Lakewood, Washington. Wiley stepped outside to smoke a cigarette and noticed a car

parked behind his parking space. Wiley and Fernandez Medina argued when Wiley

asked him to move the car. Fernandez Medina told Wiley, "I have something for you. I

will be right back." Report of Proceedings (RP) (Jan. 13, 2014) at 376. Fernandez

Medina drove off.

       Fernandez Medina returned about 10 to 30 minutes later with Jorge Barroso,

Barbara Gener Ono, and Lazaro Valle-Matos. They walked up to Wiley's apartment

door. One of them was carrying a wooden baseball bat. Fernandez Medina knocked

on the door and said, "I am back." RP (Jan. 13, 2014) at 386. Stetsyuk and King told

them repeatedly to leave and that a child and weapons were in the house. Fernandez

Medina told Wiley to come out. The door was forced open. Fernandez Medina

immediately hit Wiley in the face. Fernandez Medina and Wiley struggled just inside the

door of the apartment. Valle-Matos, Ono, and Barroso tried to follow Fernandez Medina

through the door. Valle-Matos held a large knife. White had a gun that he always

carried with him. When White saw Valle-Matos' knife, he said that he was armed and

would shoot. White shot Valle-Matos when Valle-Matos tried to stab Wiley.

       After the gunshot, Fernandez Medina, Barroso, and Ono quickly left. Valle-

Matos died later that evening from the gunshot wound. Police responded and arrested

Fernandez Medina, Barroso, and Ono nearby.
No. 73638-8-1/3


      The State charged Barroso and Fernandez Medina with one count of first degree

burglary and one count of second degree assault. Prior to trial, the State moved to

exclude evidence of two packages of white powder police found underneath a mattress

in Wiley's apartment. Defense counsel claimed the drug evidence was admissible as

part of the res gestae of the crime, to explore possible bias on the part of the State's

witnesses who were not charged with any drug offenses, and to challenge the

thoroughness of the police investigation. The trial court granted the motion on grounds

that the evidence was more prejudicial than probative. The trial court allowed defense

counsel to ask witnesses about alcohol or drug use on the night of the incident to test

their perceptions.

       After the State rested its case, the court dismissed the second degree assault

charge against Barroso. The jury convicted Barroso and Fernandez Medina each of

one count of first degree burglary on accomplice and principal liability. The jury found

Fernandez Medina not guilty of second degree assault but guilty of the lesser included

misdemeanor crime of unlawful display of a weapon. The defendants appeal.1

                                            ANALYSIS

       Exclusion of Alleged Drug Evidence

       Fernandez Medina argues the trial court abused its discretion when it excluded

evidence that police discovered two small bags of white powder in Wiley's apartment.

No tests were performed on the white powder substance. This court reviews a trial

court's evidentiary rulings for an abuse of discretion. State v. Grier. 168 Wn. App. 635,

644, 278 P.3d 225 (2012). A trial court abuses its discretion only if the decision is



       1Codefendant Barbara Ono is not part of this appeal.
                                                 3
No. 73638-8-1/4


"manifestly unreasonable, or exercised on untenable grounds, or for untenable

reasons." State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

Fernandez Medina contends that this alleged drug evidence was admissible as (1) res

gestae evidence, (2) evidence of bias, or (3) to impeach the thoroughness of the police

investigation. Because the evidence was unrelated to the crime charged and the trial

court allowed defense counsel to ask Wiley about drug use and any preferential

treatment from the State, the trial court did not abuse its discretion when it excluded the

alleged drug evidence.

       Res Gestae


       First, Fernandez Medina argues the alleged drug evidence discovered in Wiley's

apartment was relevant as "res gestae" evidence. Washington courts have recognized

that "res gestae" or "same transaction" evidence may be admissible to "complete the

story of the crime on trial by proving its immediate context of happenings near in time

and place." State v. Lane. 125 Wn.2d 825, 831, 889 P.2d 929 (1995) (quoting State v.

Tharp. 27 Wn. App. 198, 204, 616 P.2d 693 (1980)). Fernandez Medina contends that

the alleged drug evidence would have "completed the picture" of the events leading up

to the shooting because drug use could explain Wiley's angry and belligerent behavior.

       But the alleged drug evidence Fernandez Medina sought to admit was not

immediately relevant to the context of the charged crime. For example, in State v.

Trickier. 106 Wn. App. 727, 25 P.3d 445 (2001), Trickier was charged with possession

of a stolen credit card. Trickier. 106 Wn. App. at 733. The State sought to admit as res

gestae evidence that police discovered at least 16 pieces of other stolen property in

Trickler's possession. Trickier. 106 Wn. App. at 734. The court held that the trial court
No. 73638-8-1/5


abused its discretion when it admitted this evidence because it was not immediately

relevant to the charged crime and unfairly prejudiced the defendant:

             While the events leading up to the discovery of the stolen credit
       card were relevant and somewhat probative, it was not shown that Mr.
       Trickler's possession of other allegedly stolen items was an inseparable
       part of his possession of the stolen credit card, which is the test commonly
       used in this state ... After hearing the witnesses' testimony and seeing
       evidence of 16 pieces of stolen property, the jury was left to conclude that
       Mr. Trickier is a thief.

Trickier. 106 Wn. App. at 734 (emphasis added). Similarly, Fernandez Medina has

failed to show that the alleged drug evidence discovered in Wiley's apartment was an

inseparable part of the circumstances surrounding the charged crime. If the alleged

drugs had somehow been related to the altercation between Wiley and Fernandez

Medina, it might be admissible as res gestae evidence. But Fernandez Medina has

failed to show that the alleged drug evidence is in any way related to the events leading

up to the altercation other than police happened to discover two bags of white powder

underneath Wiley's mattress well after the events occurred.

       Fernandez Medina claims that the evidence might explain Wiley's behavior, but

the trial court specifically tailored its ruling to allow defense counsel to inquire about

Wiley's drug use. Typically, a witness' use of alcohol or other drugs at the time of the

events in question is generally admissible to show that the witness may not remember

the events accurately. State v. Clark. 48 Wn. App. 850, 743 P.2d 822 (1987). But a

witness' general use of alcohol or other drugs, unrelated to the specific events in

question, is inadmissible for impeachment unless the proponent is able to offer some

proof of the effects of the drugs upon the credibility of the witness at the time of trial.

State v. Tigano. 63 Wn. App. 336, 818 P.2d 1369 (1991). Here, Fernandez Medina
No. 73638-8-1/6


argues the alleged drug evidence should have been admitted as res gestae evidence

because it could explain Wiley's behavior. But the trial court already allowed defense

counsel to ask the witnesses about any substances they may have used on the night in

question:

             [A]ny issues regarding drugs found are irrelevant except to the
      extent that the parties can present evidence that any witness and/or
      defendant appeared to be impaired or under the influence of a controlled
      substance and/or alcohol. That type of evidence, impairment, that might
      affect conduct is generally admissible. This is not a drug-related case,
      and so, in general, other—unless there is evidence that this dispute was
      over some sort of a drug deal or something of that nature, it's not relevant
      to the proceedings as I see it.

RP (Jan 13, 2014) at 279-80 (emphasis added). The trial court allowed defense

counsel to introduce drug evidence insofar as it was related to the witnesses'

impairment. If defense counsel believed that drug usage might be relevant to Wiley's

behavior, they were free to ask Wiley if he had used any substances that night. The

record shows defense counsel specifically asked Wiley if anyone in his apartment had

consumed any substances. The State objected, referring to its motion in limine seeking

to exclude drug evidence. But the trial court overruled the State's objection,

commenting that defense's question was "an appropriate question to ask." RP (Jan. 15,

2014) at 766. In other words, defense counsel was able to address drug evidence for

the precise purpose they claimed it was relevant—whether Wiley's behavior or

perception was impaired due to drug use.

       Fernandez Medina relies heavily on State v. Grier. 168 Wn. App. 635, 278 P.3d

225 (2012). Grier is inapplicable here. Grier appealed her second degree murder

conviction, arguing the trial court erred when it admitted res gestae evidence.

Specifically, the trial court admitted evidence that Grier had insulted two witnesses and
No. 73638-8-1/7


threatened one of them with a gun. Grier. 168 Wn. App. at 643-44. The court held that

the trial court did not abuse its discretion because this evidence illustrated "the

continuing events leading to the murder." Grier. 168 Wn. App. at 647-48. Unlike this

case, the res gestae evidence offered in Grier was directly relevant to factual issues

underlying the second degree murder charge. Further, the evidence offered in Grier

provided the crime's context by detailing the specific events leading up to the shooting.

Fernandez Medina failed to show that the drug evidence here is relevant to his burglary

and assault charge. The record shows defense counsel specifically asked Wiley

whether he had consumed any substances that night. Under these circumstances, the

trial court acted well within its discretion when it excluded the alleged drug evidence.

       Bias


       For similar reasons, Fernandez Medina has failed to show that the trial court

should have allowed the alleged drug evidence to show that Wiley received preferential

treatment from the State. Fernandez Medina contends that the State never charged

Wiley with any drug offense despite finding two bags of white powder in his apartment.

He claims declining to charge Wiley was a form of preferential treatment the State

granted Wiley in exchange for his testimony. Therefore, the alleged drug evidence was

necessary to show bias.

       But Fernandez Medina was expressly allowed to cross-examine any witness

regarding preferential treatment. Generally, a criminal defendant has a constitutional

right to impeach a prosecution witness with evidence of bias. Davis v. Alaska. 415 U.S.

308, 316-18, 94 S. Ct. 1105, 39 L Ed. 2d 347 (1974). However, "the scope or extent of

such cross-examination is a matter within the discretion of the trial court." State v.
No. 73638-8-1/8


Kimbriel. 8 Wn. App. 859, 866, 510 P.2d 255 (1973) (quoting State v. Willis. 3 Wn. App.

643, 645, 476 P.2d 711 (1970)). Although the trial court here excluded the alleged drug

evidence, he expressly allowed defense counsel to ask witnesses "whether police or

prosecutors have offered or made any promises or threats for their testimony." RP

(Jan. 13, 2014) at 291-92. This ruling was well within the trial court's discretion,

particularly in light of the general rule that a witness' drug or alcohol use is inadmissible

except to show that it impacted the witness' behavior or perception. See, e.g.. Clark. 48

Wn. App. at 850.

       Fernandez Medina cites Kimbriel to support his argument. But Kimbriel does not

apply to this case because there is no evidence of preferential treatment here. Defense

counsel essentially sought to admit the evidence for an improper purpose—to invite the

jury to view Wiley in a bad light.

       Evidence of Inadeouate Police Investigation

       Fernandez Medina also argues that the alleged drug evidence was relevant to

discredit the caliber of the police investigation. He claims that, because police did not

test the substance, this amounts to "sloppy police work" sufficient to attack the State's

theory of the case. Br. of Appellant Fernandez Medina at 18.

       This argument fails. Although evidence of sloppy police work may be relevant to

impeaching the thoroughness of a police investigation, such evidence is typically only

relevant in limited circumstances. For instance, mishandled or inadequately collected

evidence may be relevant when the allegedly tainted evidence is presented to show the

defendant's guilt. See, e.g.. State v. Rafav. 168 Wn. App. 734, 803, 295 P.3d 83

(2012). Poor police investigation may also be relevant to show that investigators failed



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No. 73638-8-1/9


to pursue leads that the alleged crime was committed by someone other than the

defendant. See United States v. Crosby. 75 F.3d 1343, 1347 (9th Cir. 1996). Here, the

alleged drug evidence was irrelevant to the charged crimes. The presence or absence

of the alleged drugs in Wiley's apartment had no bearing on whether Fernandez Medina

committed either burglary or assault. Similarly, that evidence did not tend to show that

someone else had committed the burglary or assault. The trial court did not abuse its

discretion when it concluded that the alleged drug evidence was inadmissible as more

prejudicial than probative.

       Self-Defense Instruction (Fernandez Medina)

       Fernandez Medina argues the court erred when it declined to give his proposed

self-defense instruction to the jury. The trial court did not abuse its discretion when it

concluded that no evidence indicated Fernandez Medina acted in self-defense.

       We review the trial court's decision not to provide a self-defense instruction for an

abuse of discretion:

              The standard of review when the trial court has refused to instruct
       the jury on self-defense depends on why the court refused the instruction .
       .. If the trial court refused to give a self-defense instruction because it
       found no evidence supporting the defendant's subjective belief of
       imminent danger of great bodily harm, an issue of fact, the standard of
       review is abuse of discretion. If the trial court refused to give a self-
       defense instruction because it found no reasonable person in the
       defendant's shoes would have acted as the defendant acted, an issue of
       law, the standard of review is de novo.

State v. Read. 147 Wn.2d 238, 243, 53 P.3d 26 (2002). Here, the record shows that the

trial court refused to give the self-defense instruction because it found no evidence

supporting Fernandez Medina's subjective belief that he was in danger of injury. See

RP (Jan. 21, 2014) at 1277 ("There is no testimony that your client believed on any
No. 73638-8-1/10


grounds that he was actually in danger of injury and acted in defense of himself....").

Accordingly, an abuse of discretion standard applies here. Fernandez Medina does not

argue that any other standard applies. A trial court abuses its discretion only if the

decision is "manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons." Junker. 79 Wn.2d at 26.

       When a defendant asks the trial court to instruct the jury on self-defense in an

assault case,2 the defendant has the burden of introducing some evidence

demonstrating that he reasonably believed he was about to be injured. State v. Woods.

138 Wn. App. 191, 199, 156 P.3d 309 (2007). The trial court must view the evidence in

the light most favorable to the defendant. State v. Callahan. 87 Wn. App. 925, 933, 943

P.2d 676 (1997). "Although it is essential that some evidence be admitted in the case

as to self-defense, there is no need that there be the amount of evidence necessary to

create a reasonable doubt in the minds of jurors on that issue." State v. Janes. 121

Wn.2d 220, 237, 850 P.2d 495 (1993) (quoting State v. McCullum. 98 Wn.2d 484, 488,

656 P.2d 1064 (1983)). While this is a low burden, "it is not nonexistent." Janes. 121

Wn.2d at 237. Indeed, "a self-defense instruction is not available to an aggressor."

