FILED
APRIL 25, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30212-1-111 ) Respondent, ) ) v. ) ) JACK MAURICE HEWSON, Jr., ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Jack Maurice Hewson Jr. appeals his convictions for first degree
burglary and conspiracy to commit first degree robbery. He first contends the trial court
violated his confrontation right or abused its discretion when limiting his cross-
examination of a State witness in an attempt to show bias based on State leniency and
gang membership. Second, he contends the trial court erred in rejecting his Brady1
based new trial motion. In his pro se statement of additional grounds for review (SAG),
Mr. Hewson raises concerns related to the State's precharging delay, the victim's
photomontage identification of him, the trial court's ER 609 rulings, and the prosecutor's
trial conduct. We reject Mr. Hewson's confrontation and Brady contentions. We find no
merit in Mr. Hewson's SAG concerns. Accordingly, we affirm.
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). No. 30212-1-111 State v. Hewson
OVERVIEW
This case is about a first degree burglary and conspiracy to commit first degree
robbery occurring at Jamie Robinson's Spokane house in 2007. Robert Delao, Andrew
Oakes, and Joseph Hoofman (co-participants) admitted their crime participation.
Although Mr. Delao and Mr. Oakes were federally prosecuted for unrelated or
unspecified crimes, they apparently received State concessions not to prosecute for
federal sentence benefits. Similarly, the State prosecuted Mr. Hoofman solely for
driving while license suspended. The co-participants incriminated Mr. Hewson in court
as the fourth crime participant. Ms. Robinson initially identified Mr. Hewson from a
photomontage and later identified him in court. Mr. Hewson denied his participation,
asserted an alibi, argued Ms. Robinson misidentified him, and raised a credibility-bias
defense in an attempt to undermine his co-participants' incriminating testimony.
The trial court allowed extensive evidence of the co-participants' criminal
backgrounds and the non-prosecution benefits the State offered them but limited
evidence of particular sentencing consequences that might flow from Mr. Hewson's
prosecution. The court allowed extensive evidence of the long, close friendship
between Mr. Delao and Mr. Oakes and their business and personal animus towards Mr.
Hewson, limiting solely evidence of their gang membership. The trial court allowed
evidence showing Mr. Hewson's refusal to make bail for his long-time friend, Mr.
Hoofman, which Mr. Hewson argued caused Mr. Hoofman's animus toward him. From
the amply developed record, Mr. Hewson argued or received an adequate opportunity
to argue his defense theories, including those the court partly limited. The jury rejected
No. 30212-1-111 State v. Hewson
his defenses and found Mr. Hewson guilty as charged of first degree burglary and
conspiracy to commit first degree robbery, along with several firearm enhancements.
FACTS
On November 21, 2007, Mr. Delao and Mr. Oakes approached Ms. Robinson's
house wearing masks and armed with guns, kicked open an exterior door and
attempted to enter an interior kitchen door, but left when Ms. Robinson confronted them.
Soon, an unmasked male, later identified as Mr. Hewson, appeared behind a window in
the kitchen door and pointed a gun at Ms. Robinson just six inches away. Mr. Hewson
left when he saw Ms. Robinson placing a telephone call. Mr. Hootman related he drove
a getaway car that Mr. Hewson provided him and that turned out to be owned by Denise
LaCount. Ms. LaCount later became Mr. Hewson's alibi witness. Ms. LaCount testified
Mr. Hoofman took her car without permission while Mr. Hewson stayed with her at the
house. Mr. Delao, Mr. Oakes, and Mr. Hoofman each identified Mr. Hewson in court as
the unmasked male who pointed the gun at Ms. Robinson.
Police showed Ms. Robinson three photomontages, on November 28,2007,
January 25, 2008, and February 12, 2008 respectively. She identified no perpetrators
on the first two occasions. On the third occasion, she immediately began shaking and
identified Mr. Hewson as a perpetrator with 90 to 97 percent certainty. Mr. Hewson did
not object to this evidence. Ms. Robinson identified Mr. Hewson in court as the
unmasked male who pointed the gun at her. Mr. Hewson attempted to show Ms.
Robinson previously saw him when he visited her home to meet her house guest,
James Crabtree, causing a misidentification; Mr. Crabtree contradicted this hypothesis.
On April 12, 2010, the State charged Mr. Hewson as a principal or accomplice to
first degree burglary and conspiracy to commit first degree robbery. Mr. Delao
cooperated with state authorities but Mr. Hewson did not. The State eventually alleged
six firearm enhancements against Mr. Hewson. Apparently, Mr. Delao and Mr. Oakes
were prosecuted federally but not in State court. We assume for disclJssion, without
specific supporting evidence in our record that the State agreed not to prosecute them
in exchange for their testimony against Mr. Hewson. 2 Similarly, we assume Mr.
Hoofman, the getaway car driver, received a state benefit when the State prosecuted
him solely for driving while license suspended.
