STATE v. In re the Personal Restraint Petition of John Kenneth Stein a/k/a Jack Stein, Petitioner. (2007)

¶ 1 In 1989, a jury acquitted John Kenneth Stein of first degree murder charges and convicted him of three attempted murders and burglary.   We dismissed his appeal for failure to perfect the record, but in 1996, the federal district court reinstated the appeal in part because officers of the court contributed to this failure.   We then reversed Stein's convictions and remanded for a new trial;  the Supreme Court affirmed our decision.   Before the second trial, the trial court conducted an extensive hearing on what remedy Stein was entitled to for the State-caused delay.   The trial court denied Stein's request to dismiss the charges, concluding that the delay did not prejudice Stein.   After the retrial in 2004, a jury again convicted Stein of the attempted murders and burglary.

¶ 2 Stein now argues that the trial court should have dismissed the charges against him due to governmental misconduct, contending that it should have considered governmental misconduct beyond that found by the federal court and that it should have found this misconduct prejudicial.

¶ 3 Stein also contends that the trial court (1) should not have admitted evidence of his role in the murder for which he was acquitted;  (2) abused its discretion in admitting (a) a judge's testimony about cases over which he presided, (b) co-conspirator hearsay statements, and (c) testimony of two attorneys about privileged communications;  (3) violated his right to confront adverse witnesses by admitting prior testimony and a tape recording made during a deposition;  (4) misadvised the jury by referring to several instructions in response to a jury question during deliberations;  (5) wrongly imposed consecutive sentences for the attempted murder convictions;  and (6) vindictively increased his sentence after his successful appeal.

¶ 4 Stein presents numerous other issues in a statement of additional grounds for review (SAG) ¹ and a personal restraint petition (PRP), which we consolidated with his direct appeal.   Finding no error, we affirm Stein's convictions and deny his personal restraint petition.

FACTS

¶ 5 In 1987, the State charged John Kenneth Stein, also known as Jack Stein, with conspiracy to commit first degree murder, felony first degree murder, aggravated first degree murder, three counts of attempted first degree murder, and first degree burglary.

¶ 6 The charges related to Stein's attempts to remove people he believed were conspiring to deprive him of substantial assets he stood to inherit from his father, Nicholas Stein.   One of Stein's targets was Thelma Lund, Nicholas's long-term companion and caregiver.   Another was Ned Hall, a lawyer who was Nicholas's court-appointed guardian.   Hall had filed a successful lawsuit to set aside, on the basis of undue influence, a transaction in which Nicholas assigned Stein a real estate sales contract.   And Lund testified on behalf of the guardianship and adversely to Stein in that litigation.²

¶ 7 Michael Norberg, Stein's stepson, helped Stein by recruiting others to kill Lund and Hall, promising them money or property in exchange for the killings.   Roy Stradley testified that he discussed the murders with Stein and that Stein said he was financing the killings, but Stradley declined to participate.   Edward Denney, who also did not participate, testified that Norberg told him Stein would pay for the killings.³  Richard Bailey testified that Norberg told him the money for the killings would come from Stein.   Bailey and Gordon Smith eventually agreed to participate in the killings.

¶ 8 In April 1987, Norberg and Bailey murdered Lund in her home.   In June 1987, the men attempted three times to murder Hall.   The first time, Bailey and Smith took homemade napalm to Hall's house, intending to burn the house down;  they fled when Smith said someone had seen them.   The second time, Bailey and Smith went to Hall's house to lure him out of the house so they could shoot him, but Hall refused to come out.   During the final attempt, Norberg, Smith, Bailey, and Bailey's brother went to Hall's house during the night and Smith entered through a bathroom window.   Smith fired a shot at Hall and shut Hall's thumb in a door, cutting off the tip.⁴

¶ 9 In 1989, a jury acquitted Stein of the charges related to Lund's murder, but it convicted him of the three counts of attempted first degree murder and one count of first degree burglary related to the Hall incidents.   Stein appealed, but his appellate attorney failed to perfect the record, and we dismissed the appeal in 1991.

¶ 10 In 1996, the federal district court ordered his appeal reinstated, ruling that his appellate counsel was ineffective and that the court reporter, county clerk, and prosecutor, as court officers, contributed to the delay.   We reversed Stein's convictions because of error in the accomplice instructions.   State v. Stein (Stein I), 94 Wash.App. 616, 617, 972 P.2d 505 (1999) (published in part), aff'd, 144 Wash.2d 236, 27 P.3d 184 (2001).   The Washington Supreme Court affirmed.  State v. Stein (Stein II), 144 Wash.2d 236, 238, 27 P.3d 184 (2001).

¶ 11 In 2003, the trial court, after a hearing under CrR 8.3, declined to dismiss the charges against Stein, ruling that the delay did not prejudice Stein's right to a fair trial on remand.⁵  A jury again convicted Stein of burglary and three counts of attempted murder.   The trial court then sentenced Stein to three terms of 220 months, to run consecutively, for the three attempted murders, and 36 months for the burglary, to run concurrently, for a total sentence of 660 months.

ANALYSIS

I. Dismissal of Charges under CrR 8.3(b)

¶ 12 Stein first contends that the trial court should have dismissed the charges against him under CrR 8.3(b) because of governmental misconduct.

 ¶ 13 CrR 8.3(b) provides:

The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.

Stein bears the burden of proving both misconduct and prejudice by a preponderance of the evidence.  State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) (citing State v. Michielli, 132 Wash.2d 229, 239-40, 937 P.2d 587 (1997)).   Dismissal is an extraordinary remedy.  Rohrich, 149 Wash.2d at 653, 71 P.3d 638 (citing State v. Baker, 78 Wash.2d 327, 332-33, 474 P.2d 254 (1970)).

 ¶ 14 We review a trial court's decision on a motion to dismiss under CrR 8.3(b) for an abuse of discretion.  Rohrich, 149 Wash.2d at 654, 71 P.3d 638.   A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.  State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997).

A. CrR 8.3(b) Proceedings

¶ 15 The Supreme Court concluded its opinion in Stein II by stating:  “We remand for a new trial, leaving to the sound discretion of the trial court the question of whether further relief is appropriate under CrR 8.3, or other theories raised in Stein's cross petition.”  Stein II, 144 Wash.2d at 248, 27 P.3d 184.

¶ 16 The trial court held a CrR 8.3 hearing from September 2002 to April 2003, with continuances.   Numerous witnesses testified, including Stein's former attorneys from his first criminal trial and various civil matters;  judges who presided over Stein's criminal trial and civil matters;  employees of the Clark County clerk's office;  and members of Stein's family.   Professor John Strait testified on Stein's behalf as an expert on professional responsibility, and doctors Stan Abrams and Caleb Burns gave expert opinions on Stein's memory functions.   Judge Roger Bennett, currently on the Clark County bench but the lead prosecutor in the original case, testified about his role as prosecutor and his involvement in the case after the Supreme Court remanded the case for a new trial.

¶ 17 The trial court ruled that it was bound by the federal district court's order that Stein's original appeal was dismissed and delayed due in part to governmental misconduct.   The court also ruled that it could not consider issues that we resolved against Stein, including his claims that he was denied counsel of choice and a speedy trial.   Thus, the court considered only whether Stein had shown that the governmental misconduct prejudiced him.

¶ 18 The trial court found that Stein had not shown that the delay had impaired his memory of the events surrounding the charges or caused his financial loss;  that transcripts from the previous trial could be used to refresh witnesses' memories, to impeach witnesses, or as a substitute for live testimony;  and that a witness's decision to change his testimony was irrelevant to the issue of actual prejudice.   The court also found that Judge Bennett's activities after the Supreme Court's remand did not constitute governmental misconduct or prejudice Stein.   Finally, in denying Stein's motion to dismiss, the court concluded that the mere passage of time was insufficient to show actual prejudice.

B. Collateral Estoppel and Law of the Case

¶ 19 Stein maintains that the trial court erroneously applied the doctrines of collateral estoppel and law of the case to bar his claims of right to counsel of choice and right to a speedy trial as additional reasons to dismiss the charges against him.   He argues that our previous decision was not a final judgment on the merits because the Supreme Court's decision superseded it when that court granted review.   Thus, he maintains, the trial court was not barred from reconsidering issues we had previously decided.

 ¶ 20 Collateral estoppel precludes relitigation of an issue that was raised and resolved in an earlier action.  State v. Harrison, 148 Wash.2d 550, 560-61, 61 P.3d 1104 (2003).   Collateral estoppel applies where (1) the issue decided in the earlier adjudication is identical to the current issue, (2) the earlier adjudication ended with a final judgment on the merits, (3) the party to be estopped was a party to or in privity with a party to the earlier adjudication, and (4) barring relitigation of the issue will not work an injustice.  Harrison, 148 Wash.2d at 561, 61 P.3d 1104 (citing Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wash.2d 255, 262-63, 956 P.2d 312 (1998)).

¶ 21 The federal district court ruled that governmental misconduct delayed Stein's appeal.   And in holding that Stein was estopped from challenging the federal court's remedy, we explained that the federal court judgment satisfied all the collateral estoppel elements.  Stein I, noted at 94 Wash.App. 616, slip op. at 35-36.   Thus, the trial court properly considered itself bound by the federal court's finding of governmental misconduct in the delay of Stein's appeal.

 ¶ 22 The trial court also ruled that it was bound by our decision on those issues we had considered.   Under the law of the case doctrine, an appellate court's decision is binding on further proceedings in the trial court on remand.  State v. Strauss, 119 Wash.2d 401, 412-13, 832 P.2d 78 (1992).   This doctrine promotes “the finality and efficiency of the judicial process by ‘protecting against the agitation of settled issues.’ ”  Harrison, 148 Wash.2d at 562, 61 P.3d 1104 (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)).