State v. George. 161 Wn. App. 86, 96, 249 P.3d 202 (2011): see also State v. Currie. 74

Wn.2d 197, 198, 443 P.2d 808 (1968) ("In a prosecution for assault it is not improper to

refuse an instruction on self-defense where there is nothing to justify a reasonable

inference that the defendant acted in legitimate self-defense. The undisputed evidence




      2 There is some confusion as to whether Fernandez Medina presented his self-
defense theory.
                                                 10
No. 73638-8-1/11


clearly establishes that the defendant was the aggressor and precipitated the incident in

Question." (emphasis added) (citations omitted)).

      The trial court did not abuse its discretion when it declined to give Fernandez

Medina's proposed self-defense instruction because he failed to present any evidence

that he had a reasonable belief that he was about to be injured. In fact, the record

shows that Fernandez Medina "precipitated the incident in question," and therefore

denying his proposed self-defense instruction was proper. Currie. 74 Wn.2d at 198.

      As discussed above, the series of events culminating with the physical altercation

began with a verbal argument between Fernandez Medina and Wiley in the parking lot

of the apartment complex. Eventually Fernandez Medina left, telling Wiley, "I have

something for you. I will be right back." RP (Jan. 13, 2014) at 376. Fernandez Medina

went to Wiley's apartment complex to visit Wiley's neighbor, James Schlagel. Schlagel

testified that he went over to Fernandez Medina's apartment shortly after Fernandez

Medina argued with Wiley in the parking lot. Schlagel said that Fernandez Medina was

in his apartment with three others. Fernandez Medina told Schlagel that "he had to get

his gun." RP (Jan. 21, 2014) at 1164. Schlagel explained: "He [Fernandez Medina]

went into his apartment and came out suddenly, real quick, and [came] running, and he

had the pistol in his pants, and I could see him having it. He said, 'Get in the car.' I

went... and the car was full, a couple—several people in there, four, I think, or

something." RP (Jan. 21, 2014) at 1164. Schlagel said they drove back to the

apartment complex where he lived. Then, Fernandez Medina and the other three men

with him went to apartment 5—where Wiley lived—and "beat on the door and yelled

out." RP (Jan. 21, 2014) at 1167.



                                                11
No. 73638-8-1/12


       Snezhana Stetsyuk, who was inside Wiley's apartment at the time, testified that

she saw four men approach the door to the apartment. She recognized Fernandez

Medina was among them. She remembered him from the earlier argument with Wiley.

She testified that "they started banging on the door," so they gave them verbal warnings

to leave: "We started yelling, 'there is a two-year-old girl in here. There is a licensed

carrier with a gun in here and take your problems elsewhere, and leave us alone.' They

kept on banging and banging         " RP (Jan. 13, 2014) at 383. Kyla King, Wiley's wife,

testified that Fernandez Medina was telling Wiley to come outside of the apartment.

DeAngelo White, who was also in the apartment, testified that "someone was banging

on the door. It wasn't a regular knock, so it's boom, boom, boom, boom. Someone is

just banging on the door." RP (Jan. 14, 2014) at 514. He also stated that the

individuals inside the apartment gave Fernandez Medina and the others verbal

warnings to leave: "So Kyla [Wiley's wife] was also screaming, you know, 'We have a

gun in here. My little sister is in here. You know, get away from here. There is a gun in

here, we'll shoot.'" RP (Jan. 14, 2014) at 524.

       Multiple witnesses testified that after the door opened, Fernandez Medina stated

"I'm back" and punched Wiley in the face3:

       [STETSYUK:]      Fernandez said ... "I am back." He said the B word
                  and then punched him [Wiley] right away.

RP(Jan. 13, 2014) at 386.

       [WILEY:]    I started walking toward the door because, you know, clearly
            you just broke my door, and you know, I got hit in the face.

       [STATE:]      And is the person who hit you here in court?
       [WILEY:]      Yes.


       3 The record also shows that Valle-Matos reached in and tried to stab Wiley.
                                                  12
No. 73638-8-1/13


      [STATE:]        Who was it?
      [WILEY:]        The one with the cream shirt.
      [STATE:]        So Mr. Fernandez Medina?
      [WILEY:]        Yes.

RP(Jan. 15, 2014) at 735-37.

      [WHITE:]    [T]he next thing I know ... Fernandez and Dijon [Wiley] are
           face to face, and then Fernandez threw a blow at [Wiley].

RP(Jan. 14, 2014) at 517.

      [STATE:]         What was the distance from you to Dijon [Wiley] at the time
             he was hit in the face?
      [KING:]          I was probably not even like two feet away from him .. .

      [STATE:]         Did you see the individual who hit him?
      [KING:]          Yes.
      [STATE:]         Go ahead and describe that person for us.
      [KING:]          The person would be the defendant in the purple dress-up
             shirt.
      [STATE:]         Okay. Now, up until this point in your testimony, had you
            seen      Defendant Fernandez Medina up until this point?
      [KING:]          No.
      [STATE:]         Okay. So is the first time you saw him, this incident at the
             door?
      [KING:]      Yes.
      [STATE:]     How much of him did you see at that time?
      [KING:]      I have seen—I have seen his face and basically everything
            that he was wearing and all of that pretty much. He didn't really talk
             much. It was that, "I'm back" and then hit him.

RP (Jan. 14, 2014) at 643-45. The witnesses' testimony shows that Fernandez Medina

precipitated the incident in question here. He and Wiley got in an argument in the

parking lot. Fernandez Medina left, but he told Wiley that he would be back and that he

had something for him. He then went back to his apartment and got his gun and three

friends—Barbara Ono, Lazaro Valle-Matos, and Barroso. The four of them then

returned to Wiley's apartment. Three of the four men outside Wiley's apartment were

armed; Fernandez Medina had a gun, Valle-Matos had a knife, and either Ono or



                                                  13
No. 73638-8-1/14


Barroso had a baseball bat. They did not leave despite repeated verbal warnings from

the individuals inside the apartment. Fernandez Medina banged on the door and told

Wiley to come out. After the door was pushed open, Fernandez Medina punched Wiley.

       Fernandez Medina claims that "there was evidence from which the jury could

infer Wiley was the aggressor." Br. of Appellant Fernandez Medina at 22. But the

citation following this assertion is a discussion between defense counsel and the trial

court, not evidence. Fernandez Medina states that "not everyone saw the first slap, and

the jury could have found given the evidence of Wiley's aggression, that Wiley struck

first." Br. of Appellant Fernandez Medina at 23. Nothing in the record supports an

inference that Wiley struck first. At best, the record shows that DeAngelo White may

not have seen who threw the first punch:

       [MS. HIGH]: [Y]ou had indicated that you had heard a slap, unmistakable
                   sound of someone being hit; is that right?
       [WHITE]:    Yes.
       [MS. HIGH]: But you didn't actually see who threw that first punch, did
                   you?
       [WHITE]:    No.

RP (Jan. 14, 2014) at 569.4 This does not show that Wiley struck first, particularly in

light of the evidence from the other witnesses, discussed above, who all testified that

Fernandez Medina hit Wiley.