Mr. Hewson unsuccessfully moved in limine to impeach Ms. Robinson with
evidence she was convicted of two forgeries and a theft between 1994 and 1998, and of
drug possession in 2008. 3 The State argued Ms. Robinson's prior forgery and theft
convictions were stale because she had been released from confinement on them more
than 10 years before testifying and her prior drug possession conviction was not
probative of her truthfulness. The trial judge reasoned, "I am not satisfied ... that this
issue is more probative than unfairly prejudicial. It does have the aspect of inferring
propensity. It doesn't necessarily go to credibility. There may be, however, some other
bases to consider this ....,,- Report of Proceedings (RP) (May 9,2011) at 17-18.
The State successfully moved in limine to exclude evidence of Mr. Delao's gang
membership as either irrelevant or unfairly prejudicial. Mr. Hewson partly argued the
2 Both parties confir'11ed this assumption at oral argument. 3 Our record does not contain exact dates or other details regarding these prior convictions. We note it here for our ER 609 analysis.
gang evidence was relevant to show Mr. Delao's motive to falsely implicate him,
suggesting Mr. Delao was protecting a fellow gang member. The court partly reasoned
"just the fact of gang membership alone is not sufficient" to "provide the necessary
probative value for veracity, reliability of testimony." RP (May 9,2011) at 38. At trial, in
the context of business animus, the court revisited the topic. Mr. Hewson wanted to
show Mr. Delao's gang activities, especially drug money laundering, motivated him to
fire Mr. Hewson from a business in which Mr. Delao, Mr. Oakes, and Mr. Hewson
participated. Allowing the business animus evidence but excluding the underlying gang
motivation evidence, the court explained: "It [g]rafts 403 protection against undue
confusion or distraction by the jury, but it satisfies, again, to a certain extent a
reasonable basis for the type of bias that the Defense is trying to move forward with so I
would permit that." RP at 164. The court additionally allowed bias evidence based on
Mr. Delao's and Mr. Oakes's attempt to get Mr. Hewson's probation revoked.
At the May 2011 trial, Mr. Delao testified for the State. On extensive cross-
examination, Mr. Delao related his understanding of the State's concession not to
prosecute and the federal concessions in his 70- to 87-month federal sentence. When
Mr. Hewson began asking about disparities in Mr. Delao's sentence and what he might
have received with state firearm enhancements, the trial court, sua sponte, called a
sidebar and ordered defense counsel not to tie specific maximum sentence lengths to
specific state charges or firearm enhancements while cross-examining Mr. Delao. The
trial court expressed concern doing so would confuse issues by suggesting the specific
maximum sentence lengths and enhancements that might apply to Mr. Hewson, and
thus undermine the jury instruction to ignore any punishment that may follow conviction.
Mr. Hewson objected to any limitation on his inquiry into the full extent of the State's
leniency toward Mr. Delao.
Mr. Oakes, who was then a federal inmate, testified for the State by deposition.
On extensive cross-examination, Mr. Oakes admitted he previously testified at Mr.
Delao's federal bail hearing -regarding Mr. Delao's gang membership. The State did not
object. Later, in Mr. Hewson's closing argument to the jury, he argued without objection
Mr. Delao was his "good friend, old gang member, we go way back." RP at 484. 4 But
when Mr. Hewson continued referring to gang membership, the State objected. The
court ruled: "The issue is in front of the jury; however, if that was a product of error and
that fact should not have been provided, continued reference in the argument would be
improper. Certainly, ... you have referenced that fact now before the jury in your
closing. I won't for the record strike that, but 1am going to request you move forward
further." RP at 487.
As Mr. Hewson's alibi witness, Ms. LaCount related that on the night of the
burglary, she went to bed with Mr. Hewson around 10:00 p.m. and awoke around 1:00
a.m., noticing the television on in the living room. She said she did not check on Mr. . Hoofman, who had been sleeping on the couch, but by the next morning, he had left
with her car. The prosecutor then impeached Ms. LaCount with her pretrial interview
without objection from Mr. Hewson. In closing and rebuttal arguments, the prosecutor
------------------. 4 Unless otherwise noted, all citations to the Report of Proceedings are to the transcript of the jury trial held between May 16 and 24, 2011.
told the jury the evidence showed Ms. LaCount changed her trial testimony,
undermining Mr. Hewson's alibi defense strategy. Mr. Hewson did not object.
After the jury found Mr. Hewson guilty, Mr. Crabtree signed a statement saying,
in his May 5, 2011 pretrial interview, he asked the prosecutor to "put in a good word for
him" on his pending drug possession charge and the prosecutor "said he would."
Clerk's Papers (CP) at 100, 102. Later, Mr. Crabtree filed an affidavit clarifying he
sought the prosecutor's good word on his pending drug possession charge as
"consideration for [his] help" in testifying against Mr. Hewson, and "was given the
impression" the prosecutor agreed. CP at 101.
Mr. Hewson moved for a new trial. First, he argued the trial court impermissibly
undercut his defense theory by precluding him from cross-examining Mr. Delao
regarding his gang membership. Second, Mr. Hewson argued the State violated Brady
by failing to disclose evidence of the alleged agreement between Mr. Crabtree and the
prosecutor. The prosecutor and detective filed declarations contradicting Mr. Crabtree's
assertions. The trial court denied the motion orally and in written findings and
conclusions. First, the trial court partly reasoned evidence of Mr. Delao's gang
membership was substantially more unfairly prejudicial than probative and was highly
inflammatory and cumUlative of other evidence, considering Mr. Hewson sought it solely
to show Mr. Delao's business animus against him. Second, the court partly reasoned
Mr. Crabtree's request for the prosecutor's good word on his pending drug possession
charge was neither favorable to the defense nor material to guilt or punishment because
Mr. Hewson failed to prove the prosecutor promised Mr. Crabtree a benefit in exchange
for his testimony. Mr. Hewson appealed.
ANALYSIS
A. Cross-Examination Limitations
The issue is whether the trial court violated Mr. Hewson's federal confrontation
right or abused its discretion in limiting cross-examination on, first, the full extent of
leniency the State provided Mr. Delao in exchange for his cooperation, and second, Mr.
Delao's gang membership. We review alleged confrontation clause violations de novo.
State v. Jasper, 174 Wn.2d 96, 108,271 P.3d 876 (2012). We review limitations on
cross-examination for abuse of discretion. 5 State v. Fisher, 165 Wn.2d 727,752,202
P.3d 937 (2009).
The federal confrontation clause provides a criminal defendant the right to
confront and cross-examine adverse witnesses. U.S. CONST. amend. VI; Douglas v.
Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). This guarantees
an adequate opportunity for effective cross-examination, including impeachment with
minimally relevant6 bias evidence? Davis v. Alaska, 415 U.S. 308, 316-18, 94 S. Ct.
5 A trial court abuses its discretion if its decision is "manifestly unreasonable," based on "untenable grounds," or made for "untenable reasons." State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971); see also State v. Rohrich, 149 Wn.2d 647,654,71 P.3d 638 (2003) (UA decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. A decision is manifestly unreasonable if the court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take, and arrives at a decision outside the range of acceptable choices." (citations omitted) (internal quotation marks omitted)). 6 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401.
No. 30212-1-111
State v. Hewson
1105,39 L. Ed. 2d 347 (1974); State v. Hudlow, 99Wn.2d 1, 15-16,659 P.2d 514
(1983). Under the federal Confrontation Clause, a trial court "retain[s] wide latitude ...
to impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness' safety,
or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall,
475 U.S. 673, 679,106 S. Ct. 1431,89 L. Ed. 2d 674 (1986). Thus, a trial court may
exercise its sound discretion to preclude cross-examination that merely argues,
speculates on, or vaguely suggests bias. State v. Darden, 145 Wn.2d 612, 621, 41
P.3d 1189 (2002) (citing State v. Jones, 67 Wn.2d 506, 512,408 P.2d 247 (1965)).
First, Mr. Hewson contends the trial court erred by limiting cross-examination on
the full extent of leniency the State provided Mr. Delao in exchange for his cooperation.
Mr. Hewson argues he could have shown Mr. Delao escaped six state firearm
enhancements, eliminating up to 24 years' confinement, not merely 5 years as he
vaguely suggested to the jury. But the record shows the State did not charge Mr. Delao
with any crime connected to these events. The jury clearly heard Mr. Delao received a
safe harbor from all state prosecution, not just the sentence enhancements. Thus, any
potential conviction or punishment was purely speculative, as was any bias arising from
avoiding state firearm enhancements. See Darden, 145 Wn.2d at 621. A reasonable
jury would not have received a "significantly different impression of [Mr. Delao's]
7 "Bias is ... the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness'self-interest." United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984).
9 No. 30212-1-111 State v. Hewson
credibility" if the trial court had permitted Mr. Hewson's proposed cross-examination.
Davis, 415 U.S. at 318. Additionally, the court expressed a reasonable concern that
tying specific maximum sentence lengths to specific state charges or firearm
enhancements while cross-examining Mr. Delao would confuse issues by suggesting
they might apply to Mr. Hewson, and thus undermine the jury instruction to ignore any
punishment that may follow conviction. Considering all, we conclude a tenable basis
exists for the trial court's balanced ruling. See Van Arsdall, 475 U.S. at 679. Therefore,
the court did not violate Mr. Hewson's federal confrontation right or abuse its discretion
by limiting cross-examination on the full extent of leniency the State provided Mr. Delao
in exchange for his cooperation.
Second, Mr. Hewson contends the trial court erred in limiting cross-examination
on Mr. Delao's gang membership and denying a new trial on that basis. Mr. Hewson
argues this curtailed his ability to show Mr. Delao's bias against him. During pretrial
hearings, Mr. Hewson argued his proposed cross-examination would furnish a sufficient
foundation for the jury to reasonably infer Mr. Delao's gang membership motivated him
to falsely implicate Mr. Hewson and conceal the fourth burglary participant's true
identity. Balancing the evidence's probative value against its potential for unfair
prejudice. the trial court allowed the business animus motivation evidence while
seeming to overlook or undervalue the gang membership motivation eVidence. 8 Even
8 We have reviewed.Mr. Hewson's contention that this functions as a "finding" and lacks substantial evidence. See State v. York, 41 Wn. App. 538, 544, 704 P.2d 1252 (1985) (stating this court reviews challenged findings offact entered upon a motion for a new trial to determine whether substantial evidence supports them); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (defining substantial evidence as "a 10
so, the evidence had low if any probative value because Mr. Hewson did not specify
what testimony he could elicit to link Mr. Delao's gang membership with the existence of
or motivation to protect an absent accomplice. Thus, any bias arising from gang
membership was purely speculative. See Darden, 145 Wn.2d at 621. Again, a
reasonable jury would not have received a "significantly different impression of [Mr.
Delao's] credibility" if the trial court had permitted Mr. Hewson's proposed cross
examination. Davis, 415 U.S. at 318. Additionally, the court expressed reasonable
concerns about injecting confusing, collateral gang membership issues into the trial.
Again, we conclude a tenable basis exists for the trial court's balanced ruling. See Van
Arsdal/, 475 U.S. at 679.
Mr. Hewson relies on United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L.
Ed. 2d 450 (1984) and State v. Craven, 67 Wn. App. 921, 841 P:2d 774 (1992) to urge
a contrary conclusion. In Abel, the defendant, a defense witness, and a prosecution
witness were each alleged members of the Aryan Brotherhood, "a secret prison sect
sworn to perjury and self-protection." 469 U.S. at 54. The district court admitted the
prosecution witness's testimony that the defendant and the defense witness were
"members of a secret prison organization whose tenets required its members to deny its
existence and 'lie, cheat, steal [and] kill' to protect each other." Id. (alteration in
original). The United States Supreme Court affirmed, noting the jury could have
sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding"). While we agree with Mr. Hewson that the trial court seemed to misapprehend the purpose he intended for his proposed cross-examination, we note this makes no difference in our analysis because he nonetheless failed to specify what
11 No. 30212-1-111 State v. Hewson
reasonably inferred bias solely from evidence of common membership in a gang whose
tenets mandated perjury and self-protection. Id. at 52-54, 55.
In Craven, the defendant and several defense witnesses were alleged members
of the Black Gang Disciples, a gang that wore black clothing. 67 Wn. App. at 924-25.
The trial court permitted the prosecution to cross-examine them "regarding their clothing
and possible gang membership." Id. at 928. We held the trial court did not abuse its
discretion because the cross-examination was relevant to show the defense witnesses
held bias toward the defendant. Id.
Our case is unlike Abel and Craven. Those cases involved a witness's possible
bias toward the defendant stemming from their common gang membership, but this
case involves Mr. Delao's possible bias against Mr. Hewson stemming from Mr. Delao's
individual gang membership. Common gang membership itself might motivate a
witness to slant testimony in favor of a party. Thus, a jury might reasonably inferbias
from common gang membership alone. By contrast, nothing inherent in individual gang
membership itself motivates a witness to slant testimony against a party. More
evidence, such as indicators of a rivalry, is required for a jury to reasonably infer bias
from individual gang membership. And, as noted, Mr. Hewson did not specify to the trial
court what testimony he could elicit to link the mere fact of Mr. Delao's gang
membership with the existence of an absent accomplice, let alone provide a coherent
motivation to falsely implicate Mr. Hewson. Considering all, we conclude the trial court
did not violate Mr. Hewson's federal confrontation right or abuse its discretion by limiting
testimony he could elicit to link Mr. Delao's gang membership with the existence of or
12 No. 30212-1-111 State v. Hewson
cross-examination on Mr. Delao's gang membership.
In sum, the trial court. allowed Mr. Hewson extensive cross-examination
consistent with confrontation principles, enabling him to develop the necessary facts to
argue his defense theories. Mr. Hewson was able to, and did, argue his co-participants'
bias against him. The court's cross-examination limitations are supported by tenable
grounds. Thus, we concludt3 the court did not reversibly err in its rulings or violate
confrontation principles. Although Mr. Hewson essentially argues he should have
received unfettered cross-examination, we are confident he received a fair, albeit
imperfect trial. See State v. Ingle, 64 Wn.2d 491,499,392 P.2d 442 (1964). Because
we conclude the court committed no error, we do not discuss any prejudice connected
with its limitations on cross-examination.
B. Brady Violation
The issue is whether the trial court erred in its new trial motion ruling by, first,
finding the prosecutor never made the alleged promise to Mr. Crabtree, and second,
concluding the State did not violate Brady by withholding impeachment evidence
regarding the alleged agreement.
We review challenged findings of fact entered upon a motion for a new trial to
determine whether substantial evidence supports them. State v. York, 41 Wn. App.
538,544,704 P.2d 1252 (1985). Substantial evidence is "a sufficient quantity of
evidence in the record to persuade a fair-minded, rational person of the truth of the
finding." State v. Hill, 123 Wn.2d 641, 644,870 P.2d 313 (1994). A finding offact is
motivation to protect an absent accomplice.
13 No. 30212-1-111
binding on appeal if supported by substantial evidence. Id.
The trial court found while "[Mr.] Crabtree believed that the prosecutor was going
to 'put in a good word for him'" on his pending drug possession charge, "the State
proffered that no such promise was made." CP at 127. Mr. Hewson contends the latter
finding lacks substantial evidence. His contention is untenable because it debases the
prosecutor's and detective's declarations to the contrary, and discounts the trial court's
credibility determinations. Though neither declaration expressly denied Mr. Crabtree's
claims, they nonetheless presented a sufficient quantity of evidence to persuade a fair-
minded, rational person that the prosecutor never promised Mr. Crabtree a benefit in
exchange for his testimony. Therefore, substantial evidence supports the challenged
finding and it is binding on appeal.
We review alleged Brady violations de novo. State v. Mullen, 171 Wn.2d 881,
893-94,259 P.3d 158 (2011). Under Brady, the State violates a criminal defendant's
due process right if (1) it suppresses evidence that is (2) favorable to the defense and
(3) material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963); see Stricklerv. Greene, 527 U.S. 263, 281-82,119 S. Ct.
1936,144 L. Ed. 2d 286 (1999).
The State suppresses evidence by faWng to disclose it, regardless of whether the
defense requests it. Kyles v. Whitley, 514 U.S. 419, 437-38,115 S. Ct. 1555, 131 L.
Ed. 2d 490 (1995); United States v. Agurs, 427 U.S. 97,107,96 S. Ct. 2392, 49 L. Ed.
2d 342 (1976). But if the defense reasonably could have discovered the evidence
through due diligence, the State's failure to disclose it does not constitute suppression.
Mullen, 171 Wn.2d at 896 (citing State v. Lord, 161 Wn.2d 276,293, 165 P.3d 1251
(2007)). Evidence is favorable to the defense if it is eXCUlpatory or impeaching. United
States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375,87 L. Ed. 2d 481 (1985).
Evidence is material to guilt or punishment "'if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.'" Kyles, 514 U.S. at 433-34 (quoting Bagley, 473 U.S. at 682). A
reasonable probability of a different result exists where the State's nondisclosure
"'undermines confidence in the outcome of the trial.'" Id. (quoting Bagley, 473 U.S. at
678). Materiality requires evaluating the State's nondisclosure "in the context of the
entirerecord." Agurs, 427 U.S. at 112. Thus, impeachment evidence "may not be
material if the ... other evidence is strong enough to sustain confidence in the verdict."
Smith v. Cain, _ U.S. _ , 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012).
Here, the State failed to disclose evidence that Mr. Crabtree requested the
prosecutor's good word on his pending drug charge. Further, while it is arguable that
Mr. Hewson could have reasonably discovered this evidence through due diligence, we
proceed for discussion as if he could not. Though the prosecutor never promised him a
benefit in exchange for his testimony, Mr. Crabtree nonetheless expected to receive
"consideration for [his] help." CP at 101. While Mr. Crabtree's expectation was
unfounded, Mr. Hewson still could have exploited it on cross-examination had the State
disclosed evidence that Mr. Crabtree requested the prosecutor's good word on his
pending drug charge. See Giglio v. United States, 405 U.S. 150, 155, 92 S. Ct. 763, 31
L. Ed. 2d 104 (1972) ("[E]vidence of any understanding or agreement [between the
government and a prosecution witness] as to a future prosecution would be relevant to
[the witness's] credibility and the jury [i]s entitled to know of it."). Even so, other trial
evidence was strong enough to sustain our confidence in the verdict had the jury
discredited Mr. Crabtree.
Mr. Crabtree related Mr. Hewson contacted him five to seven times when he
lived at Ms. Robinson's house. Each time, Mr. Hewson appeared outside the house
and Mr. Crabtree left with him to acquire or consume cocaine. Ms. Robinson ordered
Mr. Crabtree to never bring former prison inmates or drug users home, but Mr. Hewson
was both. Mr. Crabtree claimed he never allowed Mr. Hewson to visit inside the house,
though Mr. Hewson once stepped about a foot inside the door and once followed Mr.
Crabtree to another door. Mr. Crabtree recalled Ms. Robinson was present inside the
house some of the times Mr. Hewson visited, but he could not say whether Ms.
Robinson saw Mr. Hewson on any of those occasions. Mr. Crabtree maintained he
never introduced Mr. Hewson to Ms. Robinson.
Independent evidence would have proven these facts even if the jury had
discredited Mr. Crabtree. For example, Mr. Hewson adopted Mr. Crabtree's testimony
regarding their drug transactions outside Ms. Robinson's house, stating, "I am not going
to deny anything that ..lim Crabtree testified to because it is true. Yes, I did have some
issues so, yes, that is true." RP at 414. Additionally, Mr. Hewson's former community
corrections officer testified he learned Mr. Hewson was using drugs seven months
before the burglary. While Mr. Hewson claimed Ms. Robinson saw him twice and knew
who he was, Ms. Robinson's testimony contradicted this.
16 No. 30212-1-111 State v. Hewson
Considering all, the State's nondisclosure does not undermine our confidence in
the verdict, and Mr. Hewson has not raised a reasonable probability that, had the State
disclosed the impeachment evidence, his trial would have produced a different result.
Therefore, we conclude the impeachment evidence was not material to guilt or
punishment. It follows that the State did not violate Brady and the trial court ruled
properly upon Mr. Hewson's new trial motion.
C. Pro Se Statement of Additional Grounds
First, Mr. Hewson contends the State's 29-month charging delay was part of a
deliberate strategy to pressure him and his co-participants into cooperating with
investigators, violating due process.
We review precharging delay claims de novo. State v. Oppelt, 172 Wn.2d 285,
290,257 P.3d 653 (2011). The State violates a criminal defendant's due process right if
(1) it delays in filing charges; (2) the defendant shows the delay caused him or her
actual prejudice; and (3) balancing the degree of prejudice against the State's reasons
for the delay, the court concludes permitting prosecution would offend "those
fundamental conceptions of justice which lie at the base of our civil and political
institutions, and which define the community's sense of fair play and decency." United
States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044,52 L. Ed. 2d 752 (1977) (citations
and internal quotation marks omitted); see Oppelt, 172 Wn.2d at 295 & n.8 (clarifying
the three-part test for precharging delay claims applied here). While statutes of
limitations "provide 'the primary guarantee, against bringing overly stale criminal
charges,'" they are not definitive for due process purposes. Lovasco, 431 U.S. at 789
(quoting United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468
(1971». Actual prejudice occurs if "'the asserted error had practical and identifiable
consequences in the triaL'" State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)
(quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007». Generally, the
State need not file charges as soon as it has probable cause to prosecute but may
continue investigating until it is satisfied it can prove guilt beyond a reasonable doubt.
Lovasco, 431 U.S. at 790-91.
Here, the alleged crimes occurred on November 21,2007, the State apparently
completed its investigative report five months later on April 9, 2008, and the State
charged Mr. Hewson after a further 24-month delay on April 12, 2010. He seems to
complain solely that the State's continued investigation yielded too much incriminating
evidence. Nothing suggests the State delayed as part of a deliberate strategy to
pressure him and his co-participants into cooperating with investigators. Because he
identifies no practical and identifiable consequences in the trial, he fails to show the
delay caused him actual prejudice. Therefore, the delay did not violate due process.
Second, Mr. Hewson contends the trial court erred in admitting Ms. Robinson's
photomontage identification because the procedure was unfair to him and caused her to
misidentify him. Though he did not object to this evidence at trial, we assume, without
deciding, he may raise this alleged due process violation for the first time on appeal.
See RAP 2.5(a)(3); State v. Collins, 152 Wn. App. 429, 434, 216 P.3d 463 (2009).
,We review alleged constitutional violations de novo. State v. Siers, 174 Wn.2d
269,273-74,274 P.3d 358 (2012). Admitting a witness's out-of-court identification
violates a criminal defendant's due process right if the State procured it by arranging
circumstances that (1) were "impermissibly suggestive" and (2) created "a substantial
likelihood of irreparable misidentification." State v. Vickers, 148 Wn.2d 91, 118,59 P.3d
58 (2002); see Stovallv. Denno, 388 U.S. 293,302,87 S. Ct. 1967, 18 L. Ed. 2d 1199
(1967). A photomontage is 'impermissibly suggestive if it "directs undue attention to a
particular photo." State v. Eacret, 94 Wn. App. 282, 283, 971 P.2d 109 (1999).
Because "reliability is the linchpin" of the analysis, a substantial likelihood of irreparable
misidentification exists solely where, under the totality of circumstances, "the corrupting
effect of the suggestive identification" outweighs "indicators of [the witness's] ability to
make an accurate identification." Manson v. Brathwaite, 432 U.S. 98,110,113-14,116,
97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Such indicators include
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200,93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Here, police showed Ms. Robinson three photomontages, on November 28,
2007, January 25,2008, and February 12, 2008 respectively. At the first and second
photomontages, Ms. Robinson had no physical reaction and identified no perpetrators
but, at the third photomontage, she immediately began shaking and identified Mr.
Hewson as a perpetrator with 90 to 97 percent certainty. Because he do~s not identify
how these circumstances directed undue attention to his photograph, he fails to show
the photomontage identification was impermissibly suggestive. Moreover, Mr. Hewson
No. 30212-1-11\ State v. Hewson
does not contest Ms. Robinson's in court identification of him. Therefore, the trial court
did not violate due process by admitting the photomontage identification.
Third, Mr. Hewson contends the trial court erred in precluding him from
impeaching Ms. Robinson with evidence of her prior forgery, theft, and drug possession
convictions without making "specific findings on record as to the particular facts and
circumstances it considered~" SAG at 19.
Where, as here, the trial court interpreted the evidentiary rule correctly, we
review a decision to admit or exclude evidence under it for abuse of discretion. State v.
DeVincentis, 150 Wn.2d 11, 17,74 P.3d 119 (2003); see also State v. Rivers, 129
Wn.2d 697,704-05,921 P.2d 495 (1996). A trial court abuses its discretion if it fails to
comply with an evidentiary rule's requirements. State v. Neal, 144 Wn.2d 600, 609, 30
P.3d 1255 (2001).
If a witness was previously convicted of a crime "involv[ing] dishonesty or false
statement," the prior conviction is automatically admissible to impeach the witness's
credibility. ER 609(a}(2}. If a witness was previously convicted of some other crime,
punishable by more than one year's imprisonment, the prior conviction is admissible to
impeach the witness's credibility solely if "the court determines that the probative value
of admitting this evidence ootweighs the prejudice to the party against whom the
evidence is offered." ER 609(a)(1). But in either case, if the witness was released from
confinement on the conviction more than 10 years before testifying, the conviction is
inadmissible "unless the court determines, in the interests of justice, that the probative
value of the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect." ER 609(b).
Mr. Hewson sought to impeach Ms. Robinson with evidence she was convicted
of two forgeries and a theft between 1994 and 1998, and a drug possession in 2008.
The trial judge refused each attempt simultaneously, stating, "I am not satisfied ... that
this issue is more probative than unfairly prejudicial. It does have the aspect of inferring
propensity. It doesn't necessarily go to credibility. There may be, however, some other
bases to consider this ...." RP (May 9, 2011) at 17-18.
Ms. Robinson's prior forgery and theft convictions involved dishonesty within the
meaning of ER 609(a)(2). See State v. Ray, 116 Wn.2d 531, 545-46, 806 P.2d 1220
(1991); State v. Jones, 101 Wn.2d 113, 123,677 P.2d 131 (1984), overruled on other
grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), adhered to on reeon.,
113 Wn.2d 520, 782 P.2d 1013,787 P.2d 906 (1989). Nonetheless, their admissibility
was governed by ER 609(b) because Ms. Robinson was released from confinement on
them more than 10 years before testifying.
Under ER 609(b), Ms. Robinson's stale forgery and theft convictions were
presumed inadmissible unless the trial court determined, in the interests of justice, their
probative value supported by specific facts and circumstances substantially outweighed
their prejudicial effect. A trial court must articulate its ER 609(b) balancing analysis on
the record. State v. Russell, 104 Wn. App. 422, 433,16 P.3d 664 (2001). This requires
the trial court to '''make specific findings on the record as to the particular facts and
circumstances it has considered.'" Id. at 436-37 (emphasis omitted) (quoting S. REP.
No. 93-1277, at 15 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7061-62) (construing
ER 609(b) the same as Fed. R. Evid. 609(b)).
Ms. Robinson's prior _drug possession conviction did not involve dishonesty within
the meaning of ER 609(a)(2). See State v. Hardy, 133 Wn.2d 701,707,946 P.2d 1175
(1997). Further, it was punishable by more than one year's imprisonment. See RCW
69.50.4013(2); RCW 9A.20.021(1)(c). Thus, its admissibility was governed by ER
609(a)(1 ).
Under ER 609(a)(1), Ms. Robinson's prior drug possession conviction was
admissible solely if the trial court determined its probative value outweighed its
prejudicial effect. A witness's prior conviction is probative, under ER 609(a)(1), if it is
relevant to the witness's truthfulness. Hardy, 133 Wn.2d at 707-08. Whether a prior
conviction is probative of truthfulness depends on factors including "(1) the length of the
[witness's] criminal record; (2) remoteness of the prior conviction; (3) nature of the prior
crime; (4) the age and circumstances of the [witness]; (5) centrality of the credibility
issue; and (6) the impeachment value of the prior crime."g State v. Alexis, 95 Wn.2d 15,
19,621 P.2d 1269 (1980); see also Jones, 101 Wn.2d at 121-22. A trial court must
articulate its ER 609{a)(1) balancing analysis on the record. Jones, 101 Wn.2d at 122.
This requires the trial court to "state, for the record, the factors which favor admission or
exclusion." Id.
9 We have altered these factors to apply to Ms. Robinson because, while they were originally designed to apply solely when the witness was a criminal defendant, an amendment extended ER 609(a)(1)'s balancing analysis to all witnesses in all matters. ER 609(a)(1), 110 Wn.2d 1128 (1988); ER 609(a)(1) cmt., 119 Wn.2d 1205 (1992); ROBERT H. ARONSON, THE LAW OF EVIDENCE IN WASHINGTON § 609.04[3][b], at 609-15 to 16 (4th ed. 2011); 5A KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAw AND PRACTICE § 609.7, at 490 (5th ed. 2007). 22 No. 30212-1-111 State v. Hewson
Assuming the trial court was, as Mr. Hewson suggests, insufficiently specific
regarding its evidentiary ruling, any error is harmless. The court's failure to fully
articulate its ER 609 balancing analysis on the record is harmless if, "from the record as
a whole," this court can det~rmine the ER 609 ruling was correct. State v. Bond, 52 Wn.
App. 326, 333, 759 P.2d 1220 (1988). But even an erroneous ER 609 ruling is
harmless '''unless, within reasonable probabilities, had the error not occurred, the
outcome of the trial would have been materially affected.'" Ray, 116 Wn.2d at 546
(quoting State v. Smith, 106Wn.2d 772, 780, 725 P.2d 951 (1986».
At the pretrial motion in limine hearing, Mr. Hewson argued Ms. Robinson's stale
forgery and theft convictions "are relevant because they do show that the witness at that
time ... had apparently no difficulties in making these types of false statements." RP
(May 9,2011) at 14-15. But he presented no particular facts or circumstances showing
why these stale convictions remained probative of Ms. Robinson'S truthfulness at trial,
let alone how such probative value substantially outweighed the prejudicial effect.
Thus, he could not overcome ER 609(b)'s presumption of inadmissibility. See State v.
Jones, 117Wn. App. 221, 233, 70 P.3d 171 (2003). Further, Mr. Hewson argued Ms.
Robinson's prior drug possession conviction "goes to her credibility insofar as she is
someone who is impaired by drugs." RP (May 9,2011) at 16. But he reviewed no
factors showing why the conviction was probative of Ms. Robinson's truthfulness, let
alone how such probative value outweighed the prejudicial effect. Thus, he could not
overcome ER 609(a)(1)'s presumption of inadmissibility. See State v. Calegar, 133
Wn.2d 718,722,727,947 P.2d 235 (1997). Considering all, the trial court's ER 609
ruling was correct. Any error was harmless.
Finally, Mr. Hewson contends the prosecutor committed misconduct denying him
a fair trial by asking his alibi witness false or misleading questions on cross-examination
and referring to matters outside the record in final arguments.
Proving prosecutorial misconduct requires the defendant to establish "the
prosecutor's conduct was both improper and prejudicial." State v. Emery, 174 Wn.2d
741,756,278 P.3d 653 (2012). Conduct referencing matters outside the record is
improper. State v. Davis, 175 Wn.2d 287, 330, 290 P.3d 43 (2012). Conduct is
prejudicial if it has a substantial likelihood of affecting the jury's verdict. Id. However, if
the defendant does not object to the prosecutor's conduct at trial, the defendant waives
any error claim arising from it, unless it was "so flagrant and ill intentioned that it evinces
an enduring and resulting pr~judice that could not have been neutralized by an
admonition to the jury." State v. Hoffman, 116 Wn.2d 51,93,804 P.2d 577 (1991).
The prosecutor was entitled to ask Ms. LaCount about her alleged pretrial
interview statements on cross-examination because they qualified as prior inconsistent
statements. See ER 613(a); State v. Newbern, 95 Wn. App. 277, 292, 975 P.2d 1041
(1999) (stating that, under ER 613{a), "a witness's prior statement is admissible for
impeachment purposes if it is inconsistent with the witness's trial testimony"). And, the
prosecutor laid a proper foundation for introducing extrinsic evidence of the statements
because he gave Ms. LaCount an opportunity to explain or deny them on cross-
examination. See ER 613(b); State v. Johnson, 90 Wn. App. 54, 70, 950 P.2d 981
(1998) (stating that, to lay a proper foundation under ER 613(b), "it is sufficient for the
examiner to give the declarant an opportunity to explain or deny the statement, either on
cross-examination or after the introduction of extrinsic evidence"}.
Additionally, the prosecutor's remarks in closing and rebuttal arguments were
proper because they were within the wide latitude of reasonable inferences he was
entitled to draw from the evidence. See State v. Gentry, 125 Wn.2d 570, 641,888 P.2d
1105 (1995) (stating a pros~cutor possesses wide latitude in drawing reasonable
inferences from the evidence during closing and rebuttal arguments). Even so, Mr.
Hewson's failure to object to the prosecutor's conduct at trial waived any error claim
arising from it because Mr. Hewson has not shown it was so flagrant and ill intentioned
that its resulting prejudice could not be cured by a proper jury instruction.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
Kulik, J. I