¶ 23 In our first opinion, we considered and rejected Stein's claims that he was denied counsel of choice and a speedy trial.  Stein I, noted at 94 Wash.App. 616, slip op. 17-18, 30-32. The Supreme Court did not alter our decision on either issue.

 ¶ 24 Yet Stein maintains that the Supreme Court granted review on the counsel of choice and speedy trial issues and then remanded for consideration of these issues.   The Supreme Court, however, did not consider these issues in its opinion;  it decided only the accomplice instruction issue.  Stein II, 144 Wash.2d at 238, 27 P.3d 184.   An appellate court's decision supersedes a lower court decision only on the issues the appellate court decides.   Strauss, 119 Wash.2d at 412, 832 P.2d 78.   Thus, our opinion remains the law of this case on these issues and the trial court did not abuse its discretion by refusing to consider Stein's claims of denial of the right to counsel of choice and to a speedy trial.

C. Prejudice from Appellate Delay

1. Inherent Prejudice

 ¶ 25 Stein next contends that prejudice inheres in his delayed appeal, mandating dismissal of his convictions.⁶  He argues that, under the plain language of Article 1, sections 10 and 22 of the Washington Constitution,⁷ unnecessary delay in a criminal prosecution is a constitutional violation.   Analogizing to the speedy trial context, Stein reasons that his delayed appeal warrants dismissal of all charges regardless of the strength of the State's case.

¶ 26 But our Supreme Court has held that a defendant seeking dismissal under CrR 8.3 must show actual prejudice resulting from a delay in filing charges;  the mere possibility of prejudice is insufficient.  Rohrich, 149 Wash.2d at 657-58, 71 P.3d 638.   The Rohrich court found it “incongruous” that a defendant could obtain dismissal of a charge under CrR 8.3 without showing actual prejudice resulting from governmental misconduct but must show a “substantial likelihood” of prejudice when seeking reversal for prosecutorial misconduct.  Rohrich, 149 Wash.2d at 657-58, 71 P.3d 638.   That dismissal under CrR 8.3 is an extraordinary remedy also counsels against allowing dismissal based on speculative prejudice.  Rohrich, 149 Wash.2d at 658, 71 P.3d 638.

¶ 27 Here, the governmental misconduct resulted in delay of Stein's appeal, not delay in charging him, but the Rohrich court's rationale equally applies.   See Rohrich, 149 Wash.2d at 657-58, 71 P.3d 638.   Thus, the trial court properly considered whether Stein had shown actual prejudice attributable to the delay.

2. Actual Prejudice

¶ 28 Stein contends that his own and other witnesses' dimmed memories prejudiced his right to a fair trial.   He also argues that he suffered prejudice from the delay because Bailey, who testified for the State in Stein's first trial but then testified on behalf of Stein in the civil wrongful death and criminal profiteering action against him,⁸ had changed his testimony back to the State's side by the time of the retrial.

 ¶ 29 In State v. Haga, Division One of this court twice declined to dismiss murder charges filed five years after the deaths occurred, holding that the defendant did not show actual prejudice even though he showed that witnesses' memories had dimmed and several witnesses and certain pieces of evidence were no longer available.  State v. Haga (Haga I), 8 Wash.App. 481, 486-89, 507 P.2d 159 (1973), appeal after remand at 13 Wash.App. 630, 536 P.2d 648 (1975).   The court noted that the trial court is in the best position to evaluate whether the delay affected the defendant's ability to defend against the charges.  State v. Haga (Haga II), 13 Wash.App. 630, 634, 536 P.2d 648 (1975).   And the possibility of prejudicial delay lessens in the retrial context where the defendant can use trial transcripts to refresh witnesses' memories and can introduce former testimony in the event witnesses become unavailable.  United States v. Mohawk, 20 F.3d 1480, 1488 (9th Cir.1994).

 ¶ 30 The trial court found that Stein presented no direct evidence that any witness suffered from a dissipated memory or that Stein was prejudiced by witnesses' dimmed memories.   It also found that Stein's own memory function had not deteriorated since 1989.⁹  The trial court noted that the remedy for any prejudice resulting from unavailability of witnesses would be to exclude their prior testimony, not to dismiss the charges.   The trial court also refused to speculate on what Bailey's testimony would have been had the case gone to retrial six years earlier than it did.

¶ 31 Here, although many witnesses had faded memories of the events surrounding the charges, Stein had transcripts from his previous trial to refresh their memories or impeach them.   And the passage of time could, and undeniably did, weaken the State's case as much as it did Stein's.   See Haga II, 13 Wash.App. at 634, 536 P.2d 648.   For example, the changes in Bailey's testimony made him a far less credible witness for the State.   Moreover, the court ultimately excluded the prior testimony of Dr. Peter Lusky, who was deceased at the time of the retrial and who had testified in the wrongful death and criminal profiteering action that Stein had asked him if he knew where to hire a hit man.

¶ 32 As the Rohrich court noted, neither the trial court nor an appellate court can screen the credibility of witnesses with potentially faded memories;  that remains an issue for the trier of fact.  Rohrich, 149 Wash.2d at 659, 71 P.3d 638.   The same holds true for witnesses who have damaged their credibility by changing their testimony.   The trial court considered the effects of the intervening years on Stein's ability to defend himself against the charges and did not abuse its discretion in ruling that actual prejudice did not exist.

D. Prejudice From Judge Bennett's Actions

 ¶ 33 Stein also argues that governmental misconduct after the Supreme Court's remand for retrial prejudiced him and thus requires dismissal of the charges.   He maintains that Judge Bennett participated in the State's conference with the “key prosecution witness,” Bailey, and that in doing so, Judge Bennett violated the Canons of Judicial Conduct;  moreover, according to Stein, the State's attorneys violated the Rules of Professional Conduct by asking Judge Bennett to help.   Br. of Appellant at 21-22.   Stein contends that this conduct prejudiced him because Bailey was reluctant to testify and may not have done so had Judge Bennett not intervened.

¶ 34 Judge Bennett testified that he participated in a strategy meeting with members of the Clark County prosecutor's office after the Supreme Court remanded the case for retrial.   He also attended a meeting with Bailey and the assistant attorney general who represented the State when the Clark County prosecutor recused his office.   He went to that meeting as an “observer” because he was familiar with Bailey's previous testimony and he could tell the State's attorney if Bailey was providing false or incomplete information.

¶ 35 Although a Clark County detective testified that Judge Bennett went to the meeting to “get [Bailey] back on board,” Judge Bennett testified that he did not tell Bailey how to testify, other than truthfully, or offer him any inducements to testify.   5 Report of Proceedings (RP) at 765.   Bailey testified that both Judge Bennett and the State's attorney told him he could be jailed if he did not testify.   Bailey had also previously sought favors from Judge Bennett, although Judge Bennett did not do any favors for him.¹⁰

¶ 36 Stein's expert in professional responsibility, Professor John Strait, opined that, while Judge Bennett's activities in advising the prosecutor's office on strategy were ethical, he violated the Canons of Judicial Conduct by using his status as a judge to benefit others when he participated in the State's meeting with Bailey.   In addition, Strait opined that the State's attorneys violated the Rules of Professional Conduct by encouraging Judge Bennett to violate his ethical requirements.

¶ 37 The trial court found that Judge Bennett's actions did not amount to governmental misconduct and did not prejudice the defense.

¶ 38 Regardless of whether Judge Bennett's and the State's actions rose to the level of governmental misconduct, Stein must show that they prejudiced him.   Rohrich, 149 Wash.2d at 653, 71 P.3d 638.   Stein's speculation that Bailey would not have testified but for Judge Bennett's urging is unfounded, given that the State could compel Bailey to testify with a subpoena.   And Bailey testified that his original testimony against Stein was truthful and the later testimony in Stein's favor was untruthful.   The trial court was in the best position to evaluate Bailey's credibility as to the truthfulness of his testimony and the reasons he changed it.  State v. Thomas, 150 Wash.2d 821, 874, 83 P.3d 970 (2004).   And it was within the trial court's discretion to determine that presenting truthful testimony, no matter how obtained, did not prejudice Stein's right to a fair trial.

¶ 39 The trial court did not abuse its discretion when it concluded that any misconduct on the part of Judge Bennett or the State's attorneys on remand did not merit dismissal of the charges against Stein.

II. Collateral Estoppel:  Murder of Thelma Lund

 ¶ 40 Stein argues that the collateral estoppel component of the double jeopardy clause precluded the State from introducing evidence that he was involved in Lund's murder because the first jury acquitted him of all charges related to Lund.¹¹

 ¶ 41 The double jeopardy clauses of the United States and Washington constitutions provide the same protection against multiple punishments for the same offense and subsequent prosecution for the same offense after acquittal or conviction.¹²  State v. Eggleston, 129 Wash.App. 418, 426, 118 P.3d 959 (2005) (quoting State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005)), review granted, 160 Wash.2d 1005, 158 P.3d 615 (2007).   We interpret the state double jeopardy clause in the same manner the United States Supreme Court interprets the federal provision.   Eggleston, 129 Wash.App. at 426, 118 P.3d 959.

A. Relitigation of Ultimate Issue

 ¶ 42 Collateral estoppel is a component of the constitutional protection against double jeopardy.  Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).   Collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated again between the same parties in any future lawsuit.  Ashe, 397 U.S. at 443, 90 S.Ct. 1189.   Thus, where a jury in acquitting the defendant necessarily found that the State failed to prove a fact essential to convict the defendant, the State cannot relitigate the same fact in a later proceeding against the defendant. Eggleston, 129 Wash.App. at 427, 118 P.3d 959.   For example, where the government claimed that the defendant was one of several masked men who robbed one of a group of six men and the jury, in acquitting the defendant, necessarily found that the government failed to prove he was one of the robbers, the government could not retry the defendant for robbing another member of the group.  Ashe, 397 U.S. at 446-47, 90 S.Ct. 1189.

¶ 43 But collateral estoppel does not always bar the later use of evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.   For example, where the defendant was charged with armed bank robbery, the government could use evidence that the defendant, near the time of the robbery, entered a woman's home armed with a pistol similar to the weapon used in the bank robbery even though a jury had acquitted the defendant of the home invasion charges.   See Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).   The court explained that at the second trial, the government did not have to prove beyond a reasonable doubt that the defendant was the man who entered the home;  rather, similar act evidence is admissible under ER 404(b) if the jury can “ ‘reasonably conclude that the act occurred and that the defendant was the actor.’ ”  Dowling, 493 U.S. at 348, 110 S.Ct. 668 (quoting Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)).   The second jury could reasonably find by a preponderance of the evidence that Dowling entered the woman's home even if the first jury had concluded that the government failed to prove beyond a reasonable doubt that he committed the crimes charged in the first trial.¹³  Dowling, 493 U.S. at 348-49, 110 S.Ct. 668.

 ¶ 44 We review the preclusive effect of a jury's verdict de novo.  Eggleston, 129 Wash.App. at 427, 118 P.3d 959.   Here, as in Dowling, “the prior acquittal did not determine an ultimate issue in the present case.”   Dowling, 493 U.S. at 348, 110 S.Ct. 668.   Stein's participation in the Lund murder was not an ultimate issue in the attempted murders of Hall.   The State sought to admit evidence of Lund's murder under ER 404(b) as evidence that Stein was part of an ongoing conspiracy to eliminate people he saw as obstacles to his prospective wealth.   And to get the evidence admitted, the State did not have to prove beyond a reasonable doubt that Stein conspired to murder Lund;  rather, the evidence was admissible if the trial court found by a preponderance of the evidence that Stein had probably conspired to murder Lund.¹⁴ State v. Kilgore, 147 Wash.2d 288, 292, 53 P.3d 974 (2002).   Accordingly, collateral estoppel does not preclude use of the evidence.   Dowling, 493 U.S. at 349, 110 S.Ct. 668.

B. Fundamental Fairness

 ¶ 45 Stein further argues that due process principles of “fundamental fairness” bar the State from using evidence that he participated in the Lund murder.

¶ 46 The Dowling court considered whether the admission of similar act evidence in that case was “so extremely unfair that its admission violates ‘fundamental conceptions of justice’ ” and concluded that it did not.   Dowling, 493 U.S. at 352, 110 S.Ct. 668 (quoting United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)).   The court rejected Dowling's claims that such evidence was unreliable, that it created a risk that the jury would convict him based on inferences it drew from the acquitted conduct, that it could lead to inconsistent jury verdicts, and that it forced him to defend himself against charges of which he had been acquitted.  Dowling, 493 U.S. at 353-54, 110 S.Ct. 668.

 ¶ 47 Stein complains that the trial court did not advise the jury that the first jury acquitted him of Lund's murder.   The Dowling court rested its decision in part on the trial court's instructions informing the jury that the defendant had been acquitted of the crimes charged in the first trial and emphasizing the limited purpose of the testimony.  Dowling, 493 U.S. at 345-46, 353, 110 S.Ct. 668.   Here, the trial court gave a preliminary instruction to the jury not to speculate on the outcome of prior related proceedings.   But the trial court was concerned that if it allowed references to Stein's acquittal of Lund's murder, in fairness it would have to allow the State to bring in the fact that the civil wrongful death/criminal profiteering jury found Stein responsible for Lund's murder.   Ultimately, Stein and the State agreed on the preliminary instruction given.¹⁵  See State v. Henderson, 114 Wash.2d 867, 870, 792 P.2d 514 (1990) (party may not request an instruction and later complain on appeal that it was given).   The trial court did not err in balancing Stein's interest in showing the criminal jury's acquittal against the State's interest in showing the civil jury's finding that he was liable for Lund's death.¹⁶

¶ 48 Stein also maintains that because the jury might infer his guilt on the current charges from evidence he participated in Lund's death, he had to defend himself against the Lund charges a second time.   But the Dowling court rejected the same arguments because the trial court can exclude potentially prejudicial evidence ¹⁷ and because the double jeopardy clause amply protects against the State forcing defendants to relitigate charges they have been acquitted of.  Dowling, 493 U.S. at 354, 110 S.Ct. 668.   The Dowling court declined to extend due process protections beyond those the double jeopardy clause already affords.  Dowling, 493 U.S. at 354, 110 S.Ct. 668.

¶ 49 The trial court did not violate either the double jeopardy clause or due process in admitting evidence relating to Lund's murder.

III. ER 404(b) Evidence of Other Crimes

¶ 50 Stein contends that the trial court erred in admitting evidence of Lund's murder and Stein's plans to kill Judge Lodge and blow up the Clark County courthouse.

¶ 51 ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.   It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

 ¶ 52 When the State seeks to admit evidence of uncharged crimes, the trial court must (1) find by a preponderance of the evidence that the uncharged acts probably occurred, (2) identify the purpose for which the evidence is admitted, (3) find that the evidence is relevant to that purpose, and (4) balance the probative value of the evidence against its prejudicial effect.   Kilgore, 147 Wash.2d at 292, 53 P.3d 974.

 ¶ 53 We review a trial court's decision to admit evidence for an abuse of discretion.  State v. Vreen, 143 Wash.2d 923, 932, 26 P.3d 236 (2001).   A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.  State v. Wade, 138 Wash.2d 460, 464, 979 P.2d 850 (1999) (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 482 P.2d 775 (1971)).

A. Evidence of Lund's Murder

1. Stein's Involvement

 ¶ 54 Stein first asserts that the trial court did not find that he was involved in the Lund murder by a preponderance of the evidence.

¶ 55 The State presented a detailed offer of proof outlining Bailey's and Norberg's guilty pleas implicating Stein and the jury verdict in the wrongful death/criminal profiteering trial finding by a preponderance of the evidence that Stein was responsible for Lund's murder.   Stein argued that he was not involved in the Lund murder.¹⁸  The trial court orally ruled that “I'm satisfied that the allegations regarding the Lund homicide and the description of the [sic] or at least the offer of proof by the State does allow for 404(b) evidence.”   14 RP at 2280.   And it clarified that the wrongful death/criminal profiteering jury found that Stein was responsible for Lund's death by a preponderance of the evidence.¹⁹

 ¶ 56 A trial court may determine that uncharged crimes probably occurred based solely on the State's offer of proof.  Kilgore, 147 Wash.2d at 295, 53 P.3d 974.   And where a trial court rules on the admissibility of ER 404(b) evidence immediately after both parties have argued the matter and the court clearly agrees with one side, an appellate court can excuse the trial court's lack of explicit findings.   See State v. Pirtle, 127 Wash.2d 628, 650, 904 P.2d 245 (1995).   Although the trial court did not explicitly state that it found by a preponderance of the evidence that Stein committed the crimes, it implied as much by referring to the State's offer of proof and the wrongful death/criminal profiteering jury verdict.   This record is sufficient to show that the trial court found by a preponderance of the evidence that Stein was responsible for the Lund murder.

2. Effect of Acquittal

 ¶ 57 Stein next argues that the trial court erred by failing to consider his acquittal of Lund's murder when weighing the probative value of the evidence against its prejudicial effect.   He maintains that the acquittal makes evidence of Lund's murder less probative and increases the prejudicial effect.

 ¶ 58 The trial court must exclude even relevant evidence when the danger of unfair prejudice substantially outweighs its probative value.   ER 403.   To ensure thoughtful consideration and facilitate appellate review of an ER 404(b) ruling, the trial court must make a record of its balancing of the probative value of evidence versus its potential prejudice.  State v. Jackson, 102 Wash.2d 689, 694, 689 P.2d 76 (1984).   A trial court has wide discretion in balancing probative value versus prejudice.  Stenson, 132 Wash.2d at 702, 940 P.2d 1239.

¶ 59 Here, in conducting its balancing analysis, the trial court said:

I'm also satisfied that it is probative, and the probative value is not substantially outweighed by the ․ unfair prejudice.   The reason for that is that, I think that it's a plan, and the intent formed is to do away with those involved in the estate issues, and ․ that ongoing relationship with [Stein's] father.

The matters that go to motive and intent have to be proven by the State, and whatever goes to [Stein's] state of mind at the time is relevant and admissible, it's not unfair to admit those.

․

I would also note that jurors are certainly capable of separating the two.   Your first jury trial, they separated the two, and acquitted on the allegations regarding Ms. Lund, and found you guilty of the ones involving Mr. Hall.   But, so I don't think that there's unfair prejudice․

14 RP at 2281.

¶ 60 Contrary to Stein's assertions, the trial court did consider his acquittal and decided that it did not make the evidence unfairly prejudicial because the jury could separate that crime from the one currently charged.

¶ 61 Moreover, neither of the cases Stein cites addresses the rather unique situation here, where Stein was acquitted of the act in a criminal trial but found liable in a civil trial.   See United States v. Schwab, 886 F.2d 509, 513 (2nd Cir.1989) (finding abuse of discretion where trial court admitted evidence of one charge of which defendant had been acquitted and one charge that had been dismissed);  United States v. Phillips, 401 F.2d 301, 306 (7th Cir.1968) (finding abuse of discretion where trial court did not consider effect of defendant's acquittal when admitting evidence of crime of which defendant had been acquitted).   Although Stein may be correct that the acquittal reduces the probative value of the evidence, the wrongful death/criminal profiteering verdict finding him liable increases it.

