STATE v. EGGLESTON (2005)

PART-PUBLISHED OPINION

¶ 1 Brian Eggleston appeals his convictions of second degree murder and first degree assault following shootings that occurred during the execution of a search warrant at his residence on October 16, 1995.   We affirm the convictions but vacate Eggleston's sentences and remand for resentencing.

FACTS

¶ 2 In August 1995, Pierce County Deputy Sheriff Ben Benson began investigating Eggleston's marijuana dealing based on information he received from Steve McQueen.   McQueen said that Eggleston's brother was a deputy sheriff and was present during one buy at Eggleston's house.   Benson confirmed that Deputy Sheriff Brent Eggleston shared his brother's address.

¶ 3 Benson then arranged for McQueen to buy marijuana from Eggleston.   In early October 1995, McQueen bought marijuana from Eggleston twice.   On October 9, Benson obtained a warrant to search Eggleston's home.   He decided to serve the warrant early on October 16, before Eggleston was fully awake and before children arrived at the elementary school across the street from the Eggleston residence.

¶ 4 The entry team included Deputies John Bananola, Warren Dogeagle, Jeff Reigle, John Reding, Cynthia Fajardo, Martin Kapsh, and Bruce Larson.   Benson was to provide perimeter surveillance.   The team wore marked jackets that identified them as sheriff deputies.   Bananola wore a reflective vest that had four inch letters stating “Sheriff” on the front and back.   He also had long hair and facial hair because of his undercover work.   Reding wore a vest with “Sheriff” on the front and back, a helmet with a face shield, and black pants.   Dogeagle wore a hooded mask because he was working undercover on a case involving heroin dealers in the same neighborhood.   He also wore a cap with a sheriff's insignia and a green raid jacket with “Sheriff” on the front and back.   Fajardo wore a black uniform that said “Narcotics” and her name on the front, and Reigle wore a green raid jacket with “Sheriff” on the front and back.

¶ 5 The deputies entered the unlocked back door of the residence using the knock and announce procedure.   Reding went in first and saw Thomas Eggleston, Eggleston's father, on the couch in the living room.   Bananola followed and turned down a hallway.   As Reigle prepared to follow Bananola, gunfire erupted.   Reigle saw Bananola heading toward the front door of the residence in a low position.   Reigle then saw Linda Eggleston open a door into the kitchen and look at him.   He heard Thomas Eggleston tell her to put the gun down.

¶ 6 While covering Thomas Eggleston in the living room, Reding heard the shots and turned to see Bananola coming from the hallway in an upright position and then start to stumble.   Reding retreated toward the back door and saw Eggleston move toward the living room with a gun in his hands.   Reding fired three shots at him.

¶ 7 As the deputies withdrew, Dogeagle heard Bananola say, “Put the gun down.   Police.”  Report of Proceedings (RP) at 4419-21.   Dogeagle was still in the kitchen when Eggleston came through a door and started shooting at him.   Dogeagle returned fire and Eggleston fell backward.

¶ 8 Reding returned to the van to retrieve a ballistic shield and entered the house with the other deputies behind him.   They saw Bananola lying face down on the living room floor.   He had been shot seven times, with three shots to the head and shots to the shoulder, arm, chest, and foot.   Eggleston suffered five gunshot wounds, including wounds to his chest, lower right side, abdomen, groin and knee.   Eggleston recovered;  Bananola died.

¶ 9 In addition to evidence of the shootings, Tacoma police officers found drugs, drug paraphernalia and cash in Eggleston's bedroom.

¶ 10 The State charged Eggleston by amended information with aggravated murder in the first degree, alleging that he knew or should have known that Bananola was a law enforcement officer performing his duties at the time of his death;  assault in the first degree based on his shooting at Dogeagle and/or Reding;  unlawful delivery of a controlled substance (marijuana) on October 7, 1995;  unlawful possession of a controlled substance with intent to deliver (marijuana) on October 16, 1995;  unlawful delivery of a controlled substance (marijuana) on October 5, 1995;  and unlawful possession of a controlled substance (mescaline) on October 16, 1995.   Several of these counts included sentence enhancements.

¶ 11 These charges resulted in three trials.   The first jury returned guilty verdicts on all counts except count I, murder in the first degree.   The jury hung on the murder count and the court declared a mistrial.   The trial judge sentenced Eggleston on the five counts for which he had been convicted.

¶ 12 The State tried Eggleston again on the first degree murder charge, and the jury found him guilty of the lesser included offense of murder in the second degree.   The court had explicitly instructed that if the jury found Eggleston guilty of murder in the first degree, it was to fill out two special verdict forms:  one on the aggravating factor (whether he knew or reasonably should have known that Bananola was an officer), and another on the weapons enhancement (whether he used a deadly weapon).   In contrast, if the jury found Eggleston guilty of murder in the second degree, it was to fill out only the weapons enhancement special verdict form.   Despite its acquittal of the first degree murder charge, the jury answered “no” to the aggravating circumstance special verdict.   Clerk's Papers (CP) at 1495.

¶ 13 Further, the aggravating factor special verdict form expressly stated:

We, the jury, having found the defendant guilty of Murder in the First Degree, make the following answer to the question submitted by the court:

Question:  Has the State proven the existence of the following aggravating circumstance beyond a reasonable doubt?

That Deputy John Bananola was a law enforcement officer who was performing his official duties at the time of the act resulting in death and that Deputy John Bananola was known or reasonably should have been known by the defendant to be such at the time of the killing.

Answer:  No.

CP at 1495 (emphasis added).

¶ 14 On appeal, we reversed Eggleston's murder and assault convictions but affirmed his drug convictions.  State v. Eggleston, No. 22085-7-II, No. 23499-8-II, 108 Wash.App. 1011, 2001 WL 1077846 (Wash.Ct.App. Sept.4, 2001) (unpublished).   We found error in the aggressor and provocation instructions;  we also found juror misconduct in the second trial and error in certain evidentiary rulings.

¶ 15 At Eggleston's third trial, the State's reconstruction expert, Rod Englert, opined that Eggleston fired into Bananola's head as Bananola lay on the living room floor.   The defense reconstruction expert, Kay Sweeney, opined that Eggleston was in the hallway when he fired at and killed Bananola.   In December 2002, the jury again convicted Eggleston of second degree murder and first degree assault.

¶ 16 In this appeal, Eggleston argues that the second jury's verdict and answer to the special verdict barred the State from presenting evidence in his third trial that he knew Bananola was a police officer or that he premeditated the murder.   He also questions the self-defense instructions;  various evidence rulings;  the dismissal of three jurors;  jury misconduct;  resentencing on his drug convictions;  and his exceptional sentence.

ANALYSIS

I. Collateral Estoppel

¶ 17 Eggleston argues that the collateral estoppel component of the double jeopardy clause precluded the State from introducing evidence that he knew Bananola was an officer performing official duties because previous juries acquitted him of first degree murder and the aggravating factor after being presented with that evidence.¹

A. Collateral Estoppel as a Component of Double Jeopardy Clause

 ¶ 18 The United States and Washington Constitutions' double jeopardy clauses are “identical in thought, substance, and purpose.”  State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959);  see Wash. Const.. art.   I, § 9;  U.S. Const., amend.   V. They both “ ‘protect against multiple punishments for the same offense, as well as against a subsequent prosecution for the same offense after acquittal or conviction.’ ” State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005) (quoting In re Pers. Restraint of Orange, 152 Wash.2d 795, 815, 100 P.3d 291 (2004)).   Where the language of the state constitution is similar to that of the federal constitution, we give the same interpretation to the state constitutional provision as the United States Supreme Court has given the federal constitution.  State v. Linton, 122 Wash.App. 73, 76, 93 P.3d 183 (2004) (citing Schoel, 54 Wash.2d at 391, 341 P.2d 481), review granted, 153 Wash.2d 1017, 108 P.3d 1229 (2005).

 ¶ 19 The doctrine of collateral estoppel is embodied in the constitutional guaranty against double jeopardy.  Ashe v. Swenson, 397 U.S. 436, 442-43, 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.   But it does not always bar the later use of evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.   See Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).

 ¶ 20 Collateral estoppel in criminal cases is “not to be applied with a hypertechnical and archaic approach ․ but with realism and rationality.”  Ashe, 397 U.S. at 444, 90 S.Ct. 1189.   It exists where “ ‘a fact necessarily determined in the defendant's favor by his earlier acquittal [makes] his conviction on the challenged second trial ․ impossible unless the fact could be relitigated and determined adversely to the defendant.’ ” United States v. James, 109 F.3d 597, 601 (9th Cir.1997) (quoting Pettaway v. Plummer, 943 F.2d 1041, 1046 (9th Cir.1991)), overruled on other grounds, Santamaria v. Horsley, 133 F.3d 1242, 1245 (1998);  United States v. Head, 697 F.2d 1200, 1205 (4th Cir.1982).   In contrast, “double jeopardy guarantees are not engaged by collateral estoppel which, if applied, would merely restrict proof but not make conviction impossible.”  James, 109 F.3d at 601 (quoting Pettaway, 943 F.2d at 1046).   The preclusive effect of a jury's verdict is a question of law that we review de novo.   See State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996) (stating that we review issues of law de novo).

¶ 21 The State argues that Eggleston must satisfy the collateral estoppel test as laid out in State v. Tili, 148 Wash.2d 350, 361, 60 P.3d 1192 (2003).   There, the court cited a collateral estoppel test, in which the court held that each of the following questions must be answered affirmatively before a court applies collateral estoppel:

(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question?  (2) Was there a final judgment on the merits?  (3) Was the party against whom the plea of collateral estoppel is asserted a party or in privity with the party to the prior adjudication?   (4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?

Tili, 148 Wash.2d at 361, 60 P.3d 1192 (citing Rains v. State, 100 Wash.2d 660, 665, 674 P.2d 165 (1983)).

¶ 22 Only factor (1) is at issue here, whether the third jury necessarily decided the same issue the second jury decided.   Because Eggleston analyzes the issue within the framework of federal law and we have found no Washington case on point, we resolve the question on the basis of the federal cases.

B. Relitigating Ultimate Facts

 ¶ 23 After a jury determines an issue by its verdict, the State cannot “constitutionally hale [a defendant] before a new jury to litigate that issue again.”  Ashe, 397 U.S. at 446, 90 S.Ct. 1189.   In Ashe v. Swenson, three or four armed and masked men robbed six men who were playing poker.  Ashe, 397 U.S. at 437, 90 S.Ct. 1189.   The State charged Ashe with the robbery of one of the victims.  Ashe, 397 U.S. at 438, 90 S.Ct. 1189.   At trial, the judge instructed the jury that if it found that Ashe was one of the participants in the robbery, he was guilty even if he had not personally robbed the victim.   Ashe, 397 U.S. at 439, 90 S.Ct. 1189.

¶ 24 A jury acquitted Ashe, and the State then charged and convicted him of robbing another one of the previously named victims. Ashe, 397 U.S. at 439, 90 S.Ct. 1189.   Applying collateral estoppel, the Supreme Court reversed, holding that Ashe's acquittal in the first trial foreclosed the second trial because the acquittal verdict could have meant only that the jury was unable to conclude beyond a reasonable doubt that Ashe was one of the bandits.  Ashe, 397 U.S. at 445, 90 S.Ct. 1189.   And to convict at the second trial, the jury would have had to reach a conclusion “directly contrary” to the first jury's decision.  Dowling, 493 U.S. at 348, 110 S.Ct. 668 (citing Ashe, 397 U.S. at 445, 90 S.Ct. 1189).

¶ 25 The Supreme Court limited Ashe in Dowling where it held that acquittal in a criminal case does not preclude the prosecution from offering evidence from the acquittal trial in a later action if the ultimate fact issues are not the same and the government does not have to prove beyond a reasonable doubt in the second trial the very issue it failed to prove beyond a reasonable doubt in the first trial.  Dowling, 493 U.S. at 348-49, 110 S.Ct. 668.   Furthermore, evidence tending to prove an issue is admissible when an acquittal on a criminal charge in an earlier proceeding did not necessarily represent a jury determination of that issue.   See Dowling, 493 U.S. at 350, 110 S.Ct. 668.

¶ 26 A jury convicted Dowling of robbing a bank while wearing a ski mask and carrying a pistol after the government introduced testimony from a woman who claimed that Dowling, similarly masked and armed, was one of two intruders who entered her home two weeks after the bank robbery-even though Dowling had previously been acquitted of the charges in that case.  Dowling, 493 U.S. at 344-45, 110 S.Ct. 668.   The government relied on Federal Rules of Evidence 404(b), which provides that evidence of other crimes, wrongs, or acts may be admissible against a defendant for purposes other than character evidence.   See Dowling, 493 U.S. at 345, 110 S.Ct. 668.   It used the woman's testimony to strengthen its identification of Dowling as the bank robber and to link him to another person implicated in the bank robbery.  Dowling, 493 U.S. at 345, 110 S.Ct. 668.