       Fernandez Medina also relies on other evidence suggesting that Wiley was

acting aggressively. For example, White testified that after the argument with

Fernandez Medina in the parking lot, Wiley said he would "be ready if anyone comes




      4 This exchange occurred during cross-examination. It is inconsistent with
White's testimony during direct examination, where he stated that Fernandez Medina
punched Wiley.
                                               14
No. 73638-8-1/15


back." RP (Jan. 14, 2014) at 555. White also agreed that Wiley was "amped up" after

the argument. RP (Jan. 14, 2014) at 552. When Fernandez Medina came back to

Wiley's apartment, Wiley walked to the door and said, "What the F you want?" RP (Jan.

15, 2014) at 733. Fernandez Medina also points to the "threats" made by individuals

inside the apartment. For example, King yelled that they had a gun and would shoot.

RP(Jan. 14, 2014) at 524.

      These few instances in the record do not "justify a reasonable inference that the

defendant acted in legitimate self-defense." Currie, 74 Wn.2d at 198. Nor do they show

that Fernandez Medina believed he was in danger of injury. Woods. 138 Wn. App. at

199. Fernandez Medina characterizes Wiley's behavior as "aggressive," but nothing in

the record suggests that Wiley's behavior led Fernandez Medina to believe he might be

in danger. On the contrary, Fernandez Medina precipitated the events culminating in

the physical altercation. After the initial argument, Fernandez Medina warned Wiley that

he would be back, he left the parking lot, he retrieved three friends and weapons, and

then he returned specifically to confront Wiley. The record shows the individuals inside

the apartment were afraid of Fernandez Medina and wanted him to leave. After the

argument in the parking lot, King said they just waited in their apartment for the

defendants to come back. She said that she was worried because she did not know

what was going to happen and because there was a child in the house. She continued:

"I told them to please go away because there was a child and there is weapons in the

house ... I yelled loud enough to where they could hear me through the door... I kept

repeating it because they just kept knocking." RP (Jan. 14, 2014) at 650. The alleged

"threats" Fernandez Medina claims support his self-defense argument were verbal



                                                15
No. 73638-8-1/16


warnings intended to persuade Fernandez Medina to leave. Under these

circumstances, the trial court did not abuse its discretion when it denied Fernandez

Medina's proposed self-defense instruction.5 See Currie. 74 Wn.2d at 198.

       Prosecutorial Misconduct


       Barroso contends the prosecutor made improper statements during closing

argument that allegedly commented on Barroso's failure to testify. Specifically, Barroso

claims that the prosecutor stated that certain facts were "undisputed" and that there was

"no evidence" showing contrary facts throughout closing argument. These comments,

he argues, necessarily invited the jury to draw a negative inference from his decision

not to testify. We disagree.

       Both the federal and state constitutions protect a criminal defendant's rights to

remain silent and be free from self-incrimination. U.S. Const, amend. V; Wash. Const.

art. 1, § 9. A prosecutor violates these rights when he or she improperly comments on

a defendant's refusal to testify. State v. Ramirez. 49 Wn. App. 332, 336, 742 P.2d 726

(1987). A prosecutor's statements are impermissible when they are of "such character

that the jury would 'naturally and necessarily accept it as a comment on the defendant's

failure to testify.'" Ramirez. 49 Wn. App. at 336 (quoting State v. Crawford. 21 Wn. App.

146, 152, 584 P.2d 442 (1978)). However, "a prosecutor may state that certain

testimony is not denied, without reference to who could have denied it... and may

comment that evidence is undisputed." State v. Morris. 150 Wn. App. 927, 931, 210

P.3d 1025 (2009) (citation omitted); see also State v. Ashbv. 77 Wn.2d 33, 37, 459

P.2d 403 (1969) ("Surely the prosecutor may comment upon the fact that certain



      5 None of the defendants testified.

                                                16
No. 73638-8-1/17


testimony is undenied, without reference to who may or may not be in a position to deny

it and, if that results in an inference unfavorable to the accused, he must accept the

burden ... because the choice to testify or not was wholly his."). When a prosecutor

asserts that certain facts are undisputed or that there was no evidence as to contrary

facts, there is no violation unless "no one other than [the defendant] himself could have

offered the explanation the State demanded." State v. Fiallo-Lopez. 78 Wn. App. 717,

729, 899 P.2d 1294.

       All of the allegedly improper statements Barroso cites are permissible because

they either (1) comment that evidence is "undisputed," or (2) state that certain testimony

is not denied without any reference to who could deny it. See Morris. 150 Wn. App. at

931.


       Barroso alleges that the following statements impermissibly comment on his

refusal to testify:

       The prosecutor stated that the evidence showed "what Dijon Wiley did and where

   he was at the time he sustained the slap or the hit or whatever it was that was done

   to him as soon as that door was open." RP (Jan. 22, 2014) at 1351. The prosecutor

   next said that this evidence was "all but undisputed." RP (Jan. 22, 2014) at 1351.

       The prosecutor later commented that it was "virtually undisputed that inside that

   apartment was a two-year-old child," and that "there was no testimony from anyone

   about an invitation to come into that apartment." RP (Jan. 22, 2014) at 1352.

       The prosecutor continued to illustrate the consistency of the witnesses'

       testimony:

                     There is no evidence that Dijon Wiley, that when the door
               was opened, they stepped back so that he could step out and they


                                               17
No. 73638-8-1/18


             could get it on in the parking lot, no evidence of that whatsoever.
             No one testified that that happened. There was no evidence that
             Valle-Matos backed away from the door in order to allow the fight to
             be brought outside, none of them.

RP(Jan. 22, 2014) at 1360.

      After describing what the witnesses' stated about the events near the door of the

   apartment, the prosecutor asked, "in that description, do you see any evidence

   whatsoever of just being present at the scene as though one were a bystander?" RP

   (Jan. 22, 2014) at 1368.

      "[Tjhey were at the door not backing away, not saying, you know, there is gonna

      be a fight out here in the parking lot, no testimony of that whatsoever." RP (Jan.

      22, 2014) at 1368.

       Regarding the witnesses: "Is there any evidence that they all got together and got

      all their stories straight? None whatsoever." RP (Jan. 22, 2014) at 1370.

      "Barroso . .. intentionally walked toward that apartment. Don't think there is

      whole lot of dispute about that. Intentionally positioned themselves at the door of

      the apartment. No dispute about that." RP (Jan. 22, 2014) at 1371.

      These statements are permissible because the prosecutor did not directly or

indirectly reference who could deny it. Many of the witnesses at trial could have denied

these statements because they personally witnessed the events in question. In other

words, Barroso was not the only person who could have denied these facts. Defense

counsel had a complete opportunity to cross-examine each witness about the

circumstances surrounding the incident in the apartment, the defendants' behavior, and

whether the witnesses "got their stories straight." Therefore, the prosecutor's

statements here do not directly or indirectly comment on Barroso's refusal to testify.


                                               18
No. 73638-8-1/19


See Fiallo-Lopez. 78 Wn. App. at 729 (statements impermissible because "no one other

than [the defendant] could have offered the explanation the State demanded."); see also

Morris. 150 Wn. App. at 931-32 ("We agree with the State that it was no more improper

for the prosecutor to comment on the consistency of the testimony of the six witnesses

who testified in the State's case-in-chief than it was for defense counsel to point out the

inconsistencies in that same testimony.").

       Barroso relies primarily on Fiallo-Lopez and State v. Fleming. 83 Wn. App. 209,

921 P.2d 1076 (1996). These cases are distinguishable. In Fleming, the court held that

the prosecutor's statements were impermissible because they "improperly shifted the

burden to the defendants to disprove the State's case." Fleming. 83 Wn. App. at 214.

Specifically, the prosecutor argued that the only way the jury could acquit was if they

proved that the State's witnesses were lying:

              Ladies and gentlemen of the jury, for you to find the defendants,
       Derek Lee and Dwight Fleming, not guilty of the crime of rape in the
       second degree, with which each of them have been charged, based on
       the unequivocal testimony of [D.S.] as to what occurred to her back in her
       bedroom that night, you would have to find either that [D.S.] has lied about
       what occurred in that bedroom or that she was confused; essentially that
       she fantasized what occurred back in that bedroom.

Fleming. 83 Wn. App. at 213. The prosecutor than continued, stating there was no

evidence that the witness had lied and that the defendants had not explained some of

the evidence in the case:

               [T]here is absolutely no evidence . .. that [D.S.] has fabricated any
       of this or that in any way she's confused about the fundamental acts that
       occurred upon her back in that bedroom. And because there is no
       evidence to reasonably support either of those theories, the defendants
       are guilty as charged of rape in the second degree.

             ... [I]t's true that the burden is on the State. But you ... would
       expect and hope that if the defendants are suggesting there is a


                                                19
No. 73638-8-1/20



       reasonable doubt, they would explain some fundamental evidence in this
       [matter]. And several things, they never explained.

Fleming. 83 Wn. App. at 214. The prosecutor's statements in Fleming did three things:

(1) they suggested that the only way the jury could acquit was if they found that the

victim either lied or was confused, (2) they indicated there was no evidence that the

victim had lied or was confused, and (3) they directly commented on the defendants'

failure to explain the evidence in the case. The court held that the combination of these

statements improperly shifted the evidentiary burden and infringed upon the defendants'

Fifth Amendment rights. Fleming. 83 Wn. App. at 216.

       Fleming is distinguishable here. First, the prosecutor here never directly or

indirectly commented on the defendants' failure to explain any evidence. Second, the

prosecutor's statements here did not improperly shift the evidentiary burden by

suggesting the defendant's had failed to disprove anything asserted by the State's

witnesses. The prosecutor merely stated that certain facts were "undisputed,"

"undenied," or that there was "no evidence" showing contrary facts, and he never

indicated that the defendants were the only ones who could explain those facts. These

statements are permissible. See, e.g.. Morris. 150 Wn. App. at 931.

       Next, Barroso relies on Fiallo-Lopez. In that case, the prosecutor stated there

was "no evidence to explain why Fiallo-Lopez was present at the restaurant and at

Safeway precisely when Lima and Cooper were there for the drug transaction." Fiallo-

Lopez. 78 Wn. App. at 729. The prosecutor also "argued that there was no attempt by

the defendant to rebut the prosecution's evidence regarding his involvement in the drug

deal." Fiallo-Lopez. 78 Wn. App. at 729. Fiallo-Lopez is distinguishable for two

reasons: first, unlike the prosecutor in Fiallo-Lopez. the prosecutor here never argued

                                               20
No. 73638-8-1/21


that "there was no attempt by the defendant to rebut the prosecution's evidence."

Fiallo-Lopez. 78 Wn. App. at 729. Second, the court in Fiallo-Lopez determined the

prosecutor had committed misconduct in part because "no one other than Fiallo-Lopez

himself could have offered the explanation the State demanded." Fiallo-Lopez. 78 Wn.

App. at 729 (emphasis added). That is not the case here. Each allegedly improper

statement Barroso cites in this case involves the prosecutor asserting that a certain fact

is undisputed or that no evidence showed contrary facts. Unlike in Fiallo-Lopez.

Barroso is not the only one who could explain those facts. Many of the testifying

witnesses were present for those alleged events, and defense counsel had an

opportunity to cross-examine each witness as to those alleged facts. None of the

prosecutor's statements were improper. See Morris. 150 Wn. App. at 931 ("[a]

prosecutor may state that certain testimony is not denied, without reference to who

could have denied it..." (emphasis added)).

       Finally, absent a timely objection, a prosecutor's alleged misconduct cannot be

raised on appeal unless it was so flagrant and ill-intentioned that no curative instruction

could have obviated the resulting prejudice. State v. Warren. 165 Wn.2d 17, 29,195

P.3d 940 (2008). As discussed above, there was no misconduct here. Regardless, any

prejudice to Barroso could have been corrected with a curative instruction. Further, we

are reluctant to find prejudice when the trial court instructs the jury that a defendant's

decision not to testify cannot be used to infer guilt or prejudice. See Morris, 150 Wn.

App. at 932. The trial court provided such an instruction in this case. Barroso's

prosecutorial misconduct claim fails.




                                                 21
No. 73638-8-1/22


      Confrontation Clause

      Barroso claims the trial court violated his rights under the confrontation clause

when, at several points during the trial, he was unable to view witness testimony. But a

few minor interferences with Barroso's view of a witness does not amount to a

confrontation clause violation. Barroso argues that the confrontation clause requires a

completely uninhibited line-of-sight between the defendant and the witness throughout

an entire trial. However, such a rigid rule is not supported by case law or the underlying

purpose of the confrontation clause. Rather, "substantial compliance" is usually

adequate. Maryland v. Craig. 497 U.S. 836, 847, 110 S. Ct. 3157, 111 L. Ed. 2d 666

(1990) (quoting Ohio v. Roberts. 448 U.S. 56, 69, 100 S. Ct. 2531, 65 L. Ed. 2d 597

(1980)).

       The confrontation clause of the Sixth Amendment, made applicable to the states

through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused

shall enjoy the right... to be confronted with the witnesses against him." U.S. Const.

Amend. VI. The confrontation clause "guarantees the defendant a face-to-face meeting

with witnesses appearing before the trier of fact." Cov v. Iowa. 487 U.S. 1012, 1016,

108 S. Ct. 2798,101 L Ed. 2d 857 (1988). Typically, the purposes of the confrontation

clause are fulfilled when the witness is physically present, under oath, subject to cross-

examination, and the trier of fact can observe the witness' demeanor. Maryland. 497

U.S. at 846.

       However, the requirement for face-to-face confrontation is not without exception.

A strict, literal reading of the confrontation clause would "abrogate virtually every

hearsay exception, a result long rejected as unintended and too extreme." Roberts. 448



                                                 22
No. 73638-8-1/23


U.S. at 63. Accordingly, the Supreme Court has acknowledged that "[i]t is all but

universally assumed that there are circumstances that excuse compliance with the right

of confrontation." Maryland. 497 U.S. at 850 (quoting Graham, The Right of

Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One. 8 Crim. L

Bull. 99, 10709 (1972)). "[Substantial compliance with the purposes behind the

confrontation requirement" is sufficient. Maryland. 497 U.S. at 847 (quoting Roberts,

448 U.S. at 69). Therefore, although there is a "'preference for face-to-face

confrontation at trial,'" the Supreme Court has nevertheless "interpreted the

Confrontation Clause in a manner sensitive to its purposes and sensitive to the

necessities of trial and the adversary process." Maryland, 497 U.S. at 849 (quoting

Roberts, 448 U.S. at 63).

       Barroso identifies only five instances where defense counsel actually objected to

an alleged inability to see either a witness or the jury. First, during jury selection,

defense counsel objected to the arrangements of the courtroom, stating that he and

Barroso could not see the entire jury panel. But the trial court offered an

accommodation, which defense counsel accepted:

       MR. PEALE:            I raised the issue previously about the arrangement of
                      defendants and attorneys and the courtroom, I would like to
                      make the Court aware that the greater part of the jury panel
                      is blocked visually for me and my client. And looking across
                      the array of attorneys and because of the architecture and
                      the placement of the prosecutor, et cetera, much of the
                      panel in the box is blocked out from view. I have a perfect
                      view of the general audience area.

       THE COURT:       I invite you to stand at any point in time, yourself. If
                 you are unable to see a particular juror as opposed to the
                 whole panel, I invite you to stand. If you remind me, I will
                 ask jurors in the box to stand when they respond to a
                 question.


                                                  23
No. 73638-8-1/24


                           If your client can't see a particular juror, I invite him to
                    slide one direction or another a short distance so that—but
                    not to stand, but so that he can see that particular juror. And
                    so if you remind me, I will ask each juror to stand. There is
                    no such thing as a perfect courtroom. This is one of the best
                    in the county. Probably doesn't come up near the standards
                    of the many courtrooms you've practiced in throughout the
                    state, particularly King County, but we will do the best we
                    can.

      MR. PEALE:      Your Honor, it's always the judge that's the thing I rely
                upon, and I am very happy with Your Honor.
      THE COURT:       Flattery gets you a lot around here, so keep it up.
                Anything else?
      MR. PEALE:           No. Thank vou. Your Honor.



RP (Jan. 8, 2014) at 235-36 (emphasis added). Next, Barroso cites a moment during

testimony when the display of pictures was near a defendant's head. But again, the trial

court made an accommodation that counsel accepted:

      MR. JURSEK:      And then the only other issue was that when the
                pictures are shown, they are shown directly over top of my
                    client's head, and I think over the course of the trial, that
                    could become an issue that I am concerned about. I mean,
                    just—
      THE COURT:           We are all trying—
      MR. JURSEK:          If he could sit off to the side, perhaps?
      THE COURT:           That's fine. You can have the photos in front of you.
                    We have a lot—we have three defendants here, lots of
                    lawyers. We have interpreters. The Court's doing its utmost
                    to make sure that accommodations are met. I need the
                    cooperation of attorneys and not just complaints, if you will,
                    to make a record.

                           If you have a specific suggestion, I'd certainly
                    welcome it...


      MR. JURSEK:      And my issue is not that we can't see the pictures and
                look at them. It's just every time a piece of evidence is
                shown, it's gonna be right below my client's head, and my
                concern is cumulatively, that can be prejudicial to my client.
      THE COURT:       If it's a problem, you can bring it up one at a time ...
      MR. JURSEK:      Thank you, Your Honor. I think we are missing each
                other on the point of my objection.


                                                24
No. 73638-8-1/25


       THE COURT:        What is the point of your objection?
       MR. JURSEK:       It was that there is going to be a photo of evidence
                 shown, and every picture that's shown on the screen, my
                 client's head is going to be immediately in plain view of that.
       THE COURT:            I did miss that.
       MR. JURSEK:           I believe over time, that's going to be prejudicial.
       THE COURT:            Maybe he can slide three feet this way.
       MR. JURSEK:           That would be great. That would solve the problems.
       THE COURT:        I don't have any problems with that. I told counsel,
                 you can stand whenever you want. I don't want your clients
                 to, but if they can slide one way or another.
       MR. JURSEK:       Is it okay if he is there and I am here?
       THE OFFICER:      (Witness nods head affirmatively)
       THE COURT:        Thank you, Mr. Jursek. Did you have anything
                 further?
       MR. JURSEK:      That was it. Your Honor. Thank vou.

RP (Jan. 13, 2014) at 357-61 (emphasis added). During Snezhana Stetsyuk's

testimony, defense counsel noted they could not see how the witness was describing a

certain event, so the prosecutor asked the witness to describe the same event again for

that attorney's benefit:

       [STATE:]       What was their [the defendants'] positioning in relationship to
                      each other?
       [STETSYUK:]      They are in a—walking in a line, so all four.
       [STATE:]   So single file?
       [STETSYUK:]       Uh-huh. (Witness answers affirmatively.) Not like,
                  you know, one, two, three. They were just in a line like one,
                      two, three, four.
       [STATE:]       Okay. So four walking together?
       [STETSYUK:]           Yeah.
       [STATE:]       Okay. Now, you've indicated one of the people you did
                      recognize—

       MR. PEALE:        Excuse me, Your Honor. I can see shoulders moving,
                  and I understand there was a description being made, but I
                  couldn't see it, and words haven't explained that to me, so.
       [STATE:]   I can rephrase.
       MR. PEALE:        So I don't know what the witness is saying by
                  description.
       THE COURT:        Okay. Go ahead.




                                                 25
No. 73638-8-1/26


      [STATE:]   For the benefit of Mr. Perez Barroso's lawyer, can you go
                 ahead and describe for us again the manner in which the
                 four individuals were walking toward the apartment?
      [STETSYUK:]       They were walking like this as in one person, two
                 person, three person, four person, all together.

RP (Jan. 13, 2014) at 380-81 (emphasis added). Barroso's attorney did not object

following the State's accommodation. During DeAngelo White's testimony, defense

counsel stated they could not see where the State was directing a laser pointer. Again,

the trial court instructed the State to re-demonstrate and defense counsel did not object

after this accommodation:


      [STATE]:      So you are saying that the incident outside was happening
                    more over in this direction?
      [WHITE:]          Yeah, like right over that way, next to the boat.
      MR. PEALE:        I am sorry, Your Honor. I didn't see where counsel—
      THE COURT:        Move it again, please.
      [STATE:]   As I am showing with the laser pointer, was the incident
                 outside over toward this direction in relationship to the front
                    door?
      [WHITE:]      Yes.

RP (Jan. 14, 2014) at 492-93. A few moments later, counsel stated he could not see

what White was drawing:

      [STATE:]      Now, would you also show us and use something other than
                    an "X," a different letter or a circle, for where the—what was
                  happening between Dijon and Mr. Fernandez Medina?
       MR. PEALE:       Excuse me. May I interrupt, Your Honor? Can we
                    have the witness stand to the side?

      THE COURT:       Let's let him draw first, then you can get as close as
                you'd like, Mr. Peale. It's probably easier for him to stand
                    where he's able to utilize his hand and draw first. I will let
                 him draw, and then if you are confused as to where he's
                 drawn, please clarify.
      MR. PEALE:        I am not confused. My client needs to be able to see.
      THE COURT:       Absolutely. He doesn't need to see it exactly at the
                 moment that it's drawn. Stand wherever you'd like as you
                 draw what counsel has asked you about.



                                                26
No. 73638-8-1/27


RP (Jan. 14, 2014) at 498. Defense counsel later objected to demonstrative testimony

and the court stated he could clarify during cross-examination:

      MR. PEALE:        Your Honor, I will object to the testimony as it was
                entirely blocked from view of my client. No drawing was
                 made. It was demonstrated by movement of an object in a
                 hand while speaking. We couldn't see where he was talking
                about. My client was blocked by the witness's back.
      THE COURT:        Certainly. And, counsel, on cross-examination, you
                can use a pointer to clarify anything if you don't believe Mr.
                Schact [the prosecutor] has clarified it through questioning.

RP (Jan. 14, 2014) at 501-02. A few minutes later, the witness continued to use hand

motions to describe testimony and the trial court repeatedly reminded the witness to

testify such that the jury and counsel could see what he was doing:

       MR. PEALE:           Your honor, I am gonna object to the demonstrative
                    testimony by the witness when he is blocked from view of
                    the jury. He is making motions, describing behaviors. Jury
                    can't see it because he's behind the pillar.
      THE COURT:       Okay. Try not to use your hands. Stay where you are
                at. Keep your voice up. I know it's a lot to ask of you. We
                 have got a lot of people in a fairly small area, so try to keep
                    your voice up and just answer the question.
      [WHITE:]      Okay. I got it.

      [WHITE:]          So then I don't know. Like, I wasn't—like, I could not
                 see past the wall, so like, I didn't know if like he had opened
                 the door or what. I mean, you could hear—
      THE COURT:        Let me just stop you just a second. If you just want
                 him to point, I don't mind him being where he is. But if you
                 are asking him to explain things, I really prefer the jury be
                 able to see him, so you are gonna have to pick and choose
                 which of the two you want him to do; point from there, or if
                 you'd like him to testify, I'd like you to have him so he can be
                 seen by all the jurors.
      [STATE:]   One final question using the laser pointer... what I'd like
                 you to do with the laser pointer is show where his feet were.
      [WHITE:]   Okay. All right.. . Fernandez was standing right in front of
                 him. There was a guy off to this side, a guy off to this side ...
      THE COURT:        Hold on a second. Counsel, as I mentioned, if you
                 want him to point to something, fine where he is at. If not,
                 we will have him where the jury can see him.


                                               27
No. 73638-8-1/28


       [STATE:]      Okay.

RP (Jan. 14, 2014) at 519-21. The record does not support Barroso's argument. These

few interruptions during a crowded but otherwise normal trial do not amount to a

violation of the confrontation clause. The record shows that, occasionally, counsel

and/or defendants had difficulty viewing specific testimony from the witnesses—for

example, pointing to diagrams or using hand movements to demonstrate certain events.

But the record also shows the trial court's efforts to accommodate all of these

interruptions.6 Defense counsel appears to have accepted these accommodations in all

cases, either explicitly on the record or implicitly by declining to object following the

accommodation. Further, as the trial court noted, if defense counsel had an issue with

any of the witness' testimony, he was free to clarify that testimony during cross-

examination. Therefore, defense counsel was free to ask any witness to repeat earlier

testimony—for instance, pointing to a diagram or drawing—in a way that his client could

see it. "p"]he Confrontation Clause is generally satisfied when the defense is given a

full and fair opportunity to probe and expose [testimonial] infirmities through cross-

examination        " Delaware v. Fensterer. 474 U.S. 15, 22, 106 S. Ct. 292, 88 L Ed.

2d. 15 (1985). To the extent that any of these incidents infringed on Barroso's

confrontation clause rights, those infringements were minimal, and the right to face-to-

face confrontation is not absolute. Maryland. 497 U.S. at 837. Any interpretation of the

confrontation clause must be "sensitive to its purposes and sensitive to the necessities




       6 The record shows the trial court's extraordinary efforts to accommodate all the
participants in this physically cramped courtroom.
                                                 28
No. 73638-8-1/29


of trial and the adversary process." Maryland. 497 U.S. at 849 (quoting Roberts. 448

U.S. at 63).

       The underlying purpose of the face-to-face requirement illustrates that there was

no violation here. Face-to-face confrontation is preferred because it enhances the

accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an

Innocent person. See Coy, 487 U.S. at 1019-20 ("It is always more difficult to tell a lie

about a person to his face than behind his back.") The Supreme Court has also "noted

the strong symbolic purpose served by requiring adverse witnesses at trial to testify in

the accused's presence." Maryland. 497 U.S. at 847: see also Cov, 487 U.S. at 1017

("[T]here is something deep in human nature that regards face-to-face confrontation

between accused and accuser as 'essential to a fair trial in a criminal prosecution.'"

(quoting Pointer v. Texas. 380 U.S. 400, 404, 85 S. Ct. 1065, 13 L Ed. 2d 923 (1965)).

        Barroso achieved a face-to-face confrontation with the adverse witnesses in this

case within the meaning of the confrontation clause. The record shows that throughout

 nearly the entire trial the defendants had a full view of all the witnesses. It was only

during these few instances when witnesses were asked to move to different parts of the

courtroom, draw a diagram, point to something on a picture, or use their hands that the

defendants had difficulty perceiving all the nuances of the witnesses' testimony.

 Barroso fails to explain how these few instances of logistical difficulty—all of which were

 immediately remedied by the trial court—in any way prevented a face-to-face

confrontation of the witnesses such that those witnesses were somehow more likely to

 provide false testimony. Further, as mentioned above, Barroso had an opportunity to




                                                  29
No. 73638-8-1/30


explore any witness' testimonial deficiencies with cross-examination. Under these

circumstances, Barroso cannot show that his confrontation clause rights were violated.

       Barroso fails to cite any authority analogous to this case. Barroso primarily relies

on Coy. In that case, the Supreme Court reversed the defendant's conviction when the

trial court implemented a screen that was "specifically designed to enable the

complaining witnesses to avoid viewing appellant as they gave their testimony." Cov.

487 U.S. at 1020. The court recognized that circumstances in Cov were extreme, and

that other exceptions might exist to the requirement that a defendant be allowed to

confront adverse witnesses face-to-face. Cov. 487 U.S. at 1021 ("[T]he irreducible

literal meaning of the Clause: 'a right to meet face to face all those who appear and give

evidence at trial.... We leave for another day, however, the question whether any

exceptions exist." (quoting California v. Green. 399 U.S. 149, 175, 90 S. Ct. 1930, 26 L.

Ed. 2d. 489 (1970)). The court clearly answered this question in Maryland: "The

Confrontation Clause does not guarantee criminal defendants an absolute right to a

fact-to-face meeting with the witnesses against them at trial." Maryland. 497 U.S. at

836-37. Rather, this right must be sensitive to the necessities of the trial process. One

of those necessities is adjusting to the physical layout of the courtroom. See State v.

Dye. 178 Wn.2d 541, 309 P.3d 1192 (2013) (a trial court has broad discretion to make a

variety decisions regarding the conduct of trial).

       Even if these interruptions amounted to a violation of the confrontation clause,

that violation was harmless error. See State v. Watt. 160 Wn.2d 626, 635, 160 P.3d

640 (2007) ("we hold that confrontation violations ... are subject to a harmless error

analysis."). A constitutional error is harmless if the court is convinced that beyond a



                                                 30
No. 73638-8-1/31


reasonable doubt that any reasonable jury would have reached the same result in the

absence of the error. Watt. 160 Wn.2d at 635. Had the interruptions Barroso cites not

occurred in this case, any reasonably jury would have reached the same result. As

explained above, these interruptions posed minimal interference with the trial as a

whole. The trial court accommodated each interruption. The record shows that,

generally, these interruptions mainly affected defense counsel and not the jury. Given

the overwhelming evidence in this case, any reasonable jury would have reached the

same result absent the errors.


       Reasonable Doubt Instruction

       Both defendants argue that the trial court erred when it declined to use defense

counsel's proposed reasonable doubt instruction. The State offered, and the court

accepted, a reasonable doubt instruction providing: "If, from such consideration [of the

evidence or lack of evidence], you have an abiding belief in the truth of the charge, you

are satisfied beyond a reasonable doubt." Clerk's Papers (CP) at 114. Defense

counsel proposed, and the trial court rejected, a similar instruction without the "belief in

the truth" language. RP (Jan. 22, 2014) at 1285. Citing State v. Emery. 174 Wn.2d

741, 278 P.3d 653 (2012), the defendants argue that by "equating proof beyond a

reasonable doubt with a 'belief in the truth of the charge,' the jury instruction blurs the

critical role of the jury." Br. of Appellant Fernandez Medina at 25.

       Washington courts have repeatedly rejected this argument. State v. Federov.

181 Wn. App. 187, 200, 324 P.3d 784 (2014) (Finding no error where the trial court

used the same "reasonable belief" instruction used here—WPIC 4.01—stating that "the

'belief in the truth' phrase accurately informs the jury its 'job is to determine whether the



                                                 31
No. 73638-8-1/32


State has proved the charged offenses beyond a reasonable doubt.'" (quoting Emery.

174 Wn.2d at 760)). The defendants nevertheless ask us to reconsider Federov. We

decline to do so. Federov controls here. The trial court did not abuse its discretion

when it denied defense counsel's proposed reasonable doubt instruction.

          Statement of Additional Grounds

          Fernandez Medina provides five additional grounds for reversal under RAP

10.10. They are meritless.

          Motion to Sever


          First, Fernandez Medina argues the trial court abused its discretion by declining

to sever the trials. The trial court acted within its discretion when it declined to sever the

trials.


          A trial court has broad discretion to grant or deny a motion to sever and its

decision will be reversed only upon a showing of manifest abuse of discretion. State v.

Kalakoskv. 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). Fernandez Medina fails to

articulate any reasons why the court abused its discretion here. Instead, he contends

that the court "never fully ruled on this important issue." Statement of Additional

Grounds (SAG) at 2. Fernandez Medina misreads the record. Fernandez Medina cites

a passage during motions in limine where the trial court asked the State if it wanted to

redact prejudicial statements from the codefendants or sever the trials. Fernandez

Medina claims this passage shows the trial court "flip flopp[ed]." SAG at 2. The record

clearly shows the trial court's concern over the admission of codefendant statements in

violation of Bruton v. United States. 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476

(1968). The trial court gave the State a clear choice: redact the offending statements or



                                                   32
No. 73638-8-1/33


sever the trials. RP (Jan. 8, 2014) at 220 ("So, unless the State is prepared to proceed

with eliminating any reference at all to any other people in any of the statements of each

defendant,... I am gonna sever the trials in this case ...."). The State elected to

redact the prejudicial statements rather than face a severed trial.

       Introduction of Barroso's Statement

       Fernandez Medina argues the trial court erred by introducing Barroso's

statement. Fernandez Medina misreads the record. He cites the same passage from

motions in limine where the trial court threatened to sever the trials if the State did not

redact prejudicial codefendant statements. Fernandez Medina claims this passage

shows that the State planned to "skirt" the trial court's order to redact the statements.

SAG at 4. This passage shows the exact opposite; the trial court specifically instructed

the State to redact the prejudicial statements or face a severed trial. Fernandez Medina

argues Barroso's statement was admitted and read to the jury, but he does not cite

anywhere in the record to support this assertion. This court is not obligated to search

the record in support of claims made in a defendant/appellant's statement of additional

grounds for review. State v. O'Connor. 155 Wn. App. 282, 229 P.3d 880 (2010).

       Expert Witness

       Fernandez Medina argues Detective Brian Johnson was never properly disclosed

or deposed as an expert witness. Like his previous arguments, Fernandez Medina fails

to cite anything in the record supporting this assertion. See O'Connor. 155 Wn. App. at

282. Further, the record shows that the trial court properly allowed Detective Johnson's

testimony. See RP (Jan. 15, 2014) at 907 ("I don't see anywhere here that there is any

surprise evidence to you, any discovery violation. It's clear what the officer is going to



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testify to. The report has been provided and submitted. Pictures have been provided.

So your objection is overruled. State may proceed with this evidence."). Nothing in the

record suggests the State failed to comply with discovery rules regarding expert

witnesses. See CrR 4.7(a)(1); State v. Hutchinson. 135 Wn.2d 863, 876-77, 959 P.2d

1061 (1998). Therefore, the trial court did not abuse its discretion when it allowed

Detective Johnson to testify. See Hutchinson. 135 Wn.2d at 882 (Evidentiary rulings

reviewed for abuse of discretion).

       Detective Johnson's Testimony

       Fernandez Medina claims that Detective Johnson's testimony included

"generalizations, and impermissible inferences, and questionable opinions [that] are not

supported by the factual evidence." SAG at 7. But Fernandez Medina fails to cite to

anything in the record demonstrating any improper testimony. He only cites to a portion

of the record where his attorney argues that Detective Johnson should not be allowed to

testify. As discussed above, the trial court did not abuse its discretion when it allowed

Detective Johnson to testify.

       In Court Identification

       Finally, Fernandez Medina claims that "there were several [misidentifications] by

the witnesses as to who was who, and as to who did what." SAG at 8. Specifically, he

claims that Jeffery Taylor's in court identification was prejudicial, citing State v.

Sanchez. 171 Wn. App. 518, 288 P.3d 351 (2012), and State v. Salinas. 169 Wn. App.

210, 279 P.3d 917 (2012). Fernandez Medina's argument relies on inapposite

authority. Defense counsel had a full and fair opportunity to cross-examine Taylor and

other witnesses about their identification testimony. Fernandez Medina's only citation to



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the record is a portion of Jeffery Taylor's testimony where he identifies the defendants in

court and then testifies that he saw them at the scene of the crime. This is not an

impermissible identification statement within the meaning of the case law Fernandez

Medina cites.


                                         CONCLUSION

       For the foregoing reasons, we affirm.




                                                            tyjd
WE CONCUR:




                                                             Cm^-




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