¶ 62 The trial court did not abuse its discretion in balancing the probative value of the evidence of Lund's murder against its potential prejudicial effect.

3. Scope of Evidence Admitted

¶ 63 Stein maintains that even if the trial court properly admitted evidence of Lund's murder, it should have limited the nature and amount of evidence admitted.

¶ 64 The State presented the testimony of Lund's daughter, who described Lund's life and family and her own final visit with her mother;  Lund's neighbor, who described how she discovered Lund's body;  a law enforcement officer who responded to the scene of the murder;  the forensic pathologist who performed the autopsy on Lund;  and Bailey, who described how the murder took place.   The trial court also admitted crime scene photos of Lund's house, although none showed the bathroom where Lund was murdered.

 ¶ 65 The relevance of much of this evidence to the attempted murders of Hall is questionable.   But Stein did not object to any of it.   A party must specifically object to evidence presented at trial to preserve the matter for appellate review.  RAP 2.5(a);  State v. Perez-Cervantes, 141 Wash.2d 468, 482, 6 P.3d 1160 (2000).   A party's failure to object can waive an error even where there has been a pretrial ruling on the admissibility of evidence.  State v. Weber, 159 Wash.2d 252, 272, 149 P.3d 646 (2006) (failure to object to presentation of evidence already excluded by pretrial order waives any error unless an objection could not have cured the prejudicial impact of the evidence).   Even though the trial court had already ruled that evidence of Lund's murder was admissible, by failing to object to the scope of the evidence as he does now, Stein deprived the trial court of the opportunity to limit such evidence.   Accordingly, we decline to consider the argument.

B. Evidence of Other Uncharged Crimes

 ¶ 66 Stein contends that the trial court erred in admitting evidence of Stein's threats to kill Judge Lodge and to blow up the Clark County courthouse.

¶ 67 Stein moved to exclude evidence of these alleged crimes.   Finding that the evidence was relevant to Stein's involvement in the overall conspiracy, the trial court denied Stein's motion.   Bailey testified about a plan to blow up the Clark County courthouse and to kill a judge, but he did not name Judge Lodge.

¶ 68 We affirmed the trial court's admission of this evidence in Stein's first trial, finding that, because it was probative of Stein's involvement in the charged conspiracy, its admission did not violate ER 404(b).  Stein I, noted at 94 Wash.App. 616, slip op. 24.   Stein maintains that this decision does not govern the current case because the State did not charge him with any conspiracy here.

¶ 69 But the State may prove prior bad acts by a preponderance of the evidence.  Kilgore, 147 Wash.2d at 292, 53 P.3d 974.   And an acquittal on a conspiracy charge establishes only that the State failed to prove the existence of a conspiracy beyond a reasonable doubt.  State v. Miller, 35 Wash.App. 567, 571-72, 668 P.2d 606 (1983).   The State's theory of the case in Stein's second trial was the same as in the first:  that the attempts on Hall's life were part of a single, overarching conspiracy to remove those Stein believed were standing in the way of his inheritance, including Lund, Hall, and Judge Lodge.   The trial court found that the evidence was relevant to prove Stein's role in this conspiracy and concluded that it was not unfairly prejudicial.   The trial court did not abuse its discretion in admitting Bailey's testimony.

C. Limiting Instruction

 ¶ 70 Stein also argues that the trial court should have instructed the jury to consider the ER 404(b) evidence only for the limited purposes for which it was admitted.   Although Stein would have been entitled to such an instruction had he requested it, ER 105,²⁰ he failed to do so.   A party who fails to ask for a limiting instruction waives any argument on appeal that the trial court should have given the instruction.  State v. Newbern, 95 Wash.App. 277, 295-96, 975 P.2d 1041 (1999) (citing Lockwood v. AC & S, Inc., 109 Wash.2d 235, 255, 744 P.2d 605 (1987)).   Thus, Stein has waived his right to complain about the trial court's omission.

¶ 71 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

IV. Other Evidence Errors

¶ 72 Stein assigns error to several other evidence rulings.   Again, we review a trial court's decision to admit evidence for an abuse of discretion.   Vreen, 143 Wash.2d at 932, 26 P.3d 236.

A. Testimony of Judge Lodge

¶ 73 Stein assigns error to the trial court's admission of testimony by retired Clark County Superior Court Judge Thomas Lodge, arguing that the testimony was unduly prejudicial and unnecessary.

¶ 74 Stein appeared before Judge Lodge in several civil matters, including a personal injury action Stein filed and several related actions concerning a real estate contract that Stein claimed his father had assigned to him.   Hall was the opposing attorney in the real estate contract litigation.   Judge Lodge testified extensively at Stein's first trial, which took place while Judge Lodge was still on the bench.  Stein I, noted at 94 Wash.App. 616, slip op. 20.   He described Stein's demeanor both inside and outside the courtroom, stated that he had heard from others that Stein had conspired to kill him, and gave “detailed explanations of his decisions and various points of law.”  Stein I, noted at 94 Wash.App. 616, slip op. 22.

¶ 75 Stein made this same assignment of error on his first appeal, but we did not rule on it because Stein had not objected to Judge Lodge's testimony either before or during trial, thus waiving any error.  Stein I, noted at 94 Wash.App. 616, slip op 22.   But we cautioned the State and the trial court on remand to “consider carefully the need for and appropriate limits of such testimony.”  Stein I, noted at 94 Wash.App. 616, slip op. 22.

¶ 76 The State argues that Stein again failed to object to Judge Lodge's testimony at trial, thereby waiving any error.   But Stein moved in limine to exclude the testimony of all judges and former judges, specifically referring to our cautions about Judge Lodge's testimony.   The trial court denied the motion.   Where a party moves in limine before trial to exclude evidence and the trial court makes a final ruling on the motion, the party is deemed to have a standing objection to the evidence.  State v. Powell, 126 Wash.2d 244, 256, 893 P.2d 615 (1995).   The trial court did not use any tentative or equivocal language when it denied Stein's motion.   Thus, the court's decision was final and Stein had a standing objection to Judge Lodge's testimony without further objection.  Powell, 126 Wash.2d at 257, 893 P.2d 615.

¶ 77 In Stein's first appeal, we cautioned that while there is no absolute rule barring judges from testifying about collateral matters over which they have presided, courts are concerned that a jury might misunderstand the judge's testimony as an official testimonial and that the testimony would unfairly advance one party's interests.  Stein I, noted at 94 Wash.App. 616, slip op. 21 (citing United States v. Frankenthal, 582 F.2d 1102, 1108 (7th Cir.1978)).   We commented on the State's “deferential” questioning of Judge Lodge and observed that there were other means of presenting much of the evidence.  Stein I, noted at 94 Wash.App. 616, slip op. 22.

¶ 78 At Stein's retrial, the State heeded our cautions and limited Judge Lodge's testimony.   He discussed the circumstances surrounding the contempt order he signed against Stein, but he did not state that Stein was the only person he had ever jailed for contempt.   He explained why he dismissed Stein's personal injury action and the result of an appeal in that case.   He described the real estate contract litigation and some of the rulings he made in those cases.   But he did not give his opinion as to whether Stein should have filed any particular motions.   And he described how Stein would attempt to speak with him outside the courtroom, but he did not testify that he had heard Stein had conspired to kill him.

¶ 79 The State took other steps to limit Judge Lodge's testimony.   When the State published documents to the jury during Judge Lodge's testimony, one of the State's attorneys read them instead of Judge Lodge.21  And the State called a litigation specialist to provide a summary of much of Stein's litigation history, including litigation before Judge Lodge.   The State presented this witness in direct response to our concerns about Judge Lodge's previous testimony.

¶ 80 While the concerns about testimony of judges are important, this case presents unique circumstances.   Judge Lodge was not merely a third party who presided over a collateral proceeding.   He was an intended victim of the same conspiracy that led to the attempts on Hall's life.   And Judge Lodge's rulings against Stein in the real estate contract litigation provided further motive for Stein's animus against Hall.   His testimony was clearly relevant and was not more extensive than necessary.   Stein cannot exclude relevant testimony because of the status of the witness who presents it.   The trial court did not err in permitting Judge Lodge's testimony.

B. Co-Conspirator Statements

¶ 81 Stein next argues that the trial court erred in admitting, as statements of a co-conspirator, the testimony of Edward Denney, Robert Lemire, and Kevin Arbor that Norberg solicited them to kill Hall in 1983.   Stein faults the trial court for failing to make a finding that the conspiracy began in 1983, and argues that the State did not give notice that it would introduce statements from the early 1980s.

¶ 82 ER 801(d)(2)(v) provides that a co-conspirator's out-of-court statements made during the course and in furtherance of the conspiracy are not hearsay.   To admit statements under ER 801(d)(2)(v), the trial court must find sufficient evidence, other than the hearsay statements, to establish that the conspiracy existed and that the defendant was a member of the conspiracy.   State v. Guloy, 104 Wash.2d 412, 420, 705 P.2d 1182 (1985).

¶ 83 On the fourth day of trial, before presenting the first witness who testified about Norberg's statements, the State moved for a preliminary determination on the admissibility of coconspirator statements.   Based on the evidence from the first four days of trial and the former testimony of Stradley, the trial court ruled that co-conspirator statements were admissible.   The trial court did not specify the date it found the conspiracy commenced.

¶ 84 Denney testified that Norberg talked about problems with a lawyer in 1983 and solicited him to kill Hall in 1987.   Arbor testified that Norberg solicited him to kill Hall in 1983 or the mid-1980s and solicited him to kill Lund in 1987.   And Lemire testified that Norberg solicited him to kill an attorney in 1983.

¶ 85 Because the State requested and the trial court made only a preliminary ruling on the admissibility of co-conspirator statements, Stein was obliged to object to the admissibility of specific statements at trial.   See Powell, 126 Wash.2d at 256-57, 893 P.2d 615.   He did not.   The trial court thus had no opportunity to rule on whether the conspiracy had started at the time Norberg made the earlier statements.   By failing to specifically object to evidence presented at trial, Stein did not preserve the matter for appellate review.   RAP 2.5(a);  Perez-Cervantes, 141 Wash.2d at 482, 6 P.3d 1160.

¶ 86 Moreover, Stein cannot show that admitting evidence of Norberg's 1983 statements prejudiced him.   See Thomas, 150 Wash.2d at 871, 83 P.3d 970.   Stein does not challenge the trial court's ruling admitting co-conspirator statements from 1986 or 1987.   Both Denney and Arbor testified that Norberg solicited them to kill Hall or Lund in 1987.   And Stradley, Gordon Smith, and Richard Bailey also testified that Norberg solicited them to kill Hall or Lund in 1987.   The statements from 1983 are of minor significance when compared to the unchallenged statements from 1987.

¶ 87 The trial court did not abuse its discretion in admitting the co-conspirator statements.

C. Attorney-Client Communications

¶ 88 Stein contends that the trial court erred in admitting privileged attorney-client communications.

¶ 89 RCW 5.60.060(2) provides:  “An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.” 22  The person asserting the privilege bears the burden of showing that the privilege applies.  Dietz v. Doe, 131 Wash.2d 835, 844, 935 P.2d 611 (1997).

1. Testimony of Carol Kyle

¶ 90 Stein maintains that he had an attorney-client relationship with Carol Kyle when he consulted her about representing him and that his statements to her during that meeting were privileged.

¶ 91 During a pretrial discussion of Kyle's testimony, the State asserted, based on her testimony in Stein's first trial, that Kyle told Stein she was not licensed to practice law in Washington both before and during their meeting, that they met only once for about an hour-and-a-half, and that she tried to help him find a lawyer licensed in Washington.   Stein, arguing pro se but not testifying, stated that he believed he was giving her privileged information about the Washington litigation and that he believed she might represent him in matters in Oregon.   The trial court reserved a ruling on the admissibility of her testimony until it could hear Kyle's testimony on the matter.   But Stein did not request a hearing outside the jury's presence or object to Kyle's testimony at trial.

¶ 92 Kyle testified that Stein consulted her sometime between 1985 and 1987 about obtaining representation in the Clark County proceedings involving his father's guardianship.   She testified that Stein felt Judge Lodge was unduly interfering with his father's affairs and that he thought Clark County attorneys, including Ned Hall, and the Clark County bench were working together against him and his father.   Stein was at times agitated and expressed anger during the meeting.   Kyle did not describe when or how she told Stein she was not licensed to practice law in Washington, the type of information Stein provided her about the matter, or whether they discussed representation on matters in Oregon.

¶ 93 RCW 5.60.060(2) protects communications only where an attorney-client relationship exists.  Dietz, 131 Wash.2d at 843, 935 P.2d 611.   An attorney-client relationship exists if the individual subjectively believes such a relationship exists, provided that the belief is reasonable under the circumstances, including the attorney's words or actions.  Dietz, 131 Wash.2d at 843-44, 935 P.2d 611 (citing State v. Hansen, 122 Wash.2d 712, 720, 862 P.2d 117 (1993)).   A formal agreement or payment of a fee is not necessary to create an attorney-client relationship.   In re Disciplinary Proceeding Against McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330 (1983).

¶ 94 Although Stein raised the possibility that an attorney-client relationship arose during his consultation with Kyle, he did not renew his objection in order to establish that any subjective belief he may have had about an attorney-client relationship with Kyle was reasonable under the circumstances.   The trial court did not rule on the issue because it wanted to hear Kyle's testimony about when and how she informed Stein she was not licensed to practice law in Washington.   But Stein never requested a hearing on the applicability of the privilege or objected to Kyle's testimony at trial and Kyle's testimony did not address the issue.

¶ 95 The trial court did not abuse its discretion in admitting Kyle's testimony when Stein did not renew his pretrial objection to her testimony and did not establish that he had an attorney-client relationship with her.

2. Testimony of Kenneth Eiesland

¶ 96 Stein also asserts that the trial court erred in admitting the testimony of Kenneth Eiesland about a threat Stein made against Hall.

¶ 97 Eiesland represented Stein for a time in the real estate contract litigation.   Eiesland testified that, during a break in a deposition taken in 1983, Hall mentioned that he needed a new car.   Stein commented that Hall would not need a new car.   Hall did not respond to the comment, and Eiesland was unsure if Hall heard it.

¶ 98 Eiesland later asked Stein what he meant by the comment because, knowing about Stein's strong feelings that Hall was “an obstruction and an interference with [Stein's] father's affairs,” the comment scared Eiesland.   18 RP at 2922.   Stein responded that “there are ways to solve the problem without litigation.”   18 RP at 2922.   Eiesland testified in 1989, when his memory may have been clearer, that Stein responded that “there are ways to take care of Ned Hall.”   18 RP at 2923.   When Eiesland asked Stein if he was planning to shoot anyone, Stein responded, “Don't worry about it.”   18 RP at 2922.   Eiesland later reported Stein's statements to Hall because they concerned him and made him nervous.

¶ 99 The attorney-client privilege does not protect a client's remarks made in contemplation of a future crime.  Hansen, 122 Wash.2d at 720, 862 P.2d 117 (citing State v. Richards, 97 Wash. 587, 167 P. 47 (1917)).   And an attorney may reveal information about the representation of a client to prevent the client from committing a crime.  RPC 1.6(b)(2).

¶ 100 In the context of intimidating a judge, an attorney has a duty to warn of a client's true threat to harm a judge when the lawyer has a reasonable belief that the threat is real.  Hansen, 122 Wash.2d at 721, 862 P.2d 117.   A “true threat” is a statement that a reasonable person, considering the circumstances, would expect to be interpreted as a serious expression of intent to inflict bodily harm.  State v. Kilburn, 151 Wash.2d 36, 43-44, 84 P.3d 1215 (2004).

¶ 101 Eiesland testified that Stein's statements scared and worried him and he thought Stein was going to shoot someone.   He told Hall about the comments because they made him nervous.   Given the context of Stein's animosity toward Hall and the nature of his statements, Eisland could reasonably interpret Stein's statements as a true threat against Hall.

¶ 102 Because the attorney-client privilege did not protect Stein's threats to harm Hall, the trial court did not abuse its discretion in admitting Eiesland's testimony.

V. Confrontation Clause

¶ 103 Stein argues that by admitting prior testimony from a civil trial and a tape recording from a deposition, the trial court violated his right to confront the witnesses against him.23

¶ 104 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him․” U.S. Const. amend. VI.   The State can present prior testimonial statements of an absent witness only if the witness is truly unavailable and the defendant has had a prior opportunity for cross examination.  Crawford v. Washington, 541 U.S. 36, 59, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).   Although we generally review a trial court's decision to admit evidence for an abuse of discretion, Vreen, 143 Wash.2d at 932, 26 P.3d 236, we review a claimed violation of the confrontation clause de novo.  State v. Chambers, 134 Wash.App. 853, 858, 142 P.3d 668 (2006) (citing State v. Larry, 108 Wash.App. 894, 901, 34 P.3d 241 (2001)).

A. Prior Testimony of Nicholas Stein and Thelma Lund

¶ 105 Stein maintains that the trial court erred in admitting prior testimony of Nicholas and Lund in the real estate litigation because he did not have a sufficiently similar motive to cross-examine them in that case.

¶ 106 In Stein's first trial, the trial court admitted Nicholas's and Lund's testimony from the real estate contract case.  Stein I, noted at 94 Wash.App. 616, slip op. 24.   Nicholas testified that he assigned a real estate sales contract to his son but immediately afterwards he had second thoughts and asked Stein to voluntarily rescind the assignment.   Nicholas also testified that Stein and Muriel Graham, Nicholas's ex-wife and Stein's mother, tried to get Nicholas to put his assets in trust, even though Nicholas opposed the idea.   Lund testified that at the time Nicholas assigned the contract to his son, Nicholas was taking four medications, was in poor physical condition, and was having periodic seizures.

¶ 107 We upheld the admission of this testimony in Stein's first trial under ER 804(b)(1),24 finding that Stein had a sufficiently similar motive to cross-examine Nicholas and Lund because his right to property worth more than $1,000,000 was at stake and the testimony undermined Stein's defense that Nicholas was competent and voluntarily signed the deed.  Stein I, noted at 94 Wash.App. 616, slip op. 26.   We declined to review Stein's constitutional challenge at that time because he provided neither argument nor authority to support it.  Stein I, noted at 94 Wash.App. 616, slip op. 25.

¶ 108 The confrontation clause prevents the use of ex parte testimonial statements not previously tested by adversarial cross-examination.25  Crawford, 541 U.S. at 50-54, 124 S.Ct. 1354.   But Crawford merely requires a prior opportunity for cross-examination.   See Crawford, 541 U.S. at 54-56, 68, 124 S.Ct. 1354.   And there is no dispute that Stein had the opportunity to cross-examine both Nicholas and Lund in the real estate contract litigation.  Stein I, noted at 94 Wash.App. 616, slip op. 26.

¶ 109 But Stein argues that he did not have a sufficiently similar motive to cross-examine Nicholas and Lund. Yet Stein cites only cases analyzing ER 804(b)(1) or its federal counterpart, Federal Rule of Evidence (FRE) 804(b)(1).26  See United States v. Bartelho, 129 F.3d 663, 670-72 (1st Cir.1997);  United States v. DiNapoli, 8 F.3d 909, 912 (2nd Cir.1993).   Stein cites no case importing the “similar motive” analysis of ER 804(b)(1) or FRE 804(b)(1) into the Crawford analysis.   See State v. Jenkins, 53 Wash.App. 228, 234-36, 766 P.2d 499 (1989) (confrontation clause requires only prior opportunity for cross-examination).

¶ 110 Still, assuming that the “similar motive” requirement applies to a Crawford analysis, we held in our first opinion that Stein's motive to cross-examine Nicholas and Lund was sufficiently similar to satisfy ER 804(b)(1).  Stein I, 94 Wash.App. 616, slip op. 26.   The prior testimony accuses Stein of fraudulently obtaining property from his father against his father's will.   The State's theory of its case against Stein is that he was trying to remove people he believed were preventing him from getting control of his father's assets.   Stein offers no explanation how the second trial differed from the first, so that in fairness, we should reconsider the issue.  RAP 2.5(c)(2);  State v. Worl, 129 Wash.2d 416, 425, 918 P.2d 905 (1996) (an appellate court may reconsider an earlier decision in the same case if the decision was clearly erroneous and failure to reconsider would work a manifest injustice).   Under the law of the case doctrine, we follow our prior decision on this matter.   See Strauss, 119 Wash.2d at 412-13, 832 P.2d 78.

¶ 111 The trial court did not err in admitting the prior testimony of Nicholas and Lund.

B. Tape Recording from Deposition

¶ 112 Stein contends that the admission of a tape recording made during a deposition violated Crawford because the statements were testimonial and he did not have the opportunity to cross-examine the declarants.

¶ 113 Dale Haagen recorded a deposition of Nicholas taken in a case related to the real estate contract litigation.27  Nicholas and other unidentified persons were present.28  Stein was not a party to the case but insisted on attending the deposition and refused to leave until a judge ordered him to do so.   The excerpt played during trial contained only the portions when Stein refused to leave;  it did not include the deposition questions and answers.

¶ 114 The State offered the recording to show Stein's animosity toward Hall and the others involved and to show how Stein tried to influence his father in his real estate dealings.   The trial court ruled that the recording was admissible because it did not involve testimonial evidence and was not offered for the truth of any matter asserted.

¶ 115 The confrontation clause does not bar the use of testimonial statements for purposes other than to establish the truth of the matter asserted.   Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)).   Even if the recording included testimonial statements,29 it showed Stein's state of mind and how he dealt with those he believed were frustrating his ability to control Nicholas's assets.   It was not offered to prove the truth of any of the recorded statements.   The trial court did not err in admitting the recording.

VI. Cumulative Error

¶ 116 Stein asserts that he did not receive a fair trial due to cumulative error.   Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors that do not individually require reversal cumulatively produced a trial that was fundamentally unfair.  In re Pers. Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835 (1994).   The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary.  Lord, 123 Wash.2d at 332, 868 P.2d 835.   Here, Stein has failed to demonstrate any error and the doctrine of cumulative error does not apply.  State v. Hodges, 118 Wash.App. 668, 673-74, 77 P.3d 375 (2003).

VII. Jury Question

¶ 117 Stein asserts that the trial court committed error in responding to a question from the jury because the court failed to clarify the State's burden of proof.

¶ 118 During deliberations, the jury asked the court in a written note:

With regard to Instruction # 9 [sic].   Do we need to have a preponderance of evidence to prove an accomplice under sub paragraphs (1) & (2) (solicits, commands, encourages ․ (2) aids or agrees to aid ․ )?  Or, will a single piece of evidence in favor of conviction take precedence over other evidence in favor of acquittal?

Clerk's Papers (CP) at 1385.   Instruction 9 defined accomplice liability.

¶ 119 The trial court responded, also in a written note:  “ ‘Preponderance of the evidence’ is not the applicable burden of proof in a criminal trial.   Refer to instructions 1, 2, 15, 16, 17 and 21.”   CP at 1386.   Instruction 1 was the general introductory instruction, including the instruction that the jury must accept the law the trial court provides.   Instruction 2 was the instruction on the burden of proof.   Instructions 15, 16, 17, and 21 were the “to convict” instructions that provided the elements of the four charges.

¶ 120 Stein faults the trial court for failing to clarify that there is no quantum of evidence necessary to acquit a defendant of a criminal charge.   He asserts that the question shows that the jury had formed an erroneous impression of the quantum of evidence needed to find him not guilty and, once the trial court undertook to answer the jury's question, it was obligated to correct the misimpression.

¶ 121 A trial court may, in its discretion, answer questions the jury posed or give the jury further instructions during deliberations.30  CrR 6.15(f)(1);  State v. Ng, 110 Wash.2d 32, 42, 750 P.2d 632 (1988).   A question from the jury does not create an inference that the entire jury was confused or that any confusion was not clarified before the jury reached its verdict.  Ng, 110 Wash.2d at 43, 750 P.2d 632.   Jury questions are not final determinations and the jury's decision is contained exclusively in the verdict.  Ng, 110 Wash.2d at 43, 750 P.2d 632 (quoting State v. Miller, 40 Wash.App. 483, 489, 698 P.2d 1123 (1985)).   A trial court does not abuse its discretion by referring the jury to instructions that correctly and adequately state the law.  Ng, 110 Wash.2d at 42-44, 750 P.2d 632.   And a defendant's failure to challenge the underlying instructions precludes a finding that the trial court's answer referring the jury back to the instructions was error.   State v. Langdon, 42 Wash.App. 715, 717-18, 713 P.2d 120 (1986).

¶ 122 Here, the trial court instructed the jury not to use an incorrect burden of proof and directed the jury to the instructions that set forth the correct burden of proof.   And Stein does not challenge the underlying instructions.   We cannot infer from the mere fact that the jury posed a question about the burden of proof that the jury did not resolve any confusion on that subject before it reached a final verdict.  Ng, 110 Wash.2d at 43, 750 P.2d 632.

¶ 123 Stein cites United States v. Southwell, 432 F.3d 1050, 1053 (9th Cir.2005), for the proposition that a trial court is obligated to eliminate confusion when a jury asks for clarification of a particular issue.   But in that case, the jury instructions were ambiguous about whether the jury needed to unanimously reject an affirmative defense.  Southwell, 432 F.3d at 1053.   Here, the jury did not identify an ambiguity in the instructions;  the instructions provided a clear answer to the jury's question about the burden of proof.

¶ 124 The trial court did not abuse its discretion in instructing the jury about the proper burden of proof and directing the jury to instructions that explained the burden of proof.

VIII. Consecutive Sentences

¶ 125 Stein contends that the trial court violated his right to have a jury determine the facts leading to a sentence beyond the statutory maximum.   He argues that imposing consecutive sentences for the three attempted murder convictions was an exceptional sentence based on judicial fact-finding.

¶ 126 The Sixth Amendment requires that a jury must find beyond a reasonable doubt any fact, other than a prior conviction, that results in a sentence above the statutory maximum.  Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004);  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).   The “statutory maximum” is the maximum sentence a judge may impose based solely on the facts reflected in the jury verdict or that the defendant admits.  Blakely, 542 U.S. at 303, 124 S.Ct. 2531.   We review constitutional challenges de novo.  State v. Bradshaw, 152 Wash.2d 528, 531, 98 P.3d 1190 (2004), cert. denied, 544 U.S. 922, 125 S.Ct. 1662, 161 L.Ed.2d 480 (2005).

¶ 127 Former RCW 9.94A.400 (1987), now codified at RCW 9.94A.589, governed consecutive and concurrent sentences at the time of Stein's crimes.   Under that statute, the trial court was required to impose consecutive sentences when a criminal defendant was found guilty of three or more “serious violent offenses ․ arising from separate and distinct criminal conduct.”  31  Former RCW 9.94A.400(1)(b).  The statute presumed concurrent sentences for other multiple offenses unless the trial court imposed an exceptional sentence.   Former RCW 9.94A.400(1)(a).

¶ 128 The trial court sentenced Stein to 220 months for each attempted murder conviction, all three to run consecutively, and a term of 36 months for the burglary conviction, to run concurrently, for a total sentence of 660 months.   Stein asserts that he was entitled to a jury determination that the three charges of attempted murder were sufficiently “separate and distinct” to warrant consecutive sentences under former RCW 9.94A.400(1)(b).  Reply Br. of Appellant at 22.

¶ 129 Our Supreme Court expressly rejected Stein's argument in State v. Cubias, 155 Wash.2d 549, 120 P.3d 929 (2005).   Acknowledging the Blakely and Apprendi principle, the court nonetheless concluded that this principle does not apply to consecutive sentencing decisions under RCW 9.94A.589(b)(1).  Cubias, 155 Wash.2d at 553-54, 120 P.3d 929.   Whether serious violent offenses constitute “separate and distinct” conduct is properly a judicial determination, so long as the sentence for any single offense does not exceed the statutory maximum.  Cubias, 155 Wash.2d at 554, 120 P.3d 929.   The court pointed out that Blakely and Apprendi were concerned with exceptional sentences for a single charge, whereas in Cubias, the defendant was convicted of three separate counts of attempted murder.  Cubias, 155 Wash.2d at 553-54, 120 P.3d 929.   The Cubias court concluded that a “defendant has no right to serve concurrent sentences for committing multiple serious violent offenses.” 32  Cubias, 155 Wash.2d at 555, 120 P.3d 929.

¶ 130 The jury convicted Stein of three serious violent offenses 33 and the trial court imposed consecutive standard range sentences.   Because none of the individual terms of Stein's sentence exceeds the statutory maximum, Blakely and Apprendi do not apply and Stein had no right to concurrent sentences for these convictions.  Cubias, 155 Wash.2d at 554-55, 120 P.3d 929.   The trial court did not err in imposing consecutive sentences for Stein's attempted murder convictions.

IX. Vindictive Sentencing

¶ 131 Stein also contends the trial court vindictively increased his sentence after he successfully appealed.

¶ 132 The standard range sentence for Stein's attempted murder convictions was 180 to 240 months.   At Stein's first trial, the trial court imposed 180-month consecutive sentences for each attempted murder conviction, for a total sentence of 540 months.  Stein I, 94 Wash.App. at 620, 972 P.2d 505.   After Stein's retrial, the State requested 240-month consecutive sentences for each attempted murder conviction.   Stein requested an exceptional sentence downward of 22 years.   The trial court imposed consecutive sentences of 220 months for each attempted murder charge, above the middle of the standard range.   The resulting 660-month sentence was 120 months longer than Stein's original sentence.

¶ 133 Due process of law requires that a defendant's decision to exercise his right to appeal must play no part in the sentence he receives after a new trial.  North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).   Where a trial court imposes “a more severe sentence upon a defendant after a new trial, the reasons for ․ doing so must affirmatively appear.”  Pearce, 395 U.S. at 726, 89 S.Ct. 2072.   The trial court satisfies this rule where it provides an on-the-record, logical, and nonvindictive reason for the sentence.  Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).   Otherwise, a presumption arises that the increased sentence is the result of vindictiveness.  McCullough, 475 U.S. at 142, 106 S.Ct. 976.

¶ 134 The Pearce presumption, however, applies only where there is a reasonable likelihood that the increased sentence is “the product of actual vindictiveness on the part of the sentencing authority.”  Smith, 490 U.S. at 799, 109 S.Ct. 2201.   Where there is no such reasonable likelihood, the burden is on the defendant to show the alleged vindictiveness.  Smith, 490 U.S. at 799-800, 109 S.Ct. 2201 (citing Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)).   Where a different sentencer imposes the harsher penalty, the Pearce presumption does not arise because the second sentencer has no stake in the prior sentence.  McCullough, 475 U.S. at 140, 106 S.Ct. 976.

¶ 135 Here, a different judge presided over Stein's retrial.   Because this judge had no stake in Stein's original sentence, there is no reasonable likelihood that the increased sentence was due to vindictiveness and the Pearce presumption does not apply.  McCullough, 475 U.S. at 140, 106 S.Ct. 976.   And Stein has not shown that the trial court acted with actual vindictiveness.   Stein maintains that, because he was 66 years old at the time of sentencing and will therefore not likely serve out his sentence, there was no rational purpose for the extended sentence.   But the sentencing guidelines consider only the seriousness of the offense and the defendant's criminal history;  the defendant's age is not a factor.   See RCW 9.94A.010.   Although Stein speculates that the trial court imposed a longer sentence because of Stein's difficult personality or to exact retribution for uncharged crimes, he points to nothing in the record that even hints at such motives.

¶ 136 Moreover, even if the Pearce presumption did apply, the trial court's reasons for imposing a longer sentence do appear in the record.   The trial court enumerated multiple factors for the chosen punishment, including that Stein was motivated by greed, he solicited others to carry out the crimes, and he lacked introspection about the seriousness of the crimes and their effects on others.   This easily satisfies the requirements of an on-the-record, logical, and nonvindictive reason for the sentence.   See McCullough, 475 U.S. at 140, 106 S.Ct. 976.   The trial court did not vindictively increase Stein's sentence after his successful appeal.34

X. Statement of Additional Grounds for Review

¶ 137 Stein raises the same claims in his statement of additional grounds (SAG) as in his prior appeals.   He lists the following eight additional grounds:  (1) speedy trial violations;  (2) denial of retained counsel of choice;  (3) conspiracy to control and exploit assets;  (4) right to confront witnesses;  (5) excessive delay;  (6) governmental misconduct;  (7) ineffective assistance of counsel;  and (8) vindictive prosecution.

¶ 138 With the exception of three sub-issues, we have previously considered and rejected each of these claims.   In his first direct appeal, we addressed (1) his speedy trial claim, Stein I, noted at 94 Wash.App. 616, slip op. 30-32;  (2) his counsel of choice claim, Stein I, noted at 94 Wash.App. 616, slip op. 14-18;  and (3) his conspiracy claim.  Stein I, noted at 94 Wash.App. 616, slip op. 36-37.   We also previously addressed his excessive delay claim (sub-issues (a) and (b)), finding that Stein was estopped from challenging the federal district court's remedy of reinstatement of his direct appeal.  Stein I, noted at 94 Wash.App. 616, slip op. 35-36.   His governmental misconduct claim is the same as the first issue in his appeal brief and was the subject of the CrR 8.3 hearing.   And his vindictive prosecution claim is neither argued nor briefed and, thus, need not be considered.   See Thomas, 150 Wash.2d at 868-69, 83 P.3d 970.

¶ 139 This leaves three new issues:  (1) his right to confront Stradley, who was unavailable as a witness and whose testimony from the first trial the State read into the record;  (2) excessive delay because of his competency hearing (sub-issue (c));  and (3) ineffective assistance of trial counsel.

A. Right to Confront Roy Stradley

¶ 140 Citing Crawford, 541 U.S. at 36, 124 S.Ct. 1354, Stein argues that introducing Stradley's prior testimony violated his Sixth Amendment confrontation rights.   While acknowledging that Stradley testified and was subject to cross-examination at his first trial, Stein nonetheless claims that Crawford applies because he was forced to go to trial with counsel that a third party had retained against his wishes.   But in Stein's direct appeal, we found no merit to Stein's claim that he was denied his right to counsel of choice.  Stein I, noted at 94 Wash.App. 616, slip op. 14-18.

¶ 141 Following the State's evidentiary showing, the court found that Stradley was unavailable and admitted Stradley's prior testimony.   Stein does not argue that the court erred in determining that Stradley was unavailable.   The trial court did not err in admitting Stradley's prior testimony.

B. Excessive Delay Due to Competency Proceedings

¶ 142 Stein argues that he was subject to excessive delay because the trial court granted his counsel's request that he undergo an evaluation to determine if he was competent to stand trial.   He claims that this prejudiced him in that it allowed the State time to replace the attorney prosecuting the case.

¶ 143 The trial court appointed counsel to represent Stein at his request following his repeated requests for trial continuances.   Three months into her representation, Stein's counsel was concerned that Stein had some type of neurological damage that interfered with their attorney-client relationship.   At her request, the court appointed a psychiatrist, Dr. Jerry Larsen, to evaluate Stein.   Dr. Larsen found that Stein was not competent to stand trial.   The court then ordered Stein committed to Western State Hospital for an evaluation under RCW 10.77.010.

¶ 144 Because Stein refused to cooperate, Dr. Murray Hart, the hospital psychologist, reported to the court that he had insufficient evidence to contest Dr. Larsen's diagnosis.   The court then found Stein incompetent and committed him for 90 days.   After observing Stein in the hospital environment, Dr. Hart found sufficient evidence that Stein was competent to stand trial.   The court found Stein competent as well and set a trial date.

¶ 145 Stein's claim is clearly frivolous.   The State did not delay his trial so another prosecutor could prepare for trial.   Rather, defense counsel asked for the evaluation that led to the delay and the evidence shows that her request was justified.   And once there was a reason to doubt Stein's competency, the trial court was required to follow the competency statute to determine his competency to stand trial.  RCW 10.77.060(1)(a);  City of Seattle v. Gordon, 39 Wash.App. 437, 441, 693 P.2d 741 (1985).   The delay was necessary to ensure that Stein was not convicted in violation of his constitutional right not to be convicted if he was not competent to stand trial.  Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

C. Effective Assistance of Counsel

¶ 146 Stein argues that he was denied his right to effective representation because he and his trial counsel had no attorney-client relationship and she worked against his interests, refused to present his desired trial strategy, misrepresented why he wanted her removed from the case, failed to pursue his interlocutory appeal, failed to interview key prosecution witnesses, and tricked him into having a psychological evaluation.

¶ 147 The test for ineffective assistance of counsel has two parts.   One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness.   Two, the defendant must show that such conduct caused actual prejudice:  a reasonable possibility that, but for the deficient representation, the trial outcome would have differed.   State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).   We presume that counsel was effective.  State v. Sardinia, 42 Wash.App. 533, 539, 713 P.2d 122 (1986).   This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting his counsel's conduct.  State v. McFarland, 127 Wash.2d 322, 335-36, 899 P.2d 1251 (1995).

¶ 148 Stein provides no citations to the record to support his allegations.   He points to nothing in the record showing what witnesses his counsel interviewed or how his counsel might have impeached these witnesses had she been better prepared;  nor does he offer any reason to believe that but for counsel's alleged failings, the trial outcome would have differed.   As to his interlocutory appeal, we dismissed it for want of prosecution but his counsel was not then representing him because there is no right to appointed counsel in an interlocutory appeal until we accept review.  RCW 10.73.150;  see Ross v. Moffitt, 417 U.S. 600, 619, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (holding that an indigent petitioner seeking discretionary review has neither a federal due process nor equal protection right to the assistance of counsel).   Finally, and as noted above, counsel was justified in having Stein's competency evaluated.

¶ 149 Stein next argues that but for his commitment to Western State Hospital, the prosecution would not have been able to procure Bailey's testimony.   But again nothing in the record supports this claim.   Rather, the record shows that Stein's primary concern after being found competent to stand trial were his disputes with his counsel over trial strategy.   On this basis, the court denied his motion for new counsel.   Stein ultimately agreed that his attorney should continue as trial counsel.   Stein has not shown that his counsel was ineffective.

XI. Personal Restraint Petition

¶ 150 On January 24, 2005, we received Stein's memorandum in support of writ of habeas corpus, which we treated as a personal restraint petition (PRP) and consolidated with his direct appeal.35

¶ 151 This PRP is virtually identical to Stein's previous PRP, No. 31993-4-II, which we dismissed on November 18, 2004, and for which the Supreme Court denied review on January 27, 2005, No. 76387-9.

¶ 152 The current PRP raises the same grounds as Stein's prior petition and, thus, we may not consider it.  RCW 10.73.140 (“If upon review, the [C]ourt of [A]ppeals finds that the petitioner has previously raised the same grounds for review ․ the [C]ourt of [A]ppeals shall dismiss the petition on its own motion․”);  In re Pers. Restraint of Johnson, 131 Wash.2d 558, 566, 933 P.2d 1019 (1997) (holding that Court of Appeals cannot consider subsequent petitions raising same grounds for relief).   Nor will we transfer the PRP to the Supreme Court as RAP 16.4(d) allows.  Johnson, 131 Wash.2d at 566, 933 P.2d 1019.   Our Chief Judge determined that the claims raised were frivolous and the Supreme Court considered Stein's claims when it denied his petition for review.

¶ 153 But Stein argues that the Chief Judge considered only four claims and he raised nine issues.   A careful examination of the record shows that the Chief Judge considered all of Stein's claims, merely collapsing them into four issues.

¶ 154 We affirm the convictions and sentences and deny Stein's personal restraint petition.

FOOTNOTES

1.   RAP 10.10.

2.   Other targets allegedly included Clark County Superior Court Judge Thomas Lodge, who presided over the real estate contract litigation, and Dale Haagen, one of the purchasers of Nicholas's real estate.   Haagen also had initiated litigation related to the real estate sales contract.

3.   Stradley and Denney testified in the first trial, but because they were unavailable to testify at the second trial, the State read their transcribed testimony to the jury.

4.   Norberg pleaded guilty to conspiracy to commit second degree murder.   Bailey pleaded guilty as an accomplice to first degree murder and first degree attempted murder.   Smith pleaded guilty to conspiracy to commit first degree murder.

5.   We terminated review of this ruling when Stein failed to prosecute his motion for discretionary review.

6.   Although nearly 20 years have now passed since Stein's original conviction, the relevant delay here, from our dismissal of Stein's direct appeal in 1991, to the time the federal court reinstated it in 1996, was only 5 years.

7.   Article I, section 10 provides:  “Justice in all cases shall be administered openly, and without unnecessary delay.”  Article I, section 22 provides, in part:  “In criminal prosecutions the accused shall have the right to ․ have a speedy public trial by an impartial jury ․ and the right to appeal in all cases.”

8.   In 1989, Lund's estate filed a wrongful death action against Stein and Norberg and the State filed a criminal profiteering action against Stein, Norberg, Bailey, and Smith.  Winchester v. Stein, 135 Wash.2d 835, 840, 959 P.2d 1077 (1998).   In a consolidated action, the jury found in favor of Lund's estate and the State, and the Supreme Court upheld the verdict.  Winchester, 135 Wash.2d at 841, 861-62, 959 P.2d 1077.

9.   The trial court gave greater weight to the testimony of the State's expert, Dr. Stan Abrams, who testified that although Stein suffers deficits in his short-term memory, his memory function has remained stable since Dr. Abrams's first evaluation in 1989.   The trial court gave less weight to the testimony of Stein's expert, Dr. Caleb Burns, finding that Dr. Burns, who had treated Stein for many years, had become an advocate for Stein.   The trial court also considered the interest Stein's family members had in the outcome of the proceeding when evaluating their testimony about Stein's decreased memory function.

10.   Bailey asked Judge Bennett for assistance in petitioning for clemency, obtaining work as an informant, and in finding his daughter, who had been adopted while he was in prison.   Judge Bennett did not assist Bailey.

11.   Stein did not raise this objection before the trial court.   A defendant may, however, raise a manifest error affecting a constitutional right for the first time on appeal.  RAP 2.5(a).   A violation of the collateral estoppel component of the double jeopardy is a manifest constitutional error.  State v. Kassahun, 78 Wash.App. 938, 948, 900 P.2d 1109 (1995).   Thus, we consider the issue.

12.   The federal constitution provides:  “No person shall ․ be subject for the same offense to be twice put in jeopardy of life or limb․” U.S. Const. amend. V.   The state constitution provides:  “No person shall ․ be twice put in jeopardy for the same offense.”  Wash. Const. art. I, § 9.

13.   Such a conclusion was easy to reach in Dowling because the defendant admitted entering the woman's home but denied any criminal intent.  Dowling, 493 U.S. at 351, 110 S.Ct. 668.

14.   The jury in the civil wrongful death/criminal profiteering trial found by a preponderance of the evidence that Stein was in fact responsible for Lund's death.

15.   Stein maintains that in proposing this instruction, he did not agree to admission of the evidence.   Stein objected to the admission of any evidence relating to the Lund murder under ER 404(b) and, once the trial court ruled it was admissible, merely proposed this instruction as the proper way to deal with the conflicting prior proceedings.   He did not thereby waive his ER 404(b) objection.

16.   Stein also complains that the trial court did not repeat the instruction at the end of the trial as it proposed to do.   But, by failing to ask the court to repeat the instruction, Stein cannot now complain that the court failed to give it.  State v. Scott, 93 Wash.2d 7, 14, 604 P.2d 943 (1980).

17.   We address Stein's claim that the evidence related to Lund was unduly prejudicial in the following section, as part of the ER 404(b) analysis.

18.   Stein was acting pro se at this hearing.

19.   The wrongful death/criminal profiteering jury verdict represents a higher standard of proof than is necessary for ER 404(b) evidence.  ER 404(b) evidence is admissible if the court finds by a preponderance of the evidence that the defendant “probably” committed the uncharged acts, Kilgore, 147 Wash.2d at 292, 53 P.3d 974;  the wrongful death/criminal profiteering jury found by a preponderance of the evidence that Stein actually did solicit Lund's murder.

20.   ER 105 provides:  “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”

21.   Judge Lodge read one document to publish it to the jury, but when the State asked him to read another document, the trial court called a side bar and the State's attorney published all subsequent documents to the jury.

22.   RPC 1.6(a) provides that it may be an ethical violation for an attorney to reveal client confidences or secrets.   A “confidence” is information protected by the attorney-client privilege, whereas a “secret” is other information gained during the representation that the client has requested remain confidential or disclosure of which would be detrimental to the client.  RPC 1.6, cmt. 19.   It may therefore be unethical for a lawyer to reveal a client's secret even where the attorney-client privilege does not protect the information.   But because an attorney may reveal a secret when a court so orders, resolution of the statutory privilege issue also resolves the ethical issue.   See Dietz v. Doe, 131 Wash.2d 835, 842 n. 3, 935 P.2d 611 (1997).

23.   Stein alleges a violation of article 1, section 22 of the Washington Constitution, which guarantees a defendant the right “to meet the witnesses against him face to face.”  Wash. Const. art. 1, § 22.   But his argument focuses exclusively on the federal constitution's confrontation clause.   We decline to consider Stein's assignment of error under the state constitution.

24.   ER 804(b)(1) provides that the hearsay rule does not exclude:Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.There is no debate that Nicholas and Lund were unavailable or that Stein had the opportunity to cross-examine them in the real estate contract case.  Stein I, noted at 94 Wash.App. at 616, slip op. 26.

25.   Although the Crawford court declined to provide a definition of “testimonial,” prior sworn testimony from another trial is clearly testimonial.  Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

26.   Because the federal rule is identical to ER 804(b)(1), this court can look to federal law when interpreting ER 804(b)(1).  State v. DeSantiago, 149 Wash.2d 402, 414, 68 P.3d 1065 (2003).

27.   Haagen's real estate brokerage company filed a lawsuit against Nicholas Stein's guardianship to recover a fee for a failed real estate transaction.

28.   Haagen testified that he, his father, Nicholas, Hall, and two other attorneys were present at the deposition.   The record identifies the voices of Stein, Nicholas, Hall, and the trial court, but most statements are unidentified.

29.   Because the excerpt of the tape recording admitted at trial contains only the portions when Stein refused to leave and not the formal deposition process, the statements are likely not “testimonial.”   See Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (noting that “testimonial” statements include in-court testimony or its functional equivalent).

30.   The trial court must notify the parties of a jury question and provide them an opportunity to comment on an appropriate response, and it must make a record of any objections to the court's response.  CrR 6.15(f)(1).   The record on appeal does not show whether the court notified the parties of the question or if they objected to the response.   Because we find that the trial court did not abuse its discretion in answering the question, any error here is harmless. State v. Langdon, 42 Wash.App. 715, 717-18, 713 P.2d 120 (1986).

31.   The statute now in effect requires only two serious violent offenses arising from separate and distinct criminal conduct to impose consecutive sentences, but is otherwise substantively the same for purposes of this issue.   See RCW 9.94A.589(1)(b).

32.   The Supreme Court recently concluded that consecutive sentences for crimes that are not serious violent offenses do implicate Blakely and Apprendi.  In re Pers. Restraint of VanDelft, 158 Wash.2d 731, 743, 147 P.3d 573 (2006).   Because RCW 9.94A.589(1)(a) presumes that sentences for crimes that are not serious violent offenses run concurrently, consecutive sentences under that subsection are exceptional sentences.  VanDelft, 158 Wash.2d at 742, 147 P.3d 573.

33.   Attempted first degree murder is a “serious violent offense.”   RCW 9.94A.030(41)(a)(i), (ix).

34.   Stein also assigned error to a mistake in the judgment and sentence that imposed a consecutive, rather than a concurrent 36-month sentence for the burglary conviction.   But, the Department of Corrections notified the trial court of this error and the court corrected the judgment and sentence on its own motion.   Stein concedes that the error has been corrected.

35.   RAP 3.3(b).

ARMSTRONG, J.