¶ 27 The Supreme Court held that admitting the woman's testimony did not violate the collateral estoppel component of the double jeopardy clause because the prior acquittal did not determine an issue of ultimate fact actually decided in the bank robbery case.  Dowling, 493 U.S. at 348, 110 S.Ct. 668.   While Dowling's previous acquittal established that there was a “reasonable doubt” as to whether he was the masked man who entered the woman's house, in the context of the robbery trial, the government did not have to prove that he was one of the intruders beyond a reasonable doubt.  Dowling, 493 U.S. at 348, 110 S.Ct. 668.   The Court reasoned that because a jury might reasonably conclude that Dowling was the man who entered the woman's home, even if it did not believe beyond a reasonable doubt that he committed the crimes charged at the first trial, the collateral estoppel component of the double jeopardy clause was inapposite.²  Dowling, 493 U.S. at 349, 110 S.Ct. 668.

¶ 28 Later, in Santamaria v. Horsley, the Ninth Circuit clarified that “collateral estoppel does not ‘exclude in all circumstances ․ relevant and probative evidence that is otherwise admissible under the Rules of Evidence.’ ” Santamaria v. Horsley, 133 F.3d 1242, 1247 (9th Cir.1998) (citing Dowling, 493 U.S. at 348, 110 S.Ct. 668).   In that case, a jury found a defendant guilty of murder and robbery but found “not true” a sentence enhancement charge that he personally used a knife in the commission of a felony. See Santamaria, 133 F.3d at 1244.

¶ 29 A state appellate court reversed Santamaria's murder conviction, and on remand, the trial court granted Santamaria's motion to preclude evidence that he personally used the knife during the killing.   See Santamaria, 133 F.3d at 1244.   The trial court agreed with Santamaria that the collateral estoppel component of the double jeopardy clause barred evidence that he used a knife because a jury had already decided that issue in his favor in the first trial.  Santamaria, 133 F.3d at 1244.

¶ 30 But the Ninth Circuit held that the first jury could have grounded its verdict on an issue other than that which Santamaria sought to foreclose from consideration in the second trial.  Santamaria, 133 F.3d at 1246.   Specifically, even though Santamaria had been acquitted of using a knife, the State was not required to prove beyond a reasonable doubt that he used a knife to obtain a conviction for murder under California law.   Santamaria, 133 F.3d at 1247.   Thus, whether he used a knife was not relitigated under the same standard at the retrial, and the State could not be precluded from presenting otherwise admissible evidence that he stabbed the victim.  Santamaria, 133 F.3d at 1247.³

¶ 31 Eggleston argues that because in the second trial the State offered evidence that he knew Bananola was a police officer in order to prove premeditation and the second jury acquitted him of premeditated first degree murder, the third trial court should have precluded the State from using evidence that he knew Bananola was a police officer.⁴  He also points out that the second jury specifically rejected the aggravating factor by answering “no” to the special verdict question of whether the State had proven that Eggleston knew Bananola was a police officer.   Eggleston reasons that because of these decisions, the State improperly relitigated the aggravating factor at the third trial, citing Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.1991).

¶ 32 In Pettaway, the jury convicted the defendant of murder and attempted murder but found in a special verdict that he had not personally shot the deceased.  Pettaway, 943 F.2d at 1043.   The Court of Appeals reversed the murder conviction.  Pettaway, 943 F.2d at 1043.   On remand, Pettaway moved to preclude the State from prosecuting him on the theory that he personally fired the fatal shot.  Pettaway, 943 F.2d at 1043.   The trial judge granted the motion.  Pettaway, 943 F.2d at 1043. The Ninth Circuit upheld that ruling, holding that the first jury necessarily decided that Pettaway did not personally shoot the victim and that the State could not prosecute him on a theory that would require the second jury to decide that he did shoot the victim. Pettaway, 943 F.2d at 1046.   But the Ninth Circuit reversed Pettaway in Santamaria, explaining that although the ultimate fact of whether the State had proven the weapon use beyond a reasonable doubt for the weapons enhancement had been determined, that determination did not necessarily mean that the jury had found Pettaway guilty of murder only as an aider and abetter.  Santamaria, 133 F.3d at 1245-46.   Similarly, Pettaway does not prevent the State from offering evidence that Eggleston intended to kill Bananola because he was a police officer.

1. The Effect of the Second Jury's Acquittal of First Degree Murder

 ¶ 33 In the second trial, the State offered evidence that Eggleston knew Bananola was a police officer in order to prove premeditation.   But the State did not have to prove that Eggleston knew Bananola was a police officer to establish premeditation.   Premeditated killing is an intentional killing where the defendant, however briefly, considers the consequences of his acts.   See State v. Brooks, 97 Wash.2d 873, 876, 651 P.2d 217 (1982) (explaining that the verb “premeditate” encompasses the mental process of thinking beforehand for a period of time, deliberation, reflection, weighing or reasoning for a period of time, however short);  but see RCW 9A.32.020(1) (the premeditation required in order to support a conviction of the crime of first degree murder must involve more than a moment in point of time).

 ¶ 34 Unlike in Ashe where the jury necessarily decided that Ashe was not one of the participants in the robbery, the jury in Eggleston's second trial could have found that Eggleston did not know that Bananola was a police officer and still convicted him of premeditated, intentional killing.   Conversely, it could have found that he knew Bananola was a police officer and intentionally killed him without the time or opportunity to premeditate.   Thus, the second jury's first degree murder acquittal does not alone mean the jury necessarily decided whether Eggleston knew Bananola was a police officer.

 ¶ 35 Nor did the third jury necessarily decide whether Eggleston knew Bananola was a police officer.   In the third trial, the State charged Eggleston with second degree murder.   A person commits second degree murder when “with intent to cause the death of another person but without premeditation, he or she causes the death of such person unless the killing is justifiable.”   CP at 774 (emphasis added);  cf.  RCW 9A.32.050. Again, the third jury could have decided that Eggleston intentionally killed Bananola without knowing whether he was a police officer or an intruder.   Regardless, under cases like Dowling and Santamaria, the State was not barred from using evidence that was relevant to showing premeditation for first degree murder, including evidence that he knew Bananola was an officer if it was also relevant and admissible to showing intent for second degree murder.

2. The Effect of the Second Jurys Answer on the Special Verdict Form

 ¶ 36 Although the court instructed the second jury to answer the special verdict only if it convicted Eggleston of first degree murder, the second jury answered the special verdict after acquitting Eggleston of first degree murder.   Specifically, the jury found that the State had not proved beyond a reasonable doubt that Eggleston knew Bananola was a police officer.   The question is whether the jury's gratuitous answer is a decision on an issue of ultimate fact that bars a later jury from considering the same ultimate fact.⁵

¶ 37 Here, the second jury's answer is a bar only if it answered an issue of ultimate fact necessary to a valid and final judgment.   See James, 109 F.3d at 601;  cf.  Ashe, 397 U.S. at 443, 90 S.Ct. 1189 (discussing issues of ultimate fact determined by valid and final judgment).   In Ashe, the jury rendered general verdicts.   In considering whether the first jury decided the same issue as the second jury, the Court had to determine whether the first jury actually decided the issue to reach its verdict.   Ashe, 397 U.S. at 445, 90 S.Ct. 1189;  see also Dowling, 493 U.S. at 348, 110 S.Ct. 668.   As part of this inquiry, the Court asked whether the issue in the first trial was an issue of ultimate fact that the jury had to resolve to reach a general verdict of “guilty” or “not guilty.”   See Ashe, 397 U.S. at 443, 90 S.Ct. 1189;  see also Dowling, 493 U.S. at 348, 110 S.Ct. 668.

 ¶ 38 While the Ashe Court may have formulated this test solely to determine which issues the first jury actually decided, the Ninth Circuit has reiterated that the collateral estoppel rule is limited to questions “necessarily decided” in the first case.   Cf. Hernandez, 572 F.2d at 220;  Schwartz, 785 F.2d at 681;  James, 109 F.3d at 600.   In other words, an initial jury's response to a question it does not legally have to decide does not preclude a later jury from considering the same issue.⁶  Here, the second jury did not legally have to decide the aggravating factor.   In fact, it did so in violation of the court's instructions. Arguably then, the second jury's answer to the special verdict question was not a decision on an issue of ultimate fact that precluded the third jury from considering the same issue.

¶ 39 Even if the jurys answer on the aggravating factor was a binding decision on an issue of ultimate fact, Eggleston has not shown that the third jury decided the same issue differently.   The third jury found that Eggleston intentionally shot and killed Bananola.   It could have reached this decision without deciding whether he knew Bananola was a police officer.   Eggleston may have intentionally shot Bananola, knowing that he was a police officer, to avoid arrest and prosecution.   Or he could have shot Bananola, believing him to be an intruder, to protect his stash of drugs.   Nothing in the third jury's verdict tells us that the third jury necessarily decided the special verdict question differently than the second jury.

 ¶ 40 Under Dowling and Santamaria, the State was entitled to show in Eggleston's third trial that he intended to kill Bananola because Bananola was a police officer.   And although the State used the same evidence in attempting to prove premeditation at second trial, Eggleston's knowledge of Bananola's official status was not an ultimate fact the State had to prove in order to convict Eggleston of either first or second degree murder.   Thus, the State could use the same evidence in the third trial to prove Eggleston's intent.⁷

3. Self-Defense Instructions

¶ 41 Eggleston argues that the trial court erred when it instructed the jury that if he knew or should have known that Bananola was a police officer, he could use deadly force to defend himself only if he was in actual and imminent danger of death or great bodily harm.   Under this instruction, Eggleston could not rely on a reasonable belief that he was in danger;  he had to be in actual danger to justify the use of deadly force.   Again, he argues that the second jury decided that the State failed to prove he knew Bananola was a police officer and that the challenged instructions erroneously allowed the third jury to decide the same issue differently.

¶ 42 Eggleston's self-defense theory was that he thought the deputies were thugs who were threatening his life and his family and that he was entitled to use deadly force in self-defense.   He maintained that he used reasonable force under the circumstances.⁸  The State's rebuttal theory was that Eggleston had no right to use any force against the deputies who entered his house because he knew they were law enforcement officers and because they used lawful force in performance of a lawful duty-serving a search warrant.

¶ 43 Accordingly, the court gave the jury two alternative instructions on self-defense.   Instruction 13 explained that homicide is justifiable when it is committed in the lawful defense of the slayer, and

(1) the slayer did not know that the person slain was a law enforcement officer;

(2) the slayer reasonably believed that the person slain intended to commit a felony or to inflict death or great personal injury;

(3) the slayer reasonably believed that there was imminent danger of such harm being accomplished[.]

CP at 777 (emphasis added).

¶ 44 Instruction 14 explained that homicide is justifiable when,

(1) the slayer knew that the person slain was a law enforcement officer;

․

(3) the slayer was in actual and imminent danger of death or great bodily harm[.]

CP at 778 (emphasis added).

¶ 45 Eggleston has the burden of showing that the second and third juries decided the same issue differently to establish a collateral estoppel/double jeopardy violation.   See James, 109 F.3d at 601.   But because the jury returned a general verdict on second degree murder in the third trial, we do not know which self-defense theory the State overcame.   The third jury may have agreed with the second jury that the State had not proven that Eggleston knew Bananola was a police officer.   Even so, the third jury could have easily believed that Eggleston executed Bananola with two shots to the head after Bananola was down and seriously disabled.   If so, the jury could have concluded that Eggleston faced neither actual nor apparent harm when he killed Bananola.   Again, Eggleston has failed to show that the third jury decided the same issue of ultimate fact differently than the second jury.

 ¶ 46 Moreover, Eggleston did not challenge the self-defense instructions on this basis at the trial court, nor did he make any claim of error based on collateral estoppel.   Generally, we will not address a new issue on appeal unless the defendant can demonstrate that it involves a manifest error affecting a constitutional right.  RAP 2.5(a)(3);  State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995).   Under RAP 2.5(a)(3), a defendant must show how an alleged constitutional error actually affected his rights at trial.   See McFarland, 127 Wash.2d at 334, 899 P.2d 1251.   It is this showing of actual prejudice that makes the error “manifest.”  McFarland, 127 Wash.2d at 333, 899 P.2d 1251 (citing State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988)).   A “manifest” error is “unmistakable, evident or indisputable, as distinct from obscure, hidden or concealed.”  State v. Lynn, 67 Wash.App. 339, 345, 835 P.2d 251 (1992).   If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.   McFarland, 127 Wash.2d at 333, 899 P.2d 1251 (citing State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993)).  “An appellant who claims manifest constitutional error must show that the outcome likely would have been different, but for the error.”  State v. Jones, 117 Wash.App. 221, 232, 70 P.3d 171 (2003).

 ¶ 47 Eggleston has not shown that the third jury's verdict was the result of any alleged error in the self-defense instructions. A reasonable jury could have concluded that Eggleston was not acting in self-defense, regardless of whether he knew Bananola was an officer.   The State presented evidence that Eggleston shot Bananola in the head while he lay disabled on the floor.   If the jury accepted this, it could reasonably find that Bananola posed neither an actual nor apparent threat of harm to Eggleston.   Accordingly, Eggleston has not shown that he was actually prejudiced by instruction 14 or the admission of evidence that he knew Bananola was an officer;  therefore, he has not demonstrated manifest constitutional error.

¶ 48 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.

II. Jury Instructions

¶ 49 Eggleston argues that instructions 14, 15, 17, 19, and 20 deprived him of his self-defense claim.   In addition, he asserts that these instructions, along with the court's pretrial ruling barring evidence undermining the legality of the search, “[took] a critical element from the jury:  whether the officers were acting lawfully.”   Br. of Appellant at 90.9

¶ 50 We review alleged errors of law in a trial court's jury instructions de novo.  State v. Willis, 153 Wash.2d 366, 370, 103 P.3d 1213 (2005).   Instructions are inadequate if they prevent a party from arguing its theory of the case, mislead the jury, or misstate the applicable law.  Barrett, 152 Wash.2d at 266, 96 P.3d 386 (citing Bell v. State, 147 Wash.2d 166, 176, 52 P.3d 503 (2002));  see also State v. Tili, 139 Wash.2d 107, 126, 985 P.2d 365 (1999).   Failure to permit instructions on a party's theory of the case, where there is evidence supporting the theory, is reversible error.   Barrett, 152 Wash.2d at 266-67, 96 P.3d 386 (citing State v. Williams, 132 Wash.2d 248, 259-60, 937 P.2d 1052 (1997)).   Further, a jury instruction misstating the law of self-defense amounts to error of constitutional magnitude and is presumed prejudicial.  State v. Walden, 131 Wash.2d 469, 473, 932 P.2d 1237 (1997) (citing State v. LeFaber, 128 Wash.2d 896, 900, 913 P.2d 369 (1996)).

A. The Law of Self-Defense

¶ 51 Self-defense has at least the following elements:

(1) At the time of the event the defendant must subjectively believe that he or she is (a) in imminent danger of great personal injury and (b) responding with only that degree of force necessary to repel the danger;  and (2) these subjective beliefs must be such that a reasonable person considering only the circumstances known to the defendant at the time would also have entertained them.

State v. Bergeson, 64 Wash.App. 366, 370, 824 P.2d 515 (1992).

¶ 52 Police officers are entitled to use reasonable force in performing their legal duties.   See RCW 9A.16.020(1).   Serving a search warrant is a lawful duty.   See chapter 10.79 RCW;  State v. Richards, 136 Wash.2d 361, 371, 962 P.2d 118 (1998).   An arrestee may defend against official force only when he is about to be seriously injured or killed.   See Valentine, 132 Wash.2d at 20-21, 935 P.2d 1294 (citing State v. Westlund, 13 Wash.App. 460, 467, 536 P.2d 20(1975)).   In a lawful arrest, the arrestee is not entitled to rely on appearances.  State v. Ross, 71 Wash.App. 837, 842, 863 P.2d 102 (1993) (citing Westlund, 13 Wash.App. at 466, 536 P.2d 20);  cf.  City of Seattle v. Cadigan, 55 Wash.App. 30, 37, 776 P.2d 727 (1989) (concerning the requirement of actual danger).

¶ 53 A reasonable but mistaken belief that the arrestee is about to be seriously injured or that the arrestee is entitled to protect himself from such danger is insufficient.  Ross, 71 Wash.App. at 842, 863 P.2d 102 (citing Westlund, 13 Wash.App. at 466, 536 P.2d 20);  Cadigan, 55 Wash.App. at 37, 776 P.2d 727.   Rather, an arrestee is justified in resisting a police officer's excessive force in making a lawful arrest only if he is actually about to be seriously injured.  Ross, 71 Wash.App. at 842, 863 P.2d 102 (citing Cadigan, 55 Wash.App. at 37, 776 P.2d 727);  see also State v. Holeman, 103 Wash.2d 426, 430, 693 P.2d 89 (1985) (citing Westlund, 13 Wash.App. at 467, 536 P.2d 20).

¶ 54 To raise self-defense before a jury, “a defendant bears the initial burden of producing some evidence which tends to prove that the killing occurred in circumstances amounting to self[-]defense.”  State v. Janes, 121 Wash.2d 220, 237, 850 P.2d 495 (1993) (citing State v. Acosta, 101 Wash.2d 612, 619, 683 P.2d 1069 (1984);  State v. McCullum, 98 Wash.2d 484, 488, 656 P.2d 1064 (1983) (plurality by Williams, J.)).   For instance, the defendant must produce some evidence regarding the statutory elements of a reasonable apprehension of great bodily harm and imminent danger.  Janes, 121 Wash.2d at 237, 850 P.2d 495 (citing RCW 9A.16.050 10).  Then the burden shifts to the State to prove the absence of self-defense beyond a reasonable doubt.  State v. Graves, 97 Wash.App. 55, 61-62, 982 P.2d 627 (1999) (citing State v. Miller, 89 Wash.App. 364, 367-68, 949 P.2d 821 (1997)).

B. Arguments

1. Deprivation of Self-Defense Claim

¶ 55 Eggleston asserts that instructions 14 and 15 deprived him of a self-defense claim because they stated that an officer “could basically use any force including deadly force when executing a search warrant;” moreover, if he believed that Bananola and the others were officers, “he could do nothing to protect himself even if they fired the first shot to serve [the] warrant.”   Br. of Appellant at 88;  Reply Br. of Appellant at 21.

¶ 56 Instruction 14 states in relevant part that homicide is justifiable when,

(1) the slayer knew that the person slain was a law enforcement officer;

(2) the law enforcement officer used excessive force;

(3) the slayer was in actual and imminent danger of death or great bodily harm;  and

(4) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him at the time of the incident.

CP at 778.

¶ 57 Instruction 15 states:

The use of deadly force by a law enforcement officer is not excessive when necessarily used by a law enforcement officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty.   The service of a search warrant is a legal duty of a law enforcement officer.

CP at 779.11

¶ 58 Not only do instructions 14 and 15 accurately state the law, they allowed Eggleston to argue his theory of the case.   So did instruction 13;  which explained that homicide is justifiable when committed in the lawful defense of the slayer, and

(1) the slayer did not know that the person slain was a law enforcement officer;

(2) the slayer reasonably believed that the person slain intended to commit a felony or to inflict death or great personal injury;

(3) the slayer reasonably believed that there was imminent danger of such harm being accomplished;  and

(4) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him at the time of the incident.

CP at 777.

¶ 59 At trial, Eggleston maintained that he did not know that the officers were police;  he thought they were thugs threatening him and his family and that his response was reasonable under the circumstances as they appeared to him.   Instructions 14 and 15 did not preclude him from arguing this theory;  they simply provided the jury with an additional theory to consider, and Eggleston does not argue that instructions 14 and 15 misled the jury.

¶ 60 Eggleston also claims that instruction 17 erroneously “told the jury that it could ․ presume that Eggleston knew that Bananola was an officer.”   Br. of Appellant at 89.   Instruction 17 reads:

A person knows or acts knowingly or with knowledge that another person is a law enforcement officer when he is aware of that fact or circumstance.

If a person has information which would lead a reasonable person in the same situation to believe that facts exist which indicate that another person is a law enforcement officer, the jury is permitted but not required to find that he acted with knowledge that another person is a law enforcement officer.

CP at 781.

¶ 61 Instruction 17 comports with Washington law and allowed Eggleston to argue his theory of self-defense.   See RCW 9A.08.010(1)(b).12  It did not tell the jury it could presume that Eggleston knew Bananola was an officer.   It simply provided a definition of knowledge that was necessary to interpret instructions 13, 14 and 15.   Under that definition, Eggleston could argue that a reasonable person in his situation would not have known that Bananola was a law enforcement officer.   If the State failed to prove that he knew Bananola was an officer, the jury would have analyzed his self-defense claim under instruction 13.

¶ 62 Finally, Eggleston asserts that under instructions 19 and 20, even if the jury found he held a reasonable but mistaken belief that he was in imminent danger, he would have no self-defense claim.   Instruction 19 states:

Homicide or the use of deadly force involving the killing of a person whom the slayer knew was a law enforcement officer is not justifiable unless the slayer was in actual and imminent danger of death or great bodily harm.   A reasonable but mistaken belief of imminent danger is an insufficient justification for the use of force against a known law enforcement officer who was engaged in the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty.

CP at 783.

¶ 63 Instruction 20 states:

A person is entitled to act on appearances in defending himself or another, against a person not known to be a law enforcement officer, if that person believes in good faith and on reasonable grounds that he or another is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger.   Actual danger is not necessary for a homicide or a use of deadly force to be justifiable.

A person is not entitled to act on appearances in defending himself or another against a person known to be a law enforcement officer.

CP at 784.

¶ 64 Instructions 19 and 20 accurately stated the law and permitted Eggleston to argue his defense theory.   Together they explain that when a person claims self-defense against a known law enforcement officer, he must be in actual or imminent danger of death or great bodily harm.   Cf. Valentine, 132 Wash.2d at 20-21, 935 P.2d 1294;  Ross, 71 Wash.App. at 842, 863 P.2d 102;  see also Holeman, 103 Wash.2d at 430, 693 P.2d 89;  Cadigan, 55 Wash.App. at 30, 776 P.2d 727;  Westlund, 13 Wash.App. at 466-67, 536 P.2d 20.   Eggleston could have argued that he was in actual imminent danger of death or great bodily harm when he shot Bananola.

2. Whether the Officers Were Acting Lawfully

¶ 65 Eggleston also argues that the jury instructions, along with the court's pretrial ruling, prohibited him from challenging the legality of the search in front of the jury, which impermissibly removed an element of his self-defense claim from jury consideration.   The State counters that whether the search warrant was properly issued was a legal question for the court, not a factual question for the jury.

¶ 66 Eggleston claims that under United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), a jury necessarily determines the lawfulness of a slain officer's use of force.   The Gaudin Court explained that “the Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.”  Gaudin, 515 U.S. at 511, 115 S.Ct. 2310.   There, the defendant was convicted of making material false statements on loan documents.   Gaudin, 515 U.S. at 508, 115 S.Ct. 2310.   The Court said that “materiality” was an element of the offense and part of what the government had to prove.   Gaudin, 515 U.S. at 509, 115 S.Ct. 2310.   As such, the Court held that the defendant had a right to have the jury decide materiality.  Gaudin, 515 U.S. at 511, 115 S.Ct. 2310.

¶ 67 Here, the legality of the search warrant was not an element of Eggleston's self-defense claim.   The State had to prove beyond a reasonable doubt that the officers were acting according to a “legal duty,” or a court order such as a warrant, not whether the search warrant would survive an appeal.   Chapter 10.79 RCW;  cf. State v. Richards, 136 Wash.2d 361, 371, 962 P.2d 118 (1998).   Moreover, we held in our first opinion that the search warrant was valid.  Eggleston, 108 Wash.App. 1011, 2001 WL 1077846, at *26 (holding that probable cause supported the warrant).

III. Evidentiary issues

A. Did the Trial Court Err in Excluding Certain Evidence?

¶ 68 Eggleston contends that the trial court erred in excluding evidence of:  (1) Rod Englert's “moving statement” videotapes;  (2) Steve McQueen's alleged deal with the State;  (3) Kay Sweeney's testimony about the effect of the crime scene contamination on Englert's conclusions;  (4) Deputy Benson's alleged lies in the search warrant affidavit;  (5) Tiffany Patterson's testimony about Eggleston's habit of falling asleep after she gave him his morning medication;  and (6) Deputy Reigle's prior statement omitting any reference to a “knock and announce” entry into the Eggleston house.

¶ 69 A trial court has broad discretion in ruling on evidentiary matters;  we will overturn such rulings only for an abuse of discretion.  State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967 (1999).   A trial court abuses its discretion when it takes a view no reasonable person would take or applies the wrong legal standard.  Finch, 137 Wash.2d at 810, 975 P.2d 967.   A constitutional evidentiary error is harmless only if, beyond a reasonable doubt, any reasonable jury would have reached the same result without the error.  State v. Guloy, 104 Wash.2d 412, 425, 705 P.2d 1182 (1985).   We will reverse non-constitutional evidentiary error only if it prejudiced the defendant.   See State v. Acosta, 123 Wash.App. 424, 438, 98 P.3d 503 (2004).

1. Videotapes

¶ 70 At issue here is the admissibility of the “moving statement” videotapes made at the direction of Rod Englert, the State's crime reconstructionist.   Taken at the Eggleston home in April 1996, these videotapes showed Deputies Dogeagle, Larson, Reigle, Fajardo, and Reding reenacting their movements during the shooting while Englert interviewed them and asked questions about their actions.   Englert used these videotapes to help form his opinions about the shooting.   In each of Eggleston's trials, the defense sought to introduce the videotapes during Englert's cross-examination.

¶ 71 The State objected to the tapes in the first two trials because the tapes were too dark.   During the first trial, the trial court refused to play the videotapes for the jury because the lighting did not “in any sense” replicate the lighting in the house at the time of the shootings.   RP at 1385.   The court concluded that the defense could cross-examine Englert from a transcript of the videotapes.   The judge at the second trial reached the same conclusion.

¶ 72 When the State again sought to exclude the videotapes in the third trial, the defense announced that it had lightened the tapes and would file the lightened copies the following day.

¶ 73 One week later, the parties and the court viewed the lightened Reding videotape but the voice and the movements were not synchronized.   The defense explained that it wanted to use the videos to cross-examine some of the deputies and Englert because “we believe ․ what they told him is inconsistent with what he reports and what his opinion is.”   RP at 2034.   The parties then viewed the Dogeagle tape, after which the defense stated that it was not particularly interested in the video.   The court asked the parties to review the lightened videos and present argument at another time.

¶ 74 During redirect examination of Deputy Dogeagle, the last deputy to testify, the State asked him about the two transcripts of the video (apparently, the State and the defense had prepared their own transcripts) and a discrepancy in their punctuation.   When the State asked the court to display on a screen the parts of the two transcripts it was referring to, the defense objected, arguing that the best evidence would be the video itself.   The parties eventually agreed to show the jury Exhibit 735, a shortened version of the lightened Dogeagle tape.13  After both parties questioned Dogeagle about the video, the court admitted it for illustrative purposes only since Dogeagle had acknowledged the statements he made therein.

¶ 75 The court then asked about the other videotapes that the defense wanted to introduce, and the parties viewed the videos of Reigle, Larson, and Reding.   After the State again objected to their introduction, the defense announced that it wanted to use only the tapes of Reigle, Reding, and Dogeagle:  “Those videos are fundamental to my cross-examination of the timing and sequence of shots in this case.”   RP at 4885.14  The defense explained:

This expert has testified ․ about where shots were fired ․ and his theory about the timing of the shots is totally ridiculous when you look at certain parts of the evidence.

This witness has testified that this shooting occurred over a minute and 15 seconds period of time.   When you look at what these people do on the videos, when you look at what they say and their movements through this little house, you realize and the jury will realize ․ that this opinion is fundamentally flawed.

RP at 4893.   The court responded that the jury had already seen the Dogeagle video and that its would admit only the Reigle and Reding transcripts. 15

¶ 76 During its cross-examination of Englert, the defense asked him about Reding's statement on the videotape transcript concerning Bananola's utterance of “ugh” as he started to collapse into the living room.   RP at 4911.   The issue was whether Bananola was shot before or as he was falling to the floor.   The defense again sought to introduce the videotape itself.   The State responded that the defense was simply ignoring the deputy's testimony and that the video would not help.   The court adhered to its earlier ruling, explaining:

I think they're very misleading, particularly the tape of Deputy Reigle․ [O]nce he walks into the kitchen, all you can see of him is a silhouette.   All I can see of him is a silhouette, and yet I know if I had been standing there in the position of the cameraman, I would not have seen a silhouette ․ my recollection of the videotape is Mr. Englert specifically instructed each of the deputies to take their time, go through in slow motion and act it out [.]  [That] is not an accurate reflection of the time.

With respect to movements ․ this jury has already heard the testimony of these witnesses who have told the jury where they were standing, and I think that the defense counsel is adequately able to make their point without using the video in that regard.   I think that the tape is very misleading.

In addition to all of that, it clearly shows ․ a large hole in the wall.   The large hole in the wall was ․ not caused by the gunfire itself, but rather was caused by the State's investigators who removed a section of the wall to retrieve the bullets.   The Court of Appeals has suppressed the bullets․ So we leave ourselves ․ in the very difficult position of having a hole in the wall that would again be misleading to the jury because the jury could be left with the impression that that was caused from the gunfire itself [.][W]e're not in a position to explain to them why there is this hole in the wall because the bullets are suppressed.[ 16]

RP at 4972-75.

¶ 77 During the cross-examination of Kay Sweeney, the defense reconstruction expert, the State asked what Reding said about the sequence of events during the shooting.   The defense objected, stating that the best evidence of what Reding said was in the video.   When the State asked more questions about the deputies' statements on the videotape, the defense again objected on the grounds that it could not show the videos to Sweeney to clarify and support his testimony.   The State responded that it was asking only about the deputies' statements, and the court again ruled that the defense could use the transcripts of the videos.

¶ 78 Eggleston argues on appeal that when the court excluded the videotapes during Englert's cross-examination, it violated his right to present a defense. 17  The trial court has discretion to determine the scope of cross-examination;  we will reverse a trial court's rulings on that scope only for a manifest abuse of discretion.  State v. McDaniel, 83 Wash.App. 179, 184-85, 920 P.2d 1218 (1996);  ER 611(b).

¶ 79 The Sixth Amendment to the United States Constitution and Washington Constitution article 1, section 22 guarantee criminal defendants the right to confront and cross-examine adverse witnesses. McDaniel, 83 Wash.App. at 185, 920 P.2d 1218.   Although the right is constitutional, it is subject to limitations:  (1) the offered evidence must be relevant;  and (2) the defendant's right to introduce relevant evidence must be balanced against the State's interest in precluding evidence so prejudicial as to disrupt the fairness of the fact-finding process.  McDaniel, 83 Wash.App. at 185, 920 P.2d 1218.  “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”  Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).   Any attempt to limit meaningful cross-examination, however, must be justified by a compelling state interest.  State v. Hudlow, 99 Wash.2d 1, 15-16, 659 P.2d 514 (1983) (citing People v. Redmon, 112 Mich.App. 246, 255, 315 N.W.2d 909 (1982)).

¶ 80 The trial court may admit demonstrative evidence if the experiment was conducted under conditions reasonably similar to those existing at the actual event.   Whether the similarity is sufficient is for the trial court's discretion.  State v. Stockmyer, 83 Wash.App. 77, 83, 920 P.2d 1201 (1996).   When evidence is not entirely accurate, the court may exclude it to avoid confusing the jurors.   5 Karl Tegland, Washington Practice:  Evidence § 403.4, at 368-69 (4th ed.1999).

¶ 81 A review of the three videotapes at issue shows that the darkness problem identified in Eggleston's two previous trials was largely overcome.   Problems with synchronizing the voice and the movements in the Reding tape do exist, however, and the trial court was correct that Deputy Reigle appears as a silhouette in much of his videotape.18  Moreover, the Reigle tape clearly shows the hole in the wall left from the removal of the subsequently suppressed bullets.   And, as the trial court mentioned, Englert instructs each deputy to repeat his actions in slow motion.

¶ 82 Eggleston now argues that excluding the tapes was error under the best evidence rule and the rule of completeness.  ER 1002, ER 106.   Generally, a party who wants to prove the contents of a writing, recording, or photograph must use the original.  ER 1002;  5C Karl Tegland, Washington Practice:  Evidence § 1002.1, at 238 (4th ed.1999).   And if a party introduces part of a writing or recorded statement, the opposing party may require the introduction of any other part “which ought in fairness to be considered contemporaneously with it.”  ER 106;  5 Karl Tegland, Washington Practice:  Evidence § 106.1, at 115 (4th ed.1999).   Eggleston did not refer to the best evidence rule until the cross-examination of defense witness Kay Sweeney, which was well after the court made its ruling concerning the videotapes, and the record does not show that he ever argued that excluding the tapes violated the rule of completeness.   See, e.g., ER 1002;  ER 106.   A party may assign error on appeal only on the specific ground of the evidentiary objection made at trial, and that objection must be timely.   See Guloy, 104 Wash.2d at 422, 705 P.2d 1182;  State v. Avendano-Lopez, 79 Wash.App. 706, 710, 904 P.2d 324 (1995).

¶ 83 Even if we consider Eggleston's new arguments concerning the court's ruling, we find no harmful error.   Eggleston does not explain why the Dogeagle and Reigle tapes were essential to his impeachment of Englert.   His discussion of Reding's statements mirrors that made during trial, but he does not point to any flaw in the trial court's reasoning that the video would not have helped determine whether Reding meant that Bananola was shot before or as he was falling.   Moreover, the trial court had valid concerns about the quality of the videotapes, their potential exposure of suppressed evidence, and the deputies' slow-motion reenactments of their movements.   These concerns, coupled with the jury's visit to the house and the defense counsel's use of the video transcripts to cross-examine Englert, persuade us that the trial court did not abuse its discretion in limiting Eggleston's use of the videotapes during Englert's cross-examination.

2. Steve McQueen-Evidence of Bias

¶ 84 McQueen, a convicted felon, provided the information that launched the Eggleston investigation.   When the State sought to prevent the defense from asking about McQueen's original charges, as opposed to those to which he pleaded guilty, the defense responded that the issue went to bias.   The matter was left unresolved until the defense asked McQueen on cross-examination if he knew “Mr. Horne.”   RP at 2817.   When the court sustained the State's objection, the defense explained outside the jury's presence that it wanted to ask McQueen whether Horne appeared at his 1996 sentencing and made statements about his cooperation in the Eggleston case.

¶ 85 The State responded that when McQueen pleaded guilty to “several counts of robbery in the first degree” in 1996, it explained to him that reducing the number of charges was unrelated to his testimony in the Eggleston case.   RP at 2849.   The State told the defense at the time that for McQueen's safety in prison, it would separate him from Eggleston, and that it would tell the sentencing judge that McQueen had cooperated in the Eggleston case.   McQueen testified at Eggleston's second and third trials without receiving any benefit.   The State took the position that what happened in 1996 was not relevant to McQueen's testimony in 2002, and the defense made no further argument.

¶ 86 Eggleston now argues that the trial court erred in excluding evidence that the State reduced the charges against McQueen in exchange for his testimony against Eggleston.   The defendant has a right to cross-examine a witness about possible bias, but the scope or extent of such cross-examination is within the trial court's discretion.  State v. Roberts, 25 Wash.App. 830, 834, 611 P.2d 1297 (1980).   The trial court may prohibit further questioning where the claimed bias is speculative or remote.  State v. Benn, 120 Wash.2d 631, 651, 845 P.2d 289 (1993).   Where a case stands or falls on the credibility of essentially one witness, that witness's credibility or motive must be subject to close scrutiny.  Roberts, 25 Wash.App. at 834, 611 P.2d 1297;  see also Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (new trial required where State did not disclose promise of leniency to key witness).

¶ 87 Although Eggleston argues that excluding the evidence of McQueen's bias is analogous to the exclusion of the “deal” in Giglio, important differences exist.   Any evidence of bias here is both speculative and remote;  it concerns a promise of leniency that occurred six years before the testimony at issue and that the State largely denies.   Moreover, McQueen was not a key witness;  he did not testify about the officers' entry into the Eggleston home or the gun battle.   His testimony merely set the stage for Deputy Benson's investigation.   The trial court did not abuse its discretion in excluding the evidence of McQueen's alleged bias.

3. Kay Sweeney-Contamination Evidence

¶ 88 During Sweeney's direct examination, the defense sought to question him about how the State's investigation contaminated the crime scene and adversely affected the opinions of the State's expert, Rod Englert, about what happened during the shootings.   Defense counsel contended that “[o]nce you destroy or modify a scene, the conclusions become unreliable.”   RP at 5366.   The State objected and asked for an offer of proof explaining how the alleged contamination affected the crime scene reconstruction efforts, arguing that Sweeney could not testify simply that the ability to reconstruct the crime scene was hampered because of what the State had done.  “It needs to be tied to specific elements of reconstruction and specific items that we're talking about.”   RP at 5369.   The court ruled that Sweeney could testify how the debris left on the gold chair in the living room could have contaminated the evidence found thereon 19;  it also ruled that he could explain how moving items during the investigation might have resulted in blood transfers.   The court agreed, however, that the defense had to make an offer of proof about how removing the sheetrock from portions of the wall affected the subsequent bloodstain analysis.  (The parties had already stipulated to DNA results showing that certain bloodstains came from Bananola and others from Eggleston.)

¶ 89 In his offer of proof, Sweeney explained that the particulate matter from the removed bloodstained sheetrock could have been spread throughout the house during the investigation, but he acknowledged that he was concerned about only one area of blood in the hallway.   He also admitted that he had been able to form opinions about what happened during the shooting despite the crime scene alterations.   He did not specifically challenge any of Englert's conclusions.

¶ 90 Following that offer of proof, the court ruled:

Okay ․ [w]ith respect to his comments on the DNA ․ he's not qualified to speak to this issue, but also it flies in the face of the stipulation․ So it's inconsistent with the defense's position in signing the stipulation, it seems to me, to have their own expert then attacking the stipulation that they signed and that's already been read to the jury.   So I don't want you eliciting any testimony from him in that regard.

[Y]ou can ․ elicit ․ testimony with respect to the chair, [and] with respect to ․ the south facing portion of the north section of the archway․ He can talk about any mixtures of blood that weren't stipulated to as to how they could have come to be there by activities that may have occurred after the actual shooting took place ․ but I don't want general, broad testimony of it affecting all of the reliability of all the conclusions, because that's not what, in fact, he has indicated in his testimony.

With respect to the sheetrock, I'm still not going to allow it in.   He ․ stated that it didn't change his opinion as to the donor or identity of the blood that was in the north-south hallway which is where the sheetrock is.   Although, I understand you want him to talk about how removing it can transfer blood and there's some potential there of saying well, somebody else's blood was on the wall, the wall was knocked out, that blood was then dissipated or dispersed somewhere else and therefore this portion of the puzzle we can't put together because we don't know if it was originally on the wall or not, but I didn't hear him testify to that.

Now, if you were going to elicit that type of testimony, that was your opportunity to do so, or I would ․ have him come back in.   Unless he's going to testify to something like that, I heard him very clearly that the blood that was on the floor, he doesn't take any issue with the identity of the donor of that blood despite the issue of the sheetrock․ [N]obody has testified ․ that somebody else's blood was on that wall that may have changed how this is being reconstructed by him or by Mr. Englert;  it's only misleading and prejudicial and gets us into opening the door to evidence that was suppressed.

RP at 5389-92.   On appeal, Eggleston claims that this ruling prevented Sweeney from testifying about how sheetrock strewn over the house contaminated vast areas of the crime scene and therefore prevented him from testifying with any reliability about what occurred.

¶ 91 This claim largely ignores the trial court's ruling regarding Sweeney's offer of proof, and it overlooks as well the detail with which Sweeney testified “with reasonable scientific certainty” about what happened during the shooting.   RP at 5508-33.   Eggleston has not shown that the trial court abused its discretion in restricting Sweeney's testimony about the effect of contamination on Englert's reconstruction efforts.

4. Deputy Benson-Evidence of Lying

¶ 92 Eggleston argues that the trial court erred in excluding evidence that Deputy Benson lied in the search warrant affidavit when he described witnessing two controlled buys between McQueen and Eggleston.   The State objected to this proposed line of testimony because this court ruled that the affidavit was valid in Eggleston's previous appeal.   The State contended that Eggleston was simply attempting to argue once again that the affidavit and search warrant were invalid.  (In upholding the affidavit, we found that it did not refer to the first buy and that Benson's failure to mention that Eggleston's girlfriend was present during the second buy was not a material omission.)

¶ 93 The defense argued that it was challenging only Benson's credibility, but the State disagreed:  “How can the jury be the judge of Benson's credibility unless they know what the legal standard is for issuance of a warrant and the requirements for what's included in a search warrant affidavit.”   RP at 50.   The trial court agreed.   But on cross-examination, the court allowed the defense to ask Benson whether the buy he witnessed was technically a controlled buy.   Benson admitted here, as he had in prior proceedings, that the transaction was not actually a controlled buy.   The defense then sought to cross-examine Benson about whether he lied to the judge to whom he applied for a search warrant about the buy and whether he told the judge that there were other people present.   The trial court sustained the State's objection to the question, explaining that it would not allow any attack on the search warrant.

¶ 94 Eggleston now argues that this ruling “violates state evidentiary rules,” but he does not explain how such a violation occurred.   Generally, a party may not impeach a witness on a collateral matter.   See State v. Griswold, 98 Wash.App. 817, 831, 991 P.2d 657 (2000).   Whether Benson misrepresented the facts of the drug purchases from Eggleston in his search warrant affidavit is collateral to the core issue of how the shootings occurred.   The trial court did not err in limiting the defense cross-examination on the issue.

5. Tiffany Patterson-Habit Evidence

¶ 95 Eggleston contends that the trial court erred in not allowing the defense to cross-examine his girlfriend, Tiffany Patterson, about whether Eggleston tended to fall asleep after she gave him his medicine in the morning before she left for work.

¶ 96 Patterson testified on direct that she gave Eggleston his medicine before she left the house on October 16, 1995, and that she did not know whether he was awake afterward.   When the defense sought to ask whether the medication consistently made him sleepy, the court ruled against it.  “[T]o the extent that you're trying to show that he acted in conformity with what he may have done in the past in response to medication, I'm not going to allow it.   She has no personal knowledge of it.”   RP at 3273.   The court did, however, allow the defense to refresh her memory with a prior inconsistent statement made during Eggleston's previous trial.   When questioned about her prior testimony that Eggleston went back to sleep after receiving his medicine on October 16, Patterson acknowledged that “he laid back down.”   RP at 3275.

¶ 97 Because Patterson had already testified that she did not know whether Eggleston had fallen asleep after she gave him his medicine on October 16, the trial court did not err in preventing her from testifying that he usually did go back to sleep.   Habitual behavior consists of semi-automatic and specific responses to specific stimuli.  Wash. State Physicians Ins. Exchange & Ass'n v. Fisons Corp., 122 Wash.2d 299, 325, 858 P.2d 1054 (1993);  see also ER 406.   Patterson's direct testimony did not support a conclusion that Eggleston's sleepiness after receiving his morning medicine was habitual.   In any event, this questioning was aimed at showing that the deputies awakened Eggleston on October 16, and the defense introduced evidence to that effect when the trial court allowed it to use Patterson's prior testimony.

6. Deputy Reigle-Prior Inconsistent Statement

¶ 98 During his direct examination, Deputy Reigle testified about the “knock and announce” procedure the deputies employed in entering the Eggleston house on October 16, 1995.   RP at 3297-3300.   The defense then attempted to cross-examine him about a statement he gave on November 2, 1995, in which he did not mention the knock and talk procedure.   This statement was intended to clarify a statement Reding gave on the day of the shooting.   The State objected, arguing that Reigle's earlier statement was not inconsistent with his trial testimony because he had not been asked about the entry procedure in giving the earlier statement.   The court agreed and sustained the objection.   Reigle testified during cross-examination that he announced his presence when he entered the Eggleston home, and he explained on redirect that he did not describe the entry procedure in the statement he gave on October 16 because he was not asked about it.   The trial court did not abuse its discretion in holding that Eggleston's November statement, which was intended to clarify his October statement, was not inconsistent with his trial testimony.   See Finch, 137 Wash.2d at 810, 975 P.2d 967.

B. Did the Trial Court Err in Admitting Certain Evidence?

1. Sequence Testimony

¶ 99 Eggleston argues that because our earlier opinion held that neither the State nor the defense expert had a sufficient factual basis to support an opinion about the sequence of shots, the trial court erred in allowing Englert to testify about the sequence of the gunfire between Eggleston and Bananola.   In our first opinion we said:

The trial court did not err in admitting most of the crime-scene-reconstruction testimony ․

We take issue, however, with the testimony offered by both reconstruction experts concerning the sequence of the shots fired during the gun battle between Bananola and Eggleston ․

Both of these conclusions are completely speculative.   The expert testimony as to who fired first is mere conjecture and should have been excluded.

Eggleston, 108 Wash.App. 1011, 2001 WL 1077846, at *15 (footnote omitted).

¶ 100 Englert attempted to testify in this trial about exhibits showing how the events of October 16 unfolded.   The defense objected, arguing that the exhibits would illustrate the sequence of shots in violation of our first opinion.   The court ruled that the deputies had already testified about the sequence of gunfire and that Englert was barred from testifying only as to who fired first.

¶ 101 When Englert continued to testify about the movements of Eggleston and Bananola and the sequence of their shots and injuries, the defense moved for a mistrial, arguing that Englert could not testify regarding the sequence of gunfire.   The trial court agreed with the State that Englert could testify about the movement of persons as evidenced by the physical evidence in the house and as independently verified by eyewitnesses.

I am interpreting the Court of Appeals opinion as excluding either Mr. Englert or Mr. Sweeney from testifying as to who fired the first shot․ [T]o the extent that they are able to talk about other shots due to ballistic evidence, due to blood spatter, or due to trajectory analysis, they may do so, and the Court of Appeals specifically acknowledged that they could testify as to where people were, which is what I understood this testimony to be.

RP at 4646.   When the defense continued to object, the court responded:

I don't know how to make it any more clear than that.   They can't say this is Shot No. 5. This is Shot No. 6. This is the order in which the shots occurred [.]  [B]ut they can talk about the shots occurred in the hallway first then this is where we believe based on this evidence that Deputy Bananola moved, this is where we believe Eggleston moved based on all of this evidence, the testimony, the trajectory analysis, the location of the ballistic evidence, the blood spatter and so forth.

RP at 4649.

¶ 102 Eggleston claims on appeal that Englert testified about “the order in which each bullet was fired, until all were covered,” thus violating the law of the case doctrine.   Br. of Appellant at 58;  see Greene v. Rothschild, 68 Wash.2d 1, 10, 414 P.2d 1013 (1965) (law of the case doctrine binds parties and courts to prior appellate holdings until they are overruled).

¶ 103 This claim misrepresents the record.   Englert did not testify about the numerical sequence of the shots Eggleston and Bananola fired.   Rather, he used the prior testimony about their injuries and their movements to offer opinions concerning where Eggleston was when he fired at Bananola and what position Bananola was in when Eggleston shot him in the head.   This testimony did not violate this court's admonitions about the proper scope of the sequencing evidence.   The trial court did not err in allowing Englert to testify as he did about the gunfire between Eggleston and Bananola.

2. Evidence of Eggleston's Drug Dealing

¶ 104 Eggleston contends that the trial court erred in admitting evidence of his drug use, drug dealing, and the drugs found in his home after the shooting.

¶ 105 In Eggleston's previous appeal, we affirmed his convictions for unlawful delivery of a controlled substance (two counts), unlawful possession of a controlled substance with intent to deliver, and unlawful possession of a controlled substance.   Before his third trial began, the defense moved to exclude evidence of Eggleston's drug dealing.

¶ 106 The State explained that it wanted to introduce evidence of his drug dealing, not his convictions, to provide a context for the search warrant and the entry into the Eggleston home. The State argued that this evidence was admissible as res gestae and to show Eggleston's motive in shooting at the officers.   The defense acknowledged that the jury needed to know why the deputies were at the house on October 16, but argued that the drug buys, as well as the drug evidence found in the house, were irrelevant.

¶ 107 The court denied the defense motion, ruling that the drug evidence was relevant to show intent, res gestae, and to refute Eggleston's self-defense claim.   The court found “the prejudice, if any, to the defendant is very slight.”   RP at 96.

¶ 108 Under ER 404(b), evidence of other crimes, wrongs, or acts is inadmissible to prove character and to show action in conforming with it.   State v. Thach, 126 Wash.App. 297, 106 P.3d 782, 789 (2005).   Such evidence may be admissible, however, for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  ER 404(b).  If admitted for other purposes, a trial court must identify that purpose and determine whether the evidence is logically relevant to a material issue.  “Evidence is relevant and necessary if the purpose of admitting it is of consequence to the action and makes the existence of the identified fact more probable.”  Powell, 126 Wash.2d at 259, 893 P.2d 615.   If relevant, the court also must determine whether the probative value of the evidence outweighs its prejudicial effect.  State v. Barragan, 102 Wash.App. 754, 758, 9 P.3d 942(2000).

¶ 109 The drug evidence was admissible to prove Eggleston's motive and intent. 20  Motive is what prompts a person to act;  intent is the state of mind with which the act is done.   See Powell, 126 Wash.2d at 261, 893 P.2d 615.   Motive demonstrates an impulse, desire, or any other moving power that causes someone to act.  Powell, 126 Wash.2d at 259, 893 P.2d 615 (citing State v. Tharp, 96 Wash.2d 591, 597, 637 P.2d 961 (1981)).   We found evidence of a defendant's status as a gang member and drug dealer admissible to prove his intent and motive to commit murder in State v. Campbell, 78 Wash.App. 813, 821-22, 901 P.2d 1050 (1995).  “The challenged evidence clearly was highly probative of the State's theory-that Campbell was a gang member who responded with violence to challenges to his status and to invasions of his drug sales territory.”  Campbell, 78 Wash.App. at 822, 901 P.2d 1050.

¶ 110 Similarly, evidence that the defendant had sold marijuana the day before he shot a police officer was relevant to show motive in State v. Lyons, 340 N.C. 646, 459 S.E.2d 770, 782-83 (N.C.1995). There, the State's theory of the case was that defendant, a known drug dealer, had a motive to kill a law enforcement officer.   The court found the drug dealing evidence admissible under ER 404(b).  Lyons, 459 S.E.2d at 782-83 (evidence of narcotics activities on the premises admissible to show motive and to disprove defense claim that officer executing search warrant was shot in a case of mistaken self-defense).

¶ 111 Evidence of Eggleston's drug dealing, possession, and use before the shooting was also relevant to explain intent to shoot. The evidence supported the State's theory that Eggleston intentionally killed either a law enforcement officer to avoid arrest and prosecution or an intruder to protect his drugs.   Given the defense concession that some evidence of Eggleston's drug dealing was admissible, the trial court did not err in finding that the probative value of the evidence outweighed its prejudicial effect.   Thus, trial court did not abuse its discretion in admitting the evidence of Eggleston's drug use and dealing.

C. Did the Trial Court Err in Finding Ted Garn Unavailable to Testify?

¶ 112 Ted Garn, a Tacoma Police Department forensic investigator, was assigned to collect evidence from the Eggleston home after the shooting.   Under the direction of Detective Melvin Margeson, he measured and photographed the interior of the residence;  photographed and collected items of ballistic evidence;  and collected Bananola's bloody clothing, the guns Bananola and Eggleston used, the firearms found in Eggleston's bedroom, and blood samples.

¶ 113 At Eggleston's first two trials, Garn testified about collecting the ballistic evidence and blood samples.   Defense counsel cross-examined him each time.

¶ 114 In 2001, Garn sustained serious, disabling injuries in a car accident.   When the prosecuting attorneys learned that he might not be able to testify at Eggleston's third trial, they talked with Garn to encourage his cooperation.   Garn explained that he could not remember any of the details of the Eggleston investigation and did not recognize the reports he had prepared.   He also said that he had begun receiving treatment for post-traumatic stress caused by his Vietnam service.

¶ 115 Despite his reluctance to testify, Garn responded to a subpoena.   He testified at a hearing that he believed he collected evidence at the Eggleston residence, but he could not recall picking up bullets and did not recognize a photograph that he took.   Nor could he remember preparing reports.   He said that he was experiencing severe pain and tremors as he testified, and he listed six medications that he was taking.   Garn explained that he had been receiving counseling and medication for a post-traumatic stress disorder and would be entering the VA hospital for treatment as soon as a bed was available.   He told defense counsel that he did not think reviewing documents would refresh his memory;  and he could not bring himself to read a paragraph from one of his reports when the prosecuting attorney asked him to do so.

¶ 116 His wife, a registered nurse for 20 years, testified at the same hearing that Garn becomes traumatized and reacts violently when viewing violence on television;  he has been told to avoid newspapers, television news, war movies, and crime dramas;  and he is in constant pain from his neck and spinal surgeries.  “He has a stainless steel plate with six screws on the front side of his neck, and the back of where the spinal column is, they put in some bone donor and some more screws and they wrapped his neck with stainless steel wire so he has no mobility.”   RP at 1247.

¶ 117 The State also presented a note from Garn's surgeon stating that Garn could not testify at Eggleston's trial due to his neck condition.

¶ 118 The State argued that Garn could not testify because of his memory loss and his physical and mental problems.   The defense complained that it had no medical documentation of Garn's difficulties;  the State explained that none would be available until after his VA evaluation, which would take at least two weeks.   The court declined to continue the trial, ruling that Garn was unavailable and that his prior testimony was admissible.

¶ 119 Eggleston now argues that the trial court should have required independent medical corroboration that Garn was unavailable to testify.

¶ 120 Under ER 804 a court may admit former testimony when the declarant is “[i]s unable to be present or to testify at the hearing because of ․ then existing physical or mental illness or infirmity.” 21  ER 804(a)(4), (b)(1);  State v. Whisler, 61 Wash.App. 126, 131-32, 810 P.2d 540 (1991).   If the witness is unavailable because of illness or infirmity, the illness or infirmity must render the witness' attendance relatively impossible and not merely inconvenient.  Whisler, 61 Wash.App. at 132, 810 P.2d 540 (citing People v. Stritzinger, 34 Cal.3d 505, 194 Cal.Rptr. 431, 668 P.2d 738, 746 (Cal.1983).   The court has a measure of discretion in determining whether the declarant's infirmity is sufficient to justify a finding of unavailability.   5D Karl Tegland, Courtroom Handbook on Evidence, Rule 804, at 424 (2005).

¶ 121 In Whisler, where the 94-year-old forgery victim had a heart condition, the trial court allowed the State to read her deposition testimony instead of forcing her to testify in person.  Whisler, 61 Wash.App. at 131, 810 P.2d 540.   When Whisler complained on appeal that no competent expert had testified about the victim's physical condition, Division One found adequate proof in an affidavit summarizing a conversation her doctor had with the prosecuting attorney, coupled with her daughter's testimony about her mother's medical condition.  Whisler, 61 Wash.App. at 138-39, 810 P.2d 540.   The court rejected Whisler's complaint that the daughter's testimony was incompetent because she was not a medical expert:  “[She] was certainly competent to testify about facts of her mother's condition that do not require medical expertise to ascertain.”  Whisler, 61 Wash.App. at 140, 810 P.2d 540;  see also Alcala v. Woodford, 334 F.3d 862, 880 (9th Cir.2003) (expert medical testimony not essential to establish the existence of a mental infirmity and thus witness unavailability).

¶ 122 Here, the State produced a note from Garn's doctor and Garn's wife testified about his neck surgery, ongoing pain, and his “acting out” as the result of trauma.   Additionally, Garn testified that he could not remember much of his investigation, was unable to recognize or review his reports, was experiencing pain, and was taking six medications.   In light of this foundation, the trial court did not abuse its discretion in finding him unavailable to testify and in admitting his former testimony under ER 804.

IV. Jury Issues

A. Discharge of Jurors 4 and 71. Background

¶ 123 On Thursday, October 31, 2002, juror 7 fell and injured herself.   The court had scheduled a jury visit to the crime scene that day, but rescheduled it for the following Monday to accommodate juror 7's injury.   The court expressed concern about scheduling the site visit soon because of possible vandalism to the house.   Rescheduling the site visit involved canceling and rescheduling a bus, adding and rescheduling staff, and juggling witnesses.

¶ 124 On the day of the rescheduled site visit, juror 7 notified the trial court that she had seen a doctor the previous Friday and that she had another appointment in Seattle that afternoon, which would potentially conflict with the site visit.   She also told the court that although she thought her injury would be resolved after this doctor visit and another one on Friday, she was still experiencing a lot of pain.

¶ 125 The trial court discussed these conflicts with counsel.   Eggleston argued that the court should not discharge the juror until after her Friday doctor's appointment when they might have a better idea of the potential impact of her injury.

¶ 126 Citing the burden of rescheduling the site visit and the risk that juror 7's ongoing medical appointments could further impede her participation in the trial, the trial court decided to discharge juror number 7.22 When the court explained this to her, she said she had been trying to reschedule her appointment for later that day.23  The court then discharged juror 7 and replaced her with an alternate.

¶ 127 That same day, juror 4 told the court's judicial assistant that she could not get there until noon because she had been vomiting all night and all morning.   The State asked the court to discharge the juror.   Eggleston argued that the court should postpone the site visit until the juror had recovered and asked the court to contact the ill juror to make a record of the discharge.   Aware of the difficulty of rescheduling the site visit and concerned that the ill juror would make the others sick, the court discharged juror 4 without talking with her again;  the court replaced her with an alternate.

2. Discussion

¶ 128 Eggleston contends that the trial court erred when it discharged jurors 4 and 7 mid-trial.   He argues that the court (1) abused its discretion in finding these jurors unable to fulfill their duties and (2) failed to comply with the procedural requirements of CrR 6.5 24 and RCW 2.36.110. 25  Eggleston maintains that short trial continuances could have accommodated the jurors.

¶ 129 CrR 6.5 and RCW 2.36.110 allow the trial court to replace a juror with an alternate if the juror becomes unable to serve.   We review a trial court's decision to remove a juror for abuse of discretion.  State v. Ashcraft, 71 Wash.App. 444, 461, 859 P.2d 60 (1993).   We find none here.

¶ 130 Although a continuance may have accommodated juror 4's illness and reduced the impact of juror 7's injuries, the trial court properly considered the possible consequences of a continuance. The court expressed concern about the difficulty, cost, and vandalism risk in further delaying the site visit.   Additionally, the court considered the likelihood that even with a continuance, juror 7's future medical needs might affect her ability to serve.   These facts support the trial court's decision to discharge both jurors.

¶ 131 These discharges did not violate any procedural requirements.   Although CrR 6.5 contemplates some sort of formal proceeding, it does not require one.  Ashcraft, 71 Wash.App. at 462, 859 P.2d 60.   Such a proceeding is required only when the case has gone to the jury and the alternates have already been temporarily excused.26  State v. Johnson, 90 Wash.App. 54, 72, 950 P.2d 981 (1998).   Here, the trial court removed jurors 4 and 7 and replaced them with alternates before the jury began its deliberations;  thus, the court was not required to hold any formal proceedings.27

¶ 132 Further, Eggleston cannot establish that seating alternate jurors amounted to a constitutional error because a defendant has no constitutional right to be tried by a jury that includes a specific juror.  State v. Jorden, 103 Wash.App. 221, 229, 11 P.3d 866 (2000) (citing State v. Gentry, 125 Wash.2d 570, 615, 888 P.2d 1105 (1995)).

B. Motion for New Trial Based on Juror Misconduct

1. Background

¶ 133 At some point during the trial, juror Thomas Burrows apparently reported to the judicial assistant that he had had brief, passing contact with a man and a woman who had been observing the trial and that he believed he knew these people.   The man and woman had apparently been witnesses or listed as witnesses in one of the earlier trials.   Burrows also apparently reported that he had been threatened.   Neither the court nor the judicial assistant reported this information to counsel.

¶ 134 After Burrows reported these contacts, the prosecutor learned that Burrows might have been a customer at the tavern where Eggleston had worked and that Burrows might have communicated with these former witnesses.   Before the jury started deliberating, Eggleston stipulated to Burrows's discharge. 28  The court discharged Burrows and replaced him with an alternate.

¶ 135 After the verdict, Eggleston discovered Burrows's disclosures to the judicial assistant and learned that although Burrows had been a customer at the tavern, he had not had any contact with Eggleston.   After learning this, Eggleston moved for a new trial.   In supporting affidavits, other jurors revealed that they had possibly discussed Eggleston's prior trials and the results of those trials during deliberation.

¶ 136 In his motion, Eggleston argued that had he known all the facts, he might not have agreed to dismiss Burrows.   In a supplemental pleading, he argued juror misconduct during deliberations.   Eggleston also moved to recuse the trial judge, asserting that recusal was appropriate because the judge and her judicial assistant could be witnesses.   Before the motion hearing, the trial court limited the hearing to three areas of misconduct:  (1) possible discussion of the evidence by members of the jury before deliberations began;  (2) possible discussion of a witness by members of the jury before deliberations began;  and (3) whether the jurors considered extrinsic evidence during deliberations.29

¶ 137 After hearing testimony from the 16 empanelled jurors, the trial court denied Eggleston's motion for a new trial.   In its written findings of fact and conclusions of law, the trial court found that (1) the fact of the prior trials was not extrinsic evidence;  (2) communicating the results of the prior trials during deliberation was juror misconduct;  and (3) a new trial was not appropriate because there was no reasonable probability that this information had affected the verdict.30  The court found that knowledge of the prior trials was not extrinsic evidence because these facts had been introduced as evidence during the trial and Eggleston had not objected or requested any curative action.

¶ 138 But the court found that “[t]he communication of results of prior trials by one juror to a few other members of the jury during deliberations constituted juror misconduct.”   CP at 928. The court also found, however, no reasonable probability that this information had affected the verdict because:  (1) only three of the jurors recalled hearing such statements during deliberation;  (2) the information about the results of the prior trials was inconsistent, with two jurors hearing that there had been a hung jury and an overturned conviction and one juror hearing that there had been a hung jury and a mistrial;  (3) none of the jurors identified the outcome of any specific charge;  (4) the information was available to the jury for only a short period of time;  and (5) the jury was legitimately aware of the prior trials and the time that had passed between the incident and the current trial, so it was likely that the jury could conclude there had been inconclusive results in the prior trials.

¶ 139 In addition, the trial court found that the juror who had apparently introduced the extrinsic information had not been deceptive during voir dire.   Instead, it concluded that this juror, who had disclosed during voir dire that she knew of the previous trials, likely recalled additional details about the earlier trial results as she heard the evidence in the current trial.   The court also concluded that other jurors had disclosed knowledge of the earlier trial outcomes during voir dire and that these jurors were excused only if they “so firmly were convinced of the guilt or innocence of Mr. Eggleston that they could not put aside their prior knowledge.”   RP at 6607.   In fact, during the trial, defense counsel did not challenge an alternate juror after she revealed that she had inadvertently heard about an earlier trial outcome.

2. Failure to Recuse

¶ 140 Eggleston argues that the trial court should have recused itself from hearing the motion for new trial.

¶ 141 The Code of Judicial Conduct (CJC) Canon 3(D)(1)(d)(iii) requires a judge to disqualify herself from a proceeding if her “impartiality might reasonably be questioned,” including instances where the judge is “likely to be a material witness in the proceeding.”   Here, although the trial court or its staff could have been witnesses to whether Burrows reported information to the judicial assistant that was not communicated to the parties, the trial court did not address this issue at the motion hearing.   The court addressed only issues that did not involve the court or court staff.   And, as discussed below, because the trial court properly discharged Burrows and replaced him with an alternate, there was no reason for the trial court to investigate the alleged communications between Burrows and the judicial assistant.   Because Eggleston fails to show that the court or its staff were potentially witnesses, he fails to show any violation of CJC Cannon 3(D)(1(d)(iii).

3. Right to be Present

¶ 142 Eggleston next argues that the trial court violated his right to be present at every critical stage of the proceedings when it failed to report Burrows's contacts with the judicial assistant.

¶ 143 “The core of the constitutional right to be present is the right to be present when evidence is being presented.”  In re Pers. Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835 (1994) (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam)).   In addition, the defendant has a “right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ ” Lord, 123 Wash.2d at 306, 868 P.2d 835 (citing Gagnon, 470 U.S. at 526, 105 S.Ct. 1482).   Accordingly, a defendant does not have the right to be present during in-chambers or bench conferences between the court and counsel on legal matters where those matters do not require a resolution of disputed facts.  Lord, 123 Wash.2d at 306, 868 P.2d 835 (citing People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836 (1992)) (right to be present during hearing on admissibility of prior conviction).

¶ 144 Because the trial court dismissed Burrows and replaced him with an alternate before deliberations, Burrows's communications to the judicial assistant did not impact Eggleston's opportunity to defend himself against the charge.   Nor did the dismissal require a resolution of disputed facts.   Furthermore, the dismissal posed no risk to the fundamental fairness of Eggleston's trial.

4. Ex Parte Contacts

¶ 145 Eggleston also argues that he was entitled to a new trial because of Burrows's ex parte contacts with the judicial assistant.

¶ 146 When a trial participant has ex parte contact with the court and the defendant raises the possibility of prejudice, the State has the burden of proving that the communication was harmless beyond a reasonable doubt.   State v. Bourgeois, 133 Wash.2d 389, 407, 945 P.2d 1120 (1997).   Here, Eggleston fails to raise the possibility of prejudice.   He argues only that had he been fully aware of the alleged ex parte contacts he would not necessarily have stipulated to Burrows's dismissal.   Although this assertion shows that Eggleston was potentially denied the opportunity to make an informed decision, it fails to establish how this prejudiced him because Burrows was replaced with an alternate juror before deliberations.

5. Burrows's Discharge

¶ 147 Eggleston argues further that the trial court's findings failed to address Burrows's assertion that he never engaged in juror misconduct warranting his dismissal.   He again asserts that a full hearing was required under RCW 2.36.110 and CrR 6.5.   Finally, he argues that the discharge was an abuse of discretion.

¶ 148 Because the trial court discharged Burrows before the jury began its deliberations, no formal proceeding was required.   Further, because the parties stipulated to the discharge, Eggleston cannot show that the trial court abused its discretion in discharging Burrows.   Additionally, even if the discharge was in error, Eggleston can not show prejudice because the court replaced Burrows with an alternate prior to deliberations.

6. Other Jury Misconduct

¶ 149 Eggleston also contends that the trial court erred when it denied his motion for a new trial based on juror misconduct.   He argues that he was entitled to a new trial because the juror who allegedly disclosed the results of earlier trials failed to disclose in voir dire her knowledge of the previous trial results.   He maintains that juror discussions during deliberations of the facts and results of his earlier trials amounted to introducing extrinsic evidence and justified a new trial.

(a) Standards

¶ 150 We review a trial court's determination of whether juror misconduct warrants a new trial for an abuse of discretion.   A trial court abuses its discretion if the decision is manifestly unreasonable or based on untenable grounds.  State v. Barnes, 85 Wash.App. 638, 669, 932 P.2d 669 (1997).   Eggleston has the burden of showing that the misconduct occurred.  Barnes, 85 Wash.App. at 668, 932 P.2d 669.

¶ 151 “It is misconduct for a juror to fail to disclose material information when asked;  to extra-judicially acquire case-specific information during the course of the trial, especially where the judge ․ has given an instruction expressly prohibiting that;  and to inject into deliberations extraneous, case-specific information learned outside the trial.”  State v. Tigano, 63 Wash.App. 336, 341, 818 P.2d 1369 (1991) (citations omitted).   But only juror misconduct that prejudices the defendant warrants a new trial.  Tigano, 63 Wash.App. at 341, 818 P.2d 1369.

¶ 152 Generally, once misconduct is shown, we presume prejudice and the State bears the burden of overcoming this presumption beyond a reasonable doubt.   State v. Brenner, 53 Wash.App. 367, 372, 768 P.2d 509 (1989) (citing State v. Murphy, 44 Wash.App. 290, 296, 721 P.2d 30 (1986)).   But, in deciding whether to grant a new trial, the court must find “ ‘[s]omething more than a possibility of prejudice.’ ” State v. Hall, 40 Wash.App. 162, 169, 697 P.2d 597 (1985) (quoting State v. Lemieux, 75 Wash.2d 89, 91, 448 P.2d 943 (1968)).   Misconduct causes prejudice only if we conclude that the withheld or extraneous information could have affected the jury's deliberations.   Barnes, 85 Wash.App. at 669, 932 P.2d 669.31  With these rules in mind, we examine Eggleston's specific claims of juror misconduct.

(b) Failure to Disclose

¶ 153 Although a juror's failure to disclose material facts can amount to prejudicial error, a juror's failure to disclose knowledge of the earlier trials and their outcomes would not warrant a new trial unless this information would have supported a challenge for cause.  State v. Cho, 108 Wash.App. 315, 323, 30 P.3d 496 (2001);  Tigano, 63 Wash.App. at 342, 818 P.2d 1369.   Here, the trial court specifically found that other jurors with similar knowledge were not challenged for cause or dismissed unless the juror was unable to put aside this information.   Eggleston does not challenge this finding, thus it is a verity on appeal.   See State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003).   And nothing in the record suggests that this knowledge impaired any juror's ability to be impartial.   Accordingly, the trial court did not abuse its discretion in refusing to grant a new trial on this basis.

(c) Fact of Prior Trials

¶ 154 As to the fact of the earlier trials, the trial court found that this was not extrinsic evidence.   The trial court found, instead, that this information was presented to the jury during the course of the trial.   Eggleston does not challenge this finding;  thus, it is a verity.   See O'Neill, 148 Wash.2d at 571, 62 P.3d 489.   The trial court did not err in concluding that the information was not extraneous evidence.

(d) Outcome of Prior Trials

¶ 155 Finally, the trial court found that because the parties had revealed during voir dire and through the evidence that this was not Eggleston's first trial, any juror discussion of the earlier trial results did not prejudice Eggleston.   The court reasoned that because the jurors knew of the earlier trials and knew that considerable time had passed between the incident and the current trial, the jurors could have easily deduced that Eggleston's previous trials had ended either in hung juries, mistrials, or reversals on appeal;  accordingly the court found that this additional information did not prejudice Eggleston.   We find no abuse of discretion in this line of reasoning.

V. Resentencing on All Crimes

¶ 156 Eggleston argues that the third trial court erred when it resentenced him on the drug crimes following his third trial. Specifically, he claims that the court should not have recalculated his offender scores on those crimes to include the new murder conviction obtained in the third trial, thereby increasing his criminal history scores for each drug crime.   The State argues that the judgments and sentences imposed after the first and second trials were vacated by this court's previous opinion;  thus, there was no valid judgment and sentence, and the trial court was obligated to resentence Eggleston for those offenses.

¶ 157 We did not vacate the judgment and sentence for the drug convictions in our previous opinion.  Eggleston, 108 Wash.App. 1011, 2001 WL 1077846, *33.   Because we reversed the assault conviction, there was no remaining issue about running the firearm sentence enhancements for assault and one of the drug convictions consecutively.   We also clarified that “the drug convictions are unaffected by our decision.”  Eggleston, 108 Wash.App. 1011, 2001 WL 1077846 at *33-34 (emphasis added).   Ultimately, we reversed the assault and murder convictions, affirmed the drug convictions, and remanded for further proceedings.  Eggleston, 108 Wash.App. 1011, 2001 WL 1077846, *33-34.

A. Background

¶ 158 After the first trial, the court sentenced Eggleston on counts II-VI, the assault and the drug crimes.32  The total sentence was 238 months.   The court ordered each of the base sentences to be served concurrently, the firearm enhancements on counts II and IV to be consecutive, and the school zone enhancements on counts III and IV to be concurrent.   The offender scores on counts III through VI were 8, 8, 8, and 4, respectively.

¶ 159 After the second trial, the State argued that the court should resentence Eggleston on all crimes.   Specifically, it argued that the court should act as if there had been a single trial and sentencing hearing on all counts.   The State conceded that it had not found a case or statute to support this recommendation.   Instead, it reasoned that “[t]he fortuity of the mistrial on count I caused ․ Eggleston to be sentenced on different days for count I and the remainder of his offenses.”   CP at 1508.   Thus, it argued that resentencing on all crimes “is the most logical since it minimizes the effect of the mistrial on the length of the defendant's sentence.”   CP at 1509.   The trial judge rejected the State's recommendation and imposed a sentence for count I, running it consecutively to the previous sentence for count II, the assault conviction, and concurrently with the previous sentences for counts III-VI, the drug convictions.   In total, the court imposed 288 months plus the 60 months or 348 months.   The court rejected the State's request for an exceptional sentence.

¶ 160 At the sentencing hearing following Eggleston's conviction of second degree murder and of first degree assault at the third trial, the State reiterated its argument that the court should treat all of his convictions as though they were rendered in the same proceeding.   The State argued that it was “more fair” to “ignore the fact that the convictions came out of three separate proceedings and sentence the defendant as though he were convicted in a single trial of all the counts that were charged in this case.”   RP at 6642 (emphasis added).

¶ 161 The trial judge agreed, sentenced Eggleston on counts I and II, and re-sentenced him on counts III through VI, raising the offender scores to 9, 9, 9, and 5, respectively, and lengthening the sentences on all four counts. 33  Accordingly, the total sentence was 582 months with counts I and II running consecutively.

B. Sentencing and Resentencing in Washington

¶ 162 Eggleston argues that the trial judge's resentencing violates double jeopardy principles.   He may be correct, but we do not reach a constitutional issue if we can resolve the question on statutory grounds.   See Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 753, 752, 49 P.3d 867 (2002).   The Sentencing Reform Act of 1981(SRA) prevents a trial judge from resentencing as the court did here for crimes that were not reversed on appeal.

¶ 163 The meaning of a statute is a question of law we review de novo.   State v. Thomas, 150 Wash.2d 666, 670, 80 P.3d 168 (2003);  see also Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999).   Whether a trial court exceeded its statutory authority under the SRA is an issue of law, “which we review independently.”  State v. Murray, 118 Wash.App. 518, 521, 77 P.3d 1188 (2003).

¶ 164 Under the SRA, the court first calculates the sentencing range.   13B Seth A. Fine & Douglas J. Ende, Washington Practice:  Criminal law § 3501, at 277 (2d ed.1998).   To compute this range, the trial court must “(1) determine the seriousness level;  (2) compute the offender score;  and (3) modify the resulting range.”   13B Washington Practice § 3501, at 277.   Although ascertaining the seriousness level is a simple matter of consulting a table, computing the offender score is more complex.   13B Washington Practice § 3501, at 277.   In general, courts consider the nature of the present conviction, prior convictions, and current offenses.   See 13B Washington Practice § 3501, at 277;  see also RCW 9.94A.525. “A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed.”  RCW 9.94A.360(1) (recodified as RCW 9.94A.525 by Laws of 2001, ch. 10, § 6, and referencing subsection 589 for “other current offenses”) (emphasis added).  “Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed ‘other current offenses' within the meaning of RCW 9.94A.400.” RCW 9.94A.360(1) (emphasis added).

¶ 165 A sentencing court may consider subsequent convictions entered before the date of sentencing in determining a defendant's offender score.   State v. Worl, 91 Wash.App. 88, 93, 955 P.2d 814 (1998) (citing State v. Collicott, 118 Wash.2d 649, 664-68, 827 P.2d 263 (1992)) (emphasis added).   The offender score includes all prior convictions existing at the time of that particular sentencing without regard to when the underlying incidents occurred, the chronology of the convictions, or the sentencing or resentencing chronology.34  State v. Shilling, 77 Wash.App. 166, 175, 889 P.2d 948 (1995).

¶ 166 Assault is the only crime “current” with the drug offenses because it was the only other conviction obtained on the same day as the drug convictions.   Although the original assault conviction was reversed, Eggleston never asked us to vacate the drug sentences and remand for resentencing in light of that reversal.   Accordingly, we never vacated those sentences.

¶ 167 The State cites to State v. Collicott, 118 Wash.2d 649, 827 P.2d 263 (1992) to support the proposition that the trial court properly included the murder conviction from the third trial when it resentenced the defendant on the drug charges.   However, in Collicott, the Supreme Court expressly vacated the sentences at issue and remanded for resentencing.  Collicott, 118 Wash.2d at 651-52, 827 P.2d 263.   The Court held that a conviction on another charge that was entered in the interim between sentencing and remand for resentencing was a prior conviction that could be used in calculating defendants new sentence.  Collicott, 118 Wash.2d at 665, 827 P.2d 263.   Here, we did not reverse Eggleston's drug convictions or vacate the drug sentences in the first appeal.   Rather, we affirmed the drug convictions and left the drug sentences intact.   The third trial court had no authority to resentence Eggleston on the drug convictions.

C. The Sentences for the Drug Crimes Were Never Found Erroneous

¶ 168 The State contends that when a sentence is not in accordance with the law, the sentencing court has both the authority and the duty to correct it, citing State v. Pringle, 83 Wash.2d 188, 193, 517 P.2d 192 (1973).   However, quoting McNutt v. Delmore, 47 Wash.2d 563, 565, 288 P.2d 848 (1955), the Pringle court clarified,

When a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the [e]rroneous sentence, when the error is discovered.   This does not, of course, affect the finality of a correct judgment and sentence that was valid at the time it was pronounced.

Pringle, 83 Wash.2d at 193, 517 P.2d 192.   At the time the State obtained the drug convictions, it had not obtained a conviction on the murder charge.   Thus, the court did not include the murder in its calculation of the offender scores.   But this was not error;  it was correct.   Because this sentencing was correct, Pringle does not apply.

¶ 169 Here, the sentences for the drug crimes, as calculated and entered by the first trial court, were valid.   We affirmed the drug convictions and expressly declared that they were unaffected by our decision.   Eggleston, 108 Wash.App. 1011, 2001 WL 1077846 at *33.   Although the SRA required the third sentencing court to treat these convictions as part of Eggleston's history in sentencing him for murder and assault, the court lacked authority to resentence him on the previously obtained drug convictions to include the murder conviction in the drug crime offender scores.   Thus, the sentences for the drug crimes must be reversed, and Eggleston's previous sentences on those counts must be reinstated.

VI. Collateral Estoppel on Counts IV and VI

¶ 170 Eggleston argues that counts IV (possession of marijuana with intent to distribute in a school zone) and VI (possession of mescaline) were the same criminal conduct;  thus, convicting and sentencing him on both crimes violated double jeopardy protections and the same criminal conduct rules for sentencing. 35  But these issues are not properly before us.   These convictions and sentences followed the first trial.   Eggleston may attack those convictions in a personal restraint petition or collateral attack under RAP 16, but he may not challenge them as part of this appeal.

VII. The Exceptional Sentence Under Blakely

¶ 171 Eggleston argues that the trial court erred in imposing an exceptional sentence based on facts the jury did not decide beyond a reasonable doubt:  i.e., “[Egglestons] knowledge that the person at whom he was shooting, and whom he killed by firing three shots into his head, one fired from a distance of 18-24 inches, was a law enforcement officer.”   Br. of Appellant at 34-36.   The State concedes that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), requires us to vacate the exceptional sentence and remand for resentencing.   We agree.   We remand to the trial court for resentencing consistent with Blakely and SB 5477, 59th Legislature, Regular Session (Wash.2005) (conforming the Sentencing Reform Act, chapter 9.94A RCW, to comply with Blakely ).

¶ 172 We affirm the murder conviction, vacate the exceptional sentence on the murder conviction, and remand for resentencing in accordance with Blakely.   We affirm the assault sentence and vacate the sentences on the drug crimes;  and we reinstate the first court's sentences for those convictions.

FOOTNOTES

1.   At the first and second trials, the State argued that Eggleston knew the officers were police officers and, therefore, fired to protect his drug operations.   Because Eggleston's argument that the drug evidence should have been barred by collateral estoppel is inextricably linked to his argument that evidence of knowledge should have been excluded as well, our discussion of evidence of knowledge necessarily includes the drug evidence.   Thus, we do not discuss it separately.

2.   Eggleston cites to State v. Funkhouser, 30 Wash.App. 617, 637 P.2d 974 (1981), a case from this court, for the opposite premise.   Currently, no court, state or federal, has commented on Funkhouser.   In Funkhouser, we held that retrial for keeping a false account after acquittal of charges of misappropriating public funds did not subject a defendant to double jeopardy because keeping a false account is not a lesser included offense to misappropriation of public funds.   Funkhouser, 30 Wash.App. at 623-24, 637 P.2d 974.   This rule comports with the current cases.   But we also held that if the State chose to retry the defendant on the false account charge following remand, the trial court must exclude all evidence which, if believed, would necessarily show defendants complicity, either as principal or accomplice, in the misappropriation of public funds.  Funkhouser, 30 Wash.App. at 630, 637 P.2d 974.   This rule conflicts with the Dowling rule.   Indeed, Funkhouser precedes Dowling, and the Funkhouser court supports its ruling with federal circuit cases.   Thus, the Funkhouser case, while not overturned by any court, is arguably no longer accurate law as to this issue.

3.   Santamaria also relied on United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), in which the Supreme Court stated that “an acquittal is not a finding of any fact.   An acquittal can only be an acknowledgement that the government failed to prove an essential element of the offense beyond a reasonable doubt.”  Santamaria, 133 F.3d at 1246.

4.   He complains that the State offered evidence that Bananola was wearing a vest marked “SHERIFF” across the chest and shouting loudly;  that Eggleston was a drug dealer who would want to protect his reputation and drugs;  that Eggleston had meager work earnings;  and that Eggleston shot Bananola at close range and through the letters H and R on Bananola's vest.

5.   Even a clearly erroneous acquittal bars retrial.  Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (holding that in criminal cases, even an erroneous acquittal prevents a retrial);  Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 76 L.Ed. 356 (1932), overruled on other grounds, Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948).

6.   Unless present charges were “issues of ultimate fact or elements essential to conviction that were ‘necessarily decided’ ” in a previous case, the doctrine of collateral estoppel neither bars the charges nor precludes the government from litigating those issues.   See United States v. Martinez, 785 F.2d 663, 667 (9th Cir.1986) (citing United States v. Hernandez, 572 F.2d 218, 220 (9th Cir.1978));  see also United States v. McCoy, 721 F.2d 473, 475 (4th Cir.1983) (stating that an “acquittal can only be explained as the resolution favorably to the accused of a necessary element of proof of the second charge”).

7.   Eggleston attempts to distinguish Dowling by asserting that premeditation concerns mens rea and not evidence of prior crimes under ER 404(b).  But the Dowling rule is not limited to evidence admitted under ER 404(b).  “[C]ollateral estoppel does not ‘exclude in all circumstances ․ relevant and probative evidence that is otherwise admissible under the Rules of Evidence.’ ” Santamaria, 133 F.3d at 1247 (citing Dowling, 493 U.S. at 348, 110 S.Ct. 668).   As the Santamaria Court noted, if relevant and probative evidence is not used to prove an issue of ultimate fact that was already decided in a prior trial, collateral estoppel will not preclude the government from introducing that evidence.  Santamaria, 133 F.3d at 1247.

8.   Eggleston argued that the evidence showed that he and his family were asleep when the deputies entered the house and that when they heard noises, Eggleston grabbed his gun and went into the doorway of his bedroom to defend himself and his parents.

9.   For the first timein his reply brief, Eggleston argues that the jury instructions were erroneous because they did not follow the self-defense rule as articulated in State v. Valentine, 132 Wash.2d 1, 20-21, 935 P.2d 1294 (1997).   In the alternative, he argues that Valentine was not even the law in effect at the time of the crime;  instead, State v. Rousseau, 40 Wash.2d 92, 241 P.2d 447 (1952), controlled.   Further, he argues that when the Valentine Court overruled Rousseau, it changed the law to Eggleston's disadvantage.   He maintains that under the ex post facto clause he is entitled to apply the law in existence at the time of the crime, and therefore, this court should apply the law of Rousseau.In general, an issue raised and argued for the first time in a reply brief is too late to warrant consideration.  State v. Tjeerdsma, 104 Wash.App. 878, 886, 17 P.3d 678 (2001).   Furthermore, in our first decision, we relied on Valentine in explaining the law of self-defense.   See Eggleston, 108 Wash.App. 1011, 2001 WL 1077846, at *3. Thus, on retrial, Eggleston was aware of Valentine, its date of decision, and that the trial court was following it.   Yet he makes his ex post facto argument only cursorily at the end of his reply brief;  we decline to consider it.

10.   RCW 9A.16.050 states:Homicide is ․ justifiable when committed either:(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished;  or(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

11.   Instruction 16 explained that “necessary” means “under the circumstances as they reasonably appeared to the actor at the time, (1) no reasonably effective alternative to the use of force appeared to exist, and (2) the amount of force used was reasonable to effect the lawful purpose intended.”   CP at 780.

12.   RCW 9A.08.010(1)(b) 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.

13.   The shortened tape is approximately two minutes long.

14.   The defense did not specify, as Eggleston claims on appeal, that it sought to introduce the full-length Dogeagle videotape.

15.   The trial court also explained that it had admitted the Dogeagle video because neither party had objected.

16.   This court suppressed three bullets that investigating officers dug out of the wall because their seizure exceeded the scope of the drug warrant and the plain view doctrine.

17.   Contrary to the statement in the appellant's brief, Eggleston never sought to use the videos in cross-examining the deputies.   The defense did ask Reding, Fajardo, and Reigle to show the jury their movements by using diagrams of the house's interior.

18.   The Reding videotape is approximately seven minutes long;  the Reigle tape is approximately five minutes long.

19.   A pubic hair was found on the chair early in 1998.

20.   Although the trial court did not base its admission of the drug evidence on the motive exception, we can affirm a trial court on any grounds supported by the record.  State v. Frodert, 84 Wash.App. 20, 25, 924 P.2d 933 (1996).

21.   Because Garn was subject to cross-examination, admission of his prior testimony does not run afoul of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).

22.   The court also noted that this was not the first time issues involving juror 7 had arisen.

23.   Eggleston asserts that the juror told the court that she was able to reschedule her appointment and would be able to stay for the site visit.   But the record shows that juror 7 merely told the court she had been trying to contact her doctor to see if she could get a later appointment, not that she successfully rescheduled the appointment.

24.   CrR 6.5 provides for the selection of alternate jurors, for replacing excused jurors with alternates both before and after the jury begins its deliberations, and for the temporary discharge of alternate jurors after the jury begins its deliberations.   It states in part:If at any time before submission of the case to the jury a juror is found unable to perform the duties the court shall order the juror discharged, and the clerk shall draw the name of an alternate who shall take the juror's place on the jury.Alternate jurors who do not replace a regular juror may be discharged or temporarily excused after the jury retires to consider its verdict.   When jurors are temporarily excused but not discharged, the trial judge shall take appropriate steps to protect alternate jurors from influence, interference or publicity, which might affect that juror's ability to remain impartial and the trial judge may conduct brief voir dire before seating such alternate juror for any trial or deliberations.   Such alternate juror may be recalled at any time that a regular juror is unable to serve, including a second phase of any trial that is bifurcated.   If the jury has commenced deliberations prior to the replacement of an initial juror with an alternate juror, the jury shall be instructed to disregard all previous deliberations and begin deliberations anew.

25.   The court should “excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical ․ defect or by reason of conduct or practices incompatible with proper and efficient jury service.”  RCW 2.36.110.

26.   The purpose of a formal proceeding is to verify that the discharged juror was unable to serve and to demonstrate that the alternate is still impartial.  Jorden, 103 Wash.App. at 227, 11 P.3d 866.

27.   Eggleston's reliance on United States v. Tabacca, 924 F.2d 906, 913 (9th Cir.1991) (discussing discharge of juror under Fed.R.Crim.P. 23(b)), is also misplaced as that case involved removing and not replacing a juror after jury deliberations had started.

28.   Burrows was also reported to have been sleeping during part of the proceedings.

29.   Eggleston does not raise any issues related to the first two issues on appeal.   The record does not show when or why the trial court restricted the hearing to these three issues, excluding the issues related to its discharge of Burrows.

30.   The trial court misnumbered conclusions of law V and VI as III and IV. References are to the correct numbers.

31.   Eggleston asserts that the trial court erred by considering subjective evidence when determining whether he was entitled to a new trial.   But the record shows that although the trial court questioned the jurors on whether they kept an open mind, the trial court based its decision on proper objective factors as outlined in Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988).

32.   On count II (assault I), the court calculated an offender score of 4, a seriousness level of XII, a standard range of 129-171 months, and 60 months for the firearms enhancement.   The court imposed 160 months plus 60 for that offense.   On both counts III and IV (delivery of marijuana in a school zone possession with intent to distribute marijuana in a school zone), the offender score was 8, the seriousness level was III, the standard range was 67-81 months, and the school zone enhancement was 24 months.   The court imposed 57 months plus 24 on count III and 48 months, plus 24, plus 18 on count IV. On count V (delivery of marijuana), the court calculated an offender score of 8, a seriousness level of III, and a standard range of 43-57 months.   The court imposed 57 months.   On count VI (possession of mescaline) the court calculated the offender score at 4, the seriousness level at I, and the standard range at 3-8 months.   The court imposed a sentence of 3 months for that offense.

33.   On count I the court used a criminal history score of 4, an offense level of XIII, a standard range of 165-219 months, and a firearm enhancement of 60 months.   It imposed an exceptional sentence of 339 months plus the 60-month enhancement.   On count II the court used a criminal history score of 0, an offense level of XII, a standard range of 93-123 months, and a firearm sentence enhancement of 60 months.   It imposed a high end sentence of 123 + 60 or 183 months.   On count III the court used a criminal history score of 9, an offense level of III, a standard range of 51-68 months, and an enhancement of 24 months for a range of 75-92 months;  it imposed a sentence of 68 +24 months or 92 months.   On count IV the court again used a criminal history score of 9, an offense level of III, and a standard range of 51-68 months plus the enhancements for a total range of 93-110 months-the court imposed a sentence of 68, plus 18, plus 24 months, or 110 months.   For count V the court used a criminal history score of 9, and offense level of III, a standard range of 51-68 months and a sentence of 68 months.   On count VI the court used a criminal history score of 5, an offense level of I, a standard range of 4 to 12 months, and a sentence of 12 months.

34.   Excluding, of course, prior convictions that have “washed” under the SRA rules.   See, e.g., RCW 9.94A.525;  In re Jones, 121 Wash.App. 859, 869-70, 88 P.3d 424 (2004).

35.   Although generally the sentencing court determines the sentence range for each current offense by counting all other current and prior convictions as if they were prior convictions for the purpose of the offender score, if the court finds that some of the current offenses encompass the same criminal conduct, the court counts those offenses as one crime.  RCW 9.94A.589(1)(a).

ARMSTRