STATE v. FLEMING (2007)

OPINION PUBLISHED IN PART

 ¶ 1 Jon Royal Fleming appeals his conviction for witness tampering.   He raises numerous claims of error on appeal, including a claim that he was denied a unanimous jury verdict on precisely which of the alternate means of witness tampering he committed.   He also claims that his offender score was improper because the State failed to present a presentence report or to otherwise prove his prior convictions.   We reject all of his arguments and affirm the verdict.

FACTS

¶ 2 Fleming was incarcerated at the Washington Correction Center (WCC) when he learned that Clarence Ward, a man he had been accused of assaulting, was in jail as well.¹  In a March 20, 2002, phone conversation with his grandmother, Zenaida Evans, Fleming instructed her to bail Ward out of  jail and ask him to disappear until after trial.   The Department of Corrections (DOC) recorded this conversation on tape (DOC generally records all inmate phone conversations).

¶ 3 Evans contacted Ward's family and offered them money to post bail for Ward so he could disappear and not testify against Fleming.   Ward's family refused.   Meanwhile, DOC investigator George Gilbert discovered the phone conversation between Fleming and Evans and gave a copy of the tape to Detective Jack Gardner with the Mason County Sheriff's Office.

¶ 4 Approximately six months after the phone conversation, DOC destroyed the original recording.   DOC also destroyed tape recordings of Fleming's other phone conversations with Evans, including recordings of conversations that occurred soon after the incriminating conversation.   Gilbert later testified that he listened to the subsequent phone calls but that there was no further mention of witness tampering.

¶ 5 The jury convicted Fleming as charged.   Fleming now appeals.   We consolidated this appeal with his personal restraint petition (PRP).

ANALYSIS

I. Alternate Means of Witness Tampering

¶ 6 Fleming argues that he was denied his constitutional right to a unanimous verdict, which may include the right to jury unanimity as to the means by which he committed the crime.   He asserts that witness tampering can be committed by several alternative means:  (1) inducing a witness to testify falsely, (2) inducing a witness to unlawfully withhold testimony, or (3) inducing a witness to absent himself from the proceedings.  RCW 9A.72.120. He contends that we should reverse his conviction because (1) the jury's general verdict did not include a particularized expression of unanimity as to the means by which he committed the crime, and (2) the evidence was not sufficient to establish  that he induced a witness to either testify falsely or to unlawfully withhold testimony.

 ¶ 7 Criminal defendants in Washington have a right to a unanimous jury verdict.  State v. Ortega-Martinez, 124 Wash.2d 702, 707, 881 P.2d 231 (1994);  Wash. Const. art. I, § 21.   In certain situations, the right to a unanimous jury verdict also includes the right to express unanimity on the means by which it finds the defendant to have committed the crime.  Ortega-Martinez, 124 Wash.2d at 707, 881 P.2d 231.

 ¶ 8 The threshold test governing whether unanimity is required on an underlying means of committing a crime is whether sufficient evidence exists to support each of the alternative means presented to the jury.  Ortega-Martinez, 124 Wash.2d at 707, 881 P.2d 231.   If the evidence is sufficient to support each of these alternative means, a particularized expression of unanimity as to the means by which the defendant committed the crime is unnecessary to affirm a conviction;  the court may infer that the jury rested its decision on a unanimous finding as to the means.  Ortega-Martinez, 124 Wash.2d at 707-08, 881 P.2d 231.

 ¶ 9 If one or more of the alternative means is not supported by substantial evidence, the verdict will stand only if we can determine that the verdict was based on only one of the alternative means and that substantial evidence supported that alternative means.  State v. Rivas, 97 Wash.App. 349, 351-52, 984 P.2d 432 (1999), overruled on other grounds by State v. Smith, 159 Wash.2d 778, 154 P.3d 873 (2007) (conviction affirmed where there was no danger that the verdict rested on unsupported alternative means because evidence was presented as to only one means, even though the jury instruction included three alternative means of assault);  State v. Allen, 127 Wash.App. 125, 132-35, 110 P.3d 849 (2005) (conviction overturned where the court could not be certain that the jury relied solely on one means because evidence regarding two alternatives was presented);  State v. Johnson, 132 Wash.App. 400, 410, 132 P.3d 737 (2006) (burglary conviction upheld where the reviewing court could tell that the verdict was based on only one means which was supported by substantial evidence).   Evidence is sufficient to support conviction if, after viewing the evidence in a light most favorable to the State, a reasonable factfinder could find the essential elements of the crime beyond a reasonable doubt.   See State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980).

 ¶ 10 Here, the State presented substantial evidence only that Fleming tried to induce Ward to absent himself from the proceedings.   The only evidence indicating a different means of tampering was the conversation where Evans asked Ward to change his story, but that conversation illustrates only Evans' crime, not Fleming's.   Fleming himself concedes that there was not sufficient evidence to establish that Fleming sought to induce a witness to testify falsely or unlawfully withhold testimony.   We can determine, from the record before us, that the verdict was based on only one of the alternative means-inducing the witness to “disappear”-and that substantial evidence supports that alternative.   We therefore hold that Fleming was not denied his right to jury unanimity.

II. Offender Score

A. Sufficient Evidence to Establish Criminal History

 ¶ 11 Fleming argues that the trial court incorrectly determined his offender score because it based its calculation on insufficient evidence of Fleming's criminal history.   This argument is not persuasive.   In determining any sentence, “the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.”  RCW 9.94A.530(2).  “ ‘Acknowledged’ facts include all those facts presented or considered during sentencing that are not objected to by the parties.”  State v. Grayson, 154 Wash.2d 333, 339, 111 P.3d 1183 (2005).   Fleming did not object to the prosecutor's recitation of criminal history at the sentencing hearing.   Thus, the trial court's reliance on that recitation was proper.

 B. Same Criminal Conduct Irrelevant

 ¶ 12 Fleming also argues that the trial court miscalculated his offender score by neglecting to determine on the record whether his prior convictions constituted the same criminal conduct under RCW 9.94A.525. This argument is not persuasive either.   A trial court may determine that nine convictions exist and then stop calculating, so long as the court is not considering the imposition of an exceptional sentence based on reasons related to the offender score.  State v. Lillard, 122 Wash.App. 422, 433, 93 P.3d 969 (2004), review denied, 154 Wash.2d 1002, 113 P.3d 482 (2005).   Where the standard sentence range is the same regardless of a recalculation of the offender score, any calculation error is harmless.   See State v. Argo, 81 Wash.App. 552, 569, 915 P.2d 1103 (1996).   The 2002 sentencing court calculated Fleming's offender score as fourteen, based on the circumstances surrounding his eight prior convictions.   Additionally, the 2002 court convicted Fleming of three more crimes.   The trial court here could have determined that those three 2002 convictions constituted same criminal conduct, but regardless of that calculation, Fleming's offender score would be more than nine.   Here, the standard sentence range is the same whether Fleming's offender score is nine or eleven. Thus, the trial court's failure to specifically address same criminal conduct was harmless.

¶ 13 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.

¶ 14 Fleming also claims error, arguing that:  (1) the State destroyed potentially exculpatory evidence;  (2) charging was delayed;  (3) he was denied access to a law library or legal materials;  (4) the prosecutor committed misconduct by failing to provide pretrial discovery and by interfering with Fleming's defense;  (5) judicial bias tainted pretrial hearings;  (6) his taped phone conversation was improperly admitted;  (7) his mental health evaluation was improper;  (8) he had to wear a shock device during trial;  (9) the jury instructions on knowledge, the jury's duty to convict, and accomplice liability were all misleading;  and (10) cumulative error denied him a fair trial.   We hold that none of these claims of error merit reversal.

FACTS RELATING TO THE UNPUBLISHED ISSUES

I. Arrest and Pretrial Motions

¶ 15 In May 2002, Fleming and Evans were both arrested for witness tampering.   Evans was released, but Fleming remained in custody on other charges.   About a year later, on May 29, 2003, Evans's case was resolved when she stipulated to the investigator's report and entered a diversion program.   Fleming was finally charged with witness tapering on November 21, 2003.

¶ 16 At his arraignment, Fleming told the court that he had represented himself in a court proceeding before and that he was familiar with Washington's court rules.   The court warned him, “[Y]ou would be most probably better served by having legal counsel than attempting to represent yourself.”   1 Report of Proceedings (RP) (Dec. 4, 2003) at 4.

¶ 17 Fleming proceeded to object to the arraignment as untimely.   He argued that the court should hear his motion that day because he believed he would waive his right to that objection if he did not raise it immediately.   The court ruled that the arraignment was timely.   The trial court later determined that this was a discretionary ruling and denied Fleming's affidavit of prejudice under RCW 4.12.050.2  Ultimately, a different judge presided at trial.

¶ 18 The trial court granted Fleming's request for a competency evaluation by Western State Hospital (WSH) and on April 9, 2004, WSH issued a report saying that Fleming had sufficient capacity to understand the legal proceedings and to assist in his own defense.

II. Fleming's Access to Legal Materials and Other Resources

¶ 19 According to Fleming, he finally received a copy of the court rules and was allowed one hour per week on a caselaw computer data base only after repeated requests for access to a law library and legal materials.   He claims that he was only able to consider the court rules for one hour because the DOC refused to give him a pen or paper.

¶ 20 On June 15, 2004, the trial court issued an order authorizing Fleming reimbursement for clerical supplies, authorizing legal mail to any person on Fleming's witness list, and ordering the DOC to give Fleming access to “the full legal resources at [Stafford Creek Correction Center].”   Clerk's Papers (CP) 52.   About a month later, on July 23, 2004, the trial court denied a second motion for access to legal materials, stating that it had already issued an order granting access and that Fleming must now litigate the issue with the DOC.

¶ 21 The trial court appointed standby counsel to assist Fleming on various motions.   Standby counsel argued effectively all motions after his appointment and ultimately conducted the trial.

III. Use of Restraints at Trial

¶ 22 At a pretrial hearing, Fleming's stand-by counsel noted that Fleming was wearing an “electric cuff” and asked that all other restraints be removed in front of the jury.   3 RP (Jul. 26, 2004) at 271.   The trial court deferred ruling on the issue.

¶ 23 At another hearing the day before trial, Fleming was restrained in waist and leg shackles and wore an electronic immobilization device (EID) on his leg.   The court asked someone to lift Fleming's pant leg so it could view the device and noted, “[Y]ou really don't see it with your pants.”   4 RP (Sept. 28, 2004) at 310.   Stand-by counsel agreed.   The court ruled that Fleming would not wear shackles during the trial but would wear the EID on his leg.

¶ 24 After this ruling, a discussion ensued about how many guards were necessary in the courtroom.   Fleming himself argued that, because the EID could immobilize him, only two guards were required.   He did not ask for the EID to be removed during trial.   Ultimately, the trial court decided to have six guards in the courtroom, four uniformed and two plain clothed.   Fleming objected to this many officers being present.   The trial court made no findings on this issue.

¶ 25 The next morning, before voir dire, Fleming complained to the court that the EID was too tight on his leg.   A similar EID had malfunctioned a few months earlier and shocked Fleming badly, and Fleming was also extremely worried about the device on his leg accidentally discharging again.3

¶ 26 A short while later, during a break in voir dire when the prospective jurors were not present, Fleming complained that the device was making his leg cramp and that one of the flexible plastic restraints used to secure the EID was sticking out and was visible.   The plastic was cut off so that it would not show.   Fleming also claimed, “I've noticed the jurors when I'm walking, they're looking at my leg.   It looks ․ pretty obvious that something's there.”   RP (Sept. 29, 2004) at 82.   The court responded, “You've got a brace․ It's an old football injury.”   RP (Sept. 29, 2004) at 82.   Fleming replied, “Yeah, because I can't put any weight on it at all it's so cramped up.”   RP (Sept. 29, 2004) at 82.

¶ 27 A few days later, toward the end of trial, Fleming moved for a mistrial because of “an overkill of DOC presence.”   5 RP (Oct. 1, 2004) at 487.   He claimed that the jury kept staring at his “shock collar” and that the extensive security measures showed the jury that he was incarcerated.   5 RP (Oct. 1, 2004) at 487.

¶ 28 The trial court denied Fleming's motion, stating:

I've watched the jury as well.   There is nothing at all obvious about the shock device that is on your leg.   There was a problem with the band sticking out a little bit on the first morning, and it couldn't be known whether that was a leg brace for a knee injury or whether it was a deformed limb or what.   And I frankly have watched that jury just as closely as you have to see if there is anything going on with that, and I haven't seen anybody looking at your leg in anticipation.

Insofar as the presence of guards, it is not uncommon to have guards in courtrooms today as security forces in this situation, and I don't believe that there is anything that is overly obtrusive about the presence of law enforcement as they exist.

5 RP (Oct. 1, 2004) at 487-88.

ANALYSIS

I. Destruction of Potentially Exculpatory Evidence

¶ 29 Fleming argues that he withdrew from the witness tampering plan by telling Evans in a phone conversation the next day not to bail out Ward. He claims that he tried to obtain the tapes of this exculpatory conversation, but that the DOC destroyed them before he could get a copy.   Fleming now asserts that the State's destruction of this material exculpatory evidence violated his constitutional right to due process.   He contends that this evidence of withdrawal would have provided a complete defense to the charge and that the exculpatory value was evident to anyone who reviewed the tapes.  RCW 9A.08.020(5).4  He claims that comparable evidence was not available because only he and Evans could testify to the conversation and they both had an interest in the case's outcome.   He asks us to vacate his conviction and dismiss his case.

¶ 30 Fleming did not provide us with direct evidence that he requested the tapes from the DOC before he was charged in November 2003.5  The only evidence offered of a direct request for the tapes comes from a motion for discovery Fleming filed in December 2003 requesting, among other things, “[a]ll taped conversations, from January 2001 to May 30th 2002 by DOC to Zady Evans.”   CP at 227.

¶ 31 Fleming also raised this issue before the trial court as part of his June 2004 motion to dismiss.   In denying Fleming's motion, the trial court found there was “no showing of notice to or knowledge of the State of the existence of exculpatory evidence contained on taped [sic] subsequently destroyed pursuant to chapter 9.73 RCW.” CP at 43.

¶ 32 Washington's due process clause affords the same protection regarding a criminal defendant's right to discover potentially exculpatory evidence as the federal due process clause.  State v. Wittenbarger, 124 Wash.2d 467, 474, 880 P.2d 517 (1994).   To comport with due process, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense.  Wittenbarger, 124 Wash.2d at 475, 880 P.2d 517;  see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶ 33 If the State fails to preserve “material exculpatory evidence,” criminal charges must be dismissed.  Wittenbarger, 124 Wash.2d at 475, 880 P.2d 517.   A showing that the evidence might have exonerated the defendant is not enough;  to be considered “material exculpatory evidence,” the evidence must (1) possess exculpatory value that was apparent before it was destroyed, and (2) be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.  Wittenbarger, 124 Wash.2d at 475, 880 P.2d 517.   If the evidence does not meet this test and is only “potentially useful” to the defense, failure to preserve the evidence does not constitute a denial of due process unless the defendant can show bad faith on the State's part.  Wittenbarger, 124 Wash.2d at 477, 880 P.2d 517.

¶ 34 Here, Fleming fails to establish either (1) that the tapes were “material exculpatory evidence” or (2) bad faith on the State's part in destroying “potentially useful” evidence.   There is no evidence in the record showing that the tapes possessed exculpatory value that was apparent before they were destroyed.   Fleming failed to elicit any testimony from Evans regarding his alleged withdrawal from the plan or regarding the purported second, exculpatory conversation.   Fleming presented no evidence substantiating his version of what the tapes contained.

¶ 35 Moreover, even if the tapes were exculpatory on their face, Fleming was able to obtain comparable evidence by reasonably available means.   Evans testified at trial and was therefore available to testify as to the conversation's content.   Fleming argues that he needed the tape because Evans's testimony would not carry much weight, but we reject this argument as overly speculative. Fleming directed testimony from Evans regarding multiple other topics, including his bipolar disorder and mental state, and we see no reason why he would not take the opportunity to admit testimony regarding the tapes.

¶ 36 Because the tapes were neither exculpatory on their face nor of such a nature that their content was unavailable by other means, they were not “material exculpatory evidence.”   The tapes were, arguably, potentially useful to the defense.   As such, in order to prevail, Fleming must establish bad faith on the State's part in destroying them.  Wittenbarger, 124 Wash.2d at 477, 880 P.2d 517.   Fleming does not offer any examples of bad faith on the State's part in destroying the tapes, and we therefore reject this argument as well.

¶ 37 Fleming also claims as part of his argument that the DOC violated RCW 9.73.095(3)(c) 6 by destroying the tapes about six months after they were made.   He argues that this statute orders that the tapes be held for at least one year.   However, the statute was never meant to guarantee the availability of recorded conversations for one year.   Rather, requiring that the tapes be destroyed a year later was meant to protect the inmates' privacy by ensuring their taped conversations would not be available forever.   Providing a copy of the incriminating tape to the police did not impinge on this policy-it is not reasonable to expect that such privacy concerns would extend to tapes of conversations planning a crime.   Therefore, destroying the tapes earlier did not violate RCW 9.73.095 in either spirit or letter.

II. Preaccusatorial Delay/ Speedy Trial

¶ 38 Fleming claims that the eighteen month delay between his arrest and his arraignment violated his Sixth Amendment due process rights.   He argues that the delay prejudiced him because the potentially exculpatory tapes were destroyed in this period.   He claims that during the interim period, he demanded speedy trial and also made requests regarding the tapes' production. 7

¶ 39 The State responds that Fleming must show actual prejudice, not merely the possibility of prejudice, and that Fleming was not entitled to speedy disposition because charges had not yet been filed.   It claims that Fleming never made a public disclosure request for the tapes between his arrest and charging.   The State also argues that it had good reason to delay filing charges-to secure Evans's testimony.   It claims that concurrent prosecution would raise issues of self-incrimination if Evans were called to testify against Fleming while her case was still pending.

¶ 40 Fleming urges us to apply the four-part balancing test from Barker v. Wingo8 and hold that his constitutional right to a speedy trial was violated.   The Barker court identified four factors that courts should weigh:  (1) the length of the delay;  (2) the reason for the delay;  (3) the defendant's assertion of his right;  and (4) prejudice to the defendant.   Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).   Fleming claims that because the State never called Evans as a witness, its reason for the delay was inadequate.   He claims that he requested a speedy disposition and that the delay prejudiced him because he was not charged until after the exculpatory tapes were destroyed and two potential defense witnesses had died.

¶ 41 We reject Fleming's Sixth Amendment speedy trial claim. The United States Supreme Court has concluded that either a formal indictment or information, or else the actual restraints imposed by arrest and holding, are necessary to engage the protection of the Sixth Amendment speedy trial provisions.  United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986).   Our Supreme Court has similarly determined that the right to a speedy trial attaches, under both the federal and state constitutions, with the formal filing of an information or indictment.   State v. Chavez, 111 Wash.2d 548, 558, 761 P.2d 607 (1988).

¶ 42 A delay between an alleged criminal act and the filing of charges may violate the defendant's due process rights and require dismissal.  Chavez, 111 Wash.2d at 558, 761 P.2d 607.   Our Supreme Court has set out a 3-prong test for determining when preaccusatorial delay violates due process:  (1) the defendant must show he was prejudiced by the delay;  (2) the court must consider the reasons for the delay;  and (3) if the State is able to justify the delay, the court must undertake a further balancing of the State's interest and the prejudice to the accused.  State v. Alvin, 109 Wash.2d 602, 604, 746 P.2d 807 (1987) (citing State v. Calderon, 102 Wash.2d 348, 352-53, 684 P.2d 1293 (1984)).   We will only reach the test's second part if the defendant first establishes prejudice.  State v. Norby, 122 Wash.2d 258, 264, 858 P.2d 210 (1993).

¶ 43 The defendant must show actual, rather than speculative, prejudice;  the mere possibility of prejudice is insufficient.  State v. McConville, 122 Wash.App. 640, 646, 94 P.3d 401 (2004).   Here, Fleming has not demonstrated prejudice.   He did not present testimony at trial that he withdrew from the witness tampering plan.   Had he offered this testimony from Evans and the jury rejected it, he could possibly demonstrate prejudice because he was denied a means to bolster his witness's credibility, but he cannot claim prejudice after failing to offer the evidence at trial.   Because Fleming has failed to show actual prejudice, his Sixth Amendment speedy trial claim fails.

III. Access to Law Library

¶ 44 Fleming argues that his constitutional rights to self-representation and to due process were violated when he was denied access to law library materials and was prohibited from contacting witnesses.   He claims that he moved the court for access to legal materials numerous times during the course of his case but was denied access until standby counsel was appointed in June 2004.   Fleming also states that the trial court entered an order that prohibited him from contacting any prosecution witnesses, including Evans.   He contends that this order effectively denied him his right to pro se representation.

¶ 45 Specifically, Fleming claims that the belated access to legal materials prejudiced him because he did not find out until too late that he needed to file an affidavit of prejudice before the judge made any discretionary rulings.   Although he filed an affidavit shortly after his arraignment, the court ruled that it was nonetheless untimely.

¶ 46 The Sixth Amendment to the United States Constitution guarantees a criminal defendant the constitutional right to waive the assistance of counsel and proceed pro se.   See State v. Hahn, 106 Wash.2d 885, 889, 726 P.2d 25 (1986).   In order to ensure a meaningful pro se defense, the State must allow the defendant reasonable access to legal materials, paper, writing materials, and the like.  State v. Bebb, 108 Wash.2d 515, 524, 740 P.2d 829 (1987).   Additionally, an incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense.  Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985).

¶ 47 However, a defendant who chooses to represent himself does not have a due process right of access to a library so long as he is afforded some alternative means for assistance in preparing his defense.  Milton, 767 F.2d at 1447.   A law library is but one of various constitutionally permissible means of providing “meaningful access” to the courts.  State v. Nicholas, 55 Wash.App. 261, 269, 776 P.2d 1385 (1989).

¶ 48 In State v. Nicholas, Division One held that the defendant had meaningful access to legal materials when he had a standby lawyer and the court provided funds to hire a “runner” to do legwork.  Nicholas, 55 Wash.App. at 268, 776 P.2d 1385.   In Silva, the defendant did not have direct access to a law library, but he could ask a law librarian general legal questions, obtain materials on general legal topics, and obtain copies of every case and legal publication he requested by citation.  State v. Silva, 107 Wash.App. 605, 623, 27 P.3d 663 (2001).   Where constitutionally adequate means of access are provided, a defendant may not reject the method provided “and insist on an avenue of his or her choosing.”  Nicholas, 55 Wash.App. at 269, 776 P.2d 1385 (quoting United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir.1982) cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983).

¶ 49 The trial court has broad discretion to determine what measures are necessary or appropriate to constitute reasonable access to legal resources.   Silva, 107 Wash.App. at 622-23, 27 P.3d 663.   The trial court must consider the circumstances, including the nature of the charge, the complexity of the issues involved, the need for investigative services, the orderly administration of justice, the fair allocation of judicial resources (i.e., an accused is not entitled to greater resources than he would otherwise receive if he were represented by appointed counsel), legitimate safety and security concerns, and the accused's conduct.  Silva, 107 Wash.App. at 623, 27 P.3d 663.

¶ 50 Here, the trial court did not abuse its discretion.   By appointing standby counsel to assist where necessary, the court ensured that Fleming had access to legal resources.   The pleadings Fleming filed before his standby counsel's appointment reflect considerable access to legal resources in that the pleadings adequately cited case law, statutes, and court rules.   The court allowed Fleming to contact some witnesses by letter, and Fleming did not object to the continuing no-contact order regarding Evans.   Therefore, we hold that Fleming's due process rights were not violated.

¶ 51 As for Fleming's failure to realize that he was waiving his right to file an affidavit of prejudice by bringing motions at his arraignment, we hold that Fleming cannot now raise this issue.   He informed the court that he was familiar with the court rules and declined the assistance of counsel, demonstrating that he knew some rights can be waived if not timely asserted.

IV. Prosecutorial Misconduct

A. Discovery Violations

¶ 52 In his PRP, Fleming claims that the prosecutor failed to provide him with discovery as CrR 4.7(a) requires and that the prosecutor's agents stole his work product.   As evidence, he submitted an affidavit stating that the State's agents stole letters he sent to his aunt which outlined his defense strategy and that the agents gave the prosecutor those letters.9  He submits an affidavit from a fellow inmate stating that he saw corrections officers in Fleming's cell examining his legal documents and removing some papers.

¶ 53 Fleming argues that he was planning to center his defense on showing that DOC and the prosecutor conspired to manufacture charges and destroy evidence.   Accordingly, he sought to obtain communications between DOC's Intelligence and Investigations Office (I & I) and police as well as communications between I & I and the prosecutor to impeach DOC's credibility and obtain a dismissal under CrR 8.3(b).10

¶ 54 As a corollary, Fleming also claims that the State violated his right to counsel because he was acting as his own attorney, his aunt was his agent, and any correspondence to her was protected by attorney-client privilege.   While he understands that DOC has to inspect his communications, he objects to DOC sharing these communications with the prosecutor's lead investigator.

¶ 55 We review a trial court's ruling on a claim of prosecutorial misconduct under an abuse of discretion standard.   See State v. Cheatam, 150 Wash.2d 626, 652, 81 P.3d 830 (2003).   The defendant bears the burden of establishing misconduct and of showing that the conduct was prejudicial.  Cheatam, 150 Wash.2d at 652, 81 P.3d 830.

¶ 56 When Fleming brought his discovery motion, the trial court instructed the State to inquire about any substantive correspondence between I & I and the prosecutor's office and between Detective Gardner and the I & I regarding Fleming's case.   At the next hearing, the State confirmed that it had inquired and that no correspondence took place except that which it had already documented.   Fleming offers only speculation that this is not true.   Therefore, Fleming has not met his burden of showing that prosecutorial misconduct occurred or that the trial court abused its discretion.

B. Dismissal Under CrR 8.3(b)

¶ 57 Fleming claims that the State's failure to produce the requested discovery and its failure to produce the tape of his later exculpatory conversation amounted to mismanagement.   He argues that dismissal is warranted under CrR 8.3(b).  The trial court denied Fleming's motion to dismiss on this issue.

¶ 58 Dismissal of charges under CrR 8.3 is an extraordinary remedy available only when there has been prejudice to the accused's rights that materially affects his right to a fair trial and when granting a new trial would not remedy the prejudice.   See State v. Whitney, 96 Wash.2d 578, 580, 637 P.2d 956 (1981).   We review the trial court's action for abuse of discretion.  State v. Ellis, 76 Wash.App. 391, 394, 884 P.2d 1360 (1994).

¶ 59 To succeed on a CrR 8.3(b) claim, Fleming must prove by a preponderance of the evidence that he suffered actual, rather than speculative, prejudice that affected his right to a fair trial.   See State v. Rohrich, 149 Wash.2d 647, 657, 71 P.3d 638 (2003).   However, Fleming cannot show that the missing tape caused him prejudice because he did not present evidence that he withdrew from the witness tampering plan at trial.   Furthermore, Fleming has failed to show prosecutorial misconduct.   Therefore, dismissal was not warranted under CrR 8.3 and the trial court did not abuse its discretion.

V. Judicial Bias

¶ 60 Fleming claims that the trial court judge who heard some of his pretrial motions should have recused herself because of her “personal knowledge and bias of ‘disputed [sic] evidentiary facts concerning the proceeding.’ ” 11  PRP at 56.   As evidence, he refers to his 1996 sentencing hearing when the judge said, “We need to bring this back to reality, Mr. Fleming.”   PRP Ex. G3.

¶ 61 The State responds that this comment does not show personal knowledge of disputed facts about the current proceeding.   The State argues that, in 1996, the judge could not have known anything about the facts underlying the instant case, which occurred in 2002.   It claims that there was no basis for the judge to recuse herself.

¶ 62 Before we will find a violation of the appearance of fairness, the record must contain evidence of a judge's actual or potential bias.  State v. Bilal, 77 Wash.App. 720, 722, 893 P.2d 674 (1995).   Fleming fails to make this showing;  the remark he relies on was not an inappropriate comment by a judge at sentencing.   Convicted felons should be encouraged to face the reality of their situation.   In any case, Fleming has not shown that the judge knew anything about his conversation with Evans, the basis for his current charges.

VI. Admission of Duplicate Tape

¶ 63 Fleming argues that the taped telephone conversation with Evans should not have been admitted under ER 1003.   Fleming states that he did not object at trial because he was distracted by fear that the EID device would malfunction.   Fleming contends that the tape of his conversation with Evans was edited and was therefore not a true and correct copy of that conversation.   He claims that he can prove this because fragments of conversation can be heard on the tape before the DOC disclaimer warning listeners that the conversation was recorded.

¶ 64 We review the trial court's admission of evidence for abuse of discretion.   See State v. Lane, 125 Wash.2d 825, 831, 889 P.2d 929 (1995).   Under ER 1003, a duplicate is admissible unless a genuine issue is raised as to the authenticity of the original or, under the circumstances, it would be unfair to admit the duplicate in lieu of the original.  ER 1003.   Here, there is no genuine issue regarding the authenticity of the original;  DOC policy required recording of all calls made by inmates, and copies of those calls were kept for six months.   The chief investigator at Fleming's prison was able to authenticate a copy of the original tape that he had made in furtherance of the investigation of Fleming.   The court admitted a copy of the original tape, ruling that the authentication of the duplicate and the method in which it was made gave it sufficient reliability.

¶ 65 Fleming has not met his burden of showing that the trial court abused its discretion in admitting the duplicate tape, and we reject his argument.

VII. Mental Health Evaluation

¶ 66 Fleming challenges his mental health evaluation, which concluded that he was competent to stand trial.   However, he does not specifically claim that he lacked competence to stand trial.   He argues that the report inaccurately stated that two members of the sanity commission interviewed him for one hour and fifteen minutes.   He states that he never gave this interview and that the report is manufactured.

¶ 67 The State responds that, as the report indicates, the sanity commission relied on extensive previous documentation that included prior WSH reports.

¶ 68 Fleming has not presented sufficient evidence that he was incompetent to stand trial.   Disagreements about details in the report are not relevant absent evidence that the report's ultimate conclusions are erroneous.

VIII. Use of Stun Device and Extra Security Guards

¶ 69 Fleming claims that the trial court deprived him of a fair trial by requiring him to wear a stun device on his leg and by posting extra security without holding a hearing or considering less restrictive alternatives.   He argues that no evidence was presented to establish a compelling necessity for restraint and that the jurors could see the restraints.   He contends that the stun device had a “chilling effect” on his constitutional right to represent himself because his fear that the device would malfunction again distracted him and prevented him from participating in his defense or being meaningfully present at trial.   PRP at 42.   Fleming argues that this type of flaw is not susceptible to harmless error analysis and requires reversal.

¶ 70 A defendant in a criminal case is entitled to appear at trial free from restraints.  State v. Damon, 144 Wash.2d 686, 690, 25 P.3d 418 (2001).   Restraints are viewed with disfavor because they may abridge important constitutional rights, including the presumption of innocence, the privilege of testifying in one's own behalf, and the right to consult with counsel during trial.  Damon, 144 Wash.2d at 691, 25 P.3d 418.   Furthermore, keeping a defendant in restraints during trial may deprive him of the full use of all his faculties.  Damon, 144 Wash.2d at 691, 25 P.3d 418.

¶ 71 The trial court has broad discretion to determine what security measures are necessary to maintain decorum in the courtroom and to protect the safety of its occupants.  Damon, 144 Wash.2d at 691, 25 P.3d 418.   However, the trial court should allow the use of restraints only after conducting a hearing and entering findings that are sufficient to justify their use.  Damon, 144 Wash.2d at 691-92, 25 P.3d 418.   A court abuses its discretion when it orders restraints based solely on concerns expressed by a correctional officer.   Damon, 144 Wash.2d at 692, 25 P.3d 418.   An unconstitutional shackling claim is subject to a harmless error analysis.  State v. Elmore, 139 Wash.2d 250, 274, 985 P.2d 289 (1999).

¶ 72 The mere fact that a jury sees an inmate wearing shackles does not mandate reversal.   See State v. Rodriguez, 146 Wash.2d 260, 270, 45 P.3d 541 (2002).   When the jury's view of a defendant or witness in shackles is brief or inadvertent, the defendant must affirmatively show prejudice.   Elmore, 139 Wash.2d at 273, 985 P.2d 289.

¶ 73 Although the average juror may not have noticed the EID, it was visible as a bulge at Fleming's calf and so the court risked a juror noticing it and discussing it with the other jurors.   See State v. Flieger, 91 Wash.App. 236, 242, 955 P.2d 872 (1998) (error because the jurors noticed the EID and were speculating about it).   Arguably, the trial court should not have taken this chance without first weighing the need for restraint against the risk of prejudice if the jury noticed.

¶ 74 As for the security guards, the trial court essentially relied on DOC, ordering four guards in the courtroom because DOC had assigned four guards to transport Fleming.   Instead of presuming that DOC's procedures should automatically govern in the courtroom, the trial court should have determined the safest level of security based on the danger that Fleming actually posed.   See Damon, 144 Wash.2d at 692, 25 P.3d 418 (error to base a decision on the correctional officer's assessment).

¶ 75 However, any such error was harmless.   The key piece of evidence against Fleming was the tape of his conversation with Evans in which he asks her to convince Ward not to testify.   In light of this overwhelming evidence, the bulge at Fleming's calf and the presence of four uniformed security guards in the courtroom did not prejudice the jury to such an extent that it changed the trial's outcome.

¶ 76 Fleming did not ask the court before trial for alternatives to the EID or claim at trial that the EID affected his concentration.   Rather, Fleming seemed to accept the EID by arguing that, as long as he had the EID, more security officers were not necessary.   When Fleming moved the court during trial to remove the EID, the only reason he offered was that he believed the jury could see it.   He did not claim that the discomfort was affecting his defense.   Therefore, we will not entertain this argument because Fleming did not object at trial on that basis and thereby failed to preserve the issue for appeal.   RAP 2.5(a);  See State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993).

IX. Knowledge Instruction

¶ 77 Fleming claims that jury instruction number seven, defining “knowledge,” misstated the law because the instruction's language differed from the statutory language.   He relies on RCW 9A.08.010(1)(b), which states:

KNOWLEDGE:  A person knows or acts knowingly or with knowledge when:

(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense;  or

(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.

RCW 9A.08.010(1)(b) (emphasis added).

¶ 78 The jury instruction read in part:

A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.

If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.

CP at 35, Instr. 7 (emphasis added).

¶ 79 Fleming argues that it is nonsensical for a “fact, circumstance or result” to be described by law as a crime.   Appellant's Br. at 34.   He claims this is different from the statute, which requires that the fact be described by a criminal statute, not that the fact itself be described as a crime.   He contends that the instruction was confusing and misleading and that the jury was unable to determine the meaning of the term “knowingly.”

¶ 80 However, Fleming did not object at trial to any of the instructions given.   An objection to a jury instruction cannot be raised for the first time on appeal unless the instructional error is of constitutional magnitude.   State v. Dent, 123 Wash.2d 467, 478, 869 P.2d 392 (1994).   Failure to properly instruct the jury on an element of a charged crime is an error of constitutional magnitude that may be raised for the first time on appeal.   State v. Roggenkamp, 153 Wash.2d 614, 620, 106 P.3d 196 (2005).   This rule applies to errors in defining the terms in the “to convict” instruction as well as to the “to convict” instruction itself.   See Roggenkamp, 153 Wash.2d at 620, 106 P.3d 196.   In this case, knowledge was not an element in the “to convict” instruction for witness tampering, but it was part of the accomplice instruction.

¶ 81 Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.  State v. Clausing, 147 Wash.2d 620, 626, 56 P.3d 550 (2002).   We review the adequacy of jury instructions de novo as a question of law.  Clausing, 147 Wash.2d at 626-27, 56 P.3d 550.   Instructional error is presumed to be prejudicial unless it affirmatively appears to be harmless.  Clausing, 147 Wash.2d at 628, 56 P.3d 550.

¶ 82 In this case, we find no error in the instruction.   The language in the jury instruction is not significantly different from the language in the statute.   Both refer to facts or circumstances that are crimes.   Whether the facts are described “by law as being a crime” or in a “statute defining an offense,” the meaning is the same.

X. Misleading Instruction About the Jury's Power to Acquit

¶ 83 Fleming argues that juries have the power to acquit, even if the not-guilty verdict is contrary to the law and the evidence.   He acknowledges that a court need not inform jurors of this power.   However, he argues that an instruction telling the jurors that they may not acquit if the elements have been established affirmatively “misstates the law and deceives the jury as to its own power.”   Appellant's Br. at 29-30.   He argues that the factors identified in State v. Gunwall, 106 Wash.2d 54, 61-62, 720 P.2d 808 (1986), demonstrate that article I, sections 21 12 and 22 13 of the Washington Constitution prohibit a trial court from affirmatively misleading a jury about its power to acquit.

¶ 84 Fleming objects to the trial court's instruction to the jurors that it was their “duty” to accept the law and that it was their “duty” to convict if the elements were proved beyond a reasonable doubt.   CP at 27, 39.   He claims that using the word “duty” meant that the jury could not acquit if the elements had been established.

¶ 85 The State argues that both Division One and Division Two have rejected Fleming's arguments.   See State v. Meggyesy, 90 Wash.App. 693, 699-700, 958 P.2d 319 (1998), overruled on other grounds, State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005) overruled by Wash. v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006);  State v. Bonisisio, 92 Wash.App. 783, 794, 964 P.2d 1222 (1998).  Meggyesy and Bonisisio both held that altering the instructions to tell the jury it “may” convict is equivalent to notifying the jury of its power to acquit against the evidence.  Meggyesy, 90 Wash.App. at 699-700, 958 P.2d 319;  Bonisisio, 92 Wash.App. at 794, 964 P.2d 1222.

¶ 86 Fleming tries to distinguish his case from Meggyesy and Bonisisio by saying that, in Meggyesy, the appellants argued that the instructions were unconstitutional.   He claims to argue here only that the instructions were misleading.

¶ 87 After the briefing in this case, we published State v. Brown, 130 Wash.App. 767, 124 P.3d 663 (2005).   In that case, we rejected the exact argument Fleming makes here:

We find no meaningful difference between Brown's argument and the issues raised in Bonisisio and Meggyesy.   The Meggyesy court, although addressing a slightly different argument, held that instructing the jury it had a “duty” to convict if it found the elements were proved beyond a reasonable doubt did not misstate the law.  Meggyesy, 90 Wash.App. at 700-01, 958 P.2d 319. And in Bonisisio, 92 Wash.App. at 794, 964 P.2d 1222, we held that the trial court did not err in instructing the jury that it had a duty to convict if it found that the State had proved all the elements beyond a reasonable doubt.   Further, the purpose of a jury instruction is to provide the jury with the applicable law to be applied in the case.  State v. Borrero, 147 Wash.2d 353, 362, 58 P.3d 245 (2002).   The power of jury nullification is not an applicable law to be applied in a second degree burglary case.   We reject Brown's argument that the court erred in giving the “duty” instruction.

Brown, 130 Wash.App. at 771, 124 P.3d 663.

¶ 88 We also reject Fleming's state constitutional arguments.   The court in Meggyesy applied the six-step analysis set forth in Gunwall and found no independent state constitutional basis to invalidate the challenged instructions.  Meggyesy, 90 Wash.App. at 703-04, 958 P.2d 319.

XI. Accomplice Instruction

¶ 89 Fleming argues that the accomplice jury instruction misstated the law because it did not instruct the jury that accomplice liability requires an overt act.   Instead, he claims that the court wrongly allowed the jury to convict him if he was present and ready to assist-whether or not he did or said anything.

¶ 90 A person is guilty as an accomplice if, “[w]ith knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it;  or (ii) aids or agrees to aid such other person in planning or committing it.”  RCW 9A.08.020(3)(a).   Criminal liability applies equally to a principal and an accomplice because they share equal responsibility for the substantive offense.  RCW 9A.08.020(2)(c);  State v. Rodriguez, 78 Wash.App. 769, 772-73, 898 P.2d 871 (1995).

¶ 91 “Mere presence at the scene of a crime, even if coupled with assent to it, is not sufficient to prove complicity.   The State must prove that the defendant was ready to assist in the crime.”  State v. Luna, 71 Wash.App. 755, 759, 862 P.2d 620 (1993) (citing State v. Rotunno, 95 Wash.2d 931, 933, 631 P.2d 951 (1981)).   The intent to facilitate another in committing the crime by providing assistance through presence and actions makes an accomplice criminally liable.  State v. Trout, 125 Wash.App. 403, 410, 105 P.3d 69 (2005).

¶ 92 Jury instructions are sufficient when, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the parties to argue their theory of the case. State v. Tili, 139 Wash.2d 107, 126, 985 P.2d 365 (1999).   The jury instruction on accomplice liability was proper because it adequately stated the law.   When read as a whole, it explained that “more than mere presence and knowledge of the criminal activity must be shown.”   CP at 34;  Instr. 6. Furthermore, there was no evidence that Fleming might have been a mere bystander;  the tape reveals that he actively tried to keep the State's witness from the trial.

XII. Cumulative Error

¶ 93 Fleming claims that the combined effect of the errors at trial requires a new trial.

¶ 94 The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary.  In re Pers. Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964 (1994).   Fleming has not met his burden.   The only error at trial was the trial court's failure to make specific findings regarding restraints and that in and of itself is not sufficient.

¶ 95 Affirmed.

FOOTNOTES

1.   This assault charge was later dropped.

2.   RCW 4.12.050 provides:Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge:  PROVIDED, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion, but the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail, shall not be construed as a ruling or order involving discretion within the meaning of this proviso[.]

3.   This prior shock occurred as Fleming was receiving his competency evaluation at WSH. Fleming provided two letters from doctors who witnessed the shock.

4.   RCW 9A.08.020(5) states:Unless otherwise provided by this title or by the law defining the crime, a person is not an accomplice in a crime committed by another person if:․(b) He terminates his complicity prior to the commission of the crime, and either gives timely warning to the law enforcement authorities or otherwise makes a good faith effort to prevent the commission of the crime.

5.   Instead, he provided an affidavit from Evans saying:I called George Gilbert at WCC, and asked him if I Could [sic] Purchase [sic] a copy of the very next phone call after the 03/20/2002 phone call, but he told me he destroyed all phone tapes after six months, and that since six months had passed since that and other phone recordings had been made, that it had all been destroyed.PRP Ex. A3.Fleming himself also provided an affidavit saying:  “I attempted to get copies of the hundreds of exculpatory recordings, but was told they would cost 15.00 per tape.   I was not allowed to motion for an expenditure of public funds to purchase these hundreds of phone recordings tapes, and I had no personal funds to use.”   PRP Ex. A4.

6.   RCW 9.73.095(3)(c) provides:All conversations that are recorded under this section, unless being used in the ongoing investigation or prosecution of a crime, or as is necessary to assure the orderly operation of the correctional facility, shall be destroyed one year after the intercepting and recording.

7.   The record shows that in July 2002, Fleming tried to obtain a “180 dissolution” of his felony untried indictment pursuant to RCW 9.98.010.   CP 131-140.Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred twenty days after he shall have caused to be delivered to the prosecuting attorney and the superior court of the county in which the indictment, information, or complaint is pending written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint[.]RCW 9.98.010(1).   Presumably Fleming's requests failed because he had not yet been charged.   The first record of his attempt to secure the tapes of his telephone calls was in a pro se motion for discovery filed December 4, 2003, a few weeks after the information was filed.

8.   Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

9.   The exhibits Fleming submitted suggest that DOC intercepted this correspondence because his aunt's address was the same as his grandmother's and a no-contact order was in place for his grandmother.

10.   CrR 8.3(b) states: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.   The court shall set forth its reasons in a written order.

11.   Fleming filed an affidavit of prejudice, which the judge denied because she had already made a discretionary ruling.   It appears his argument now is that she should have recused herself because of her “personal knowledge and bias.”   PRP at 56.

12.   The Washington Constitution provides:The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.Wash. Const. art.   I, § 21.

13.   The Washington Constitution provides:In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases.Wash. Const. art.   I, § 22.

PENOYAR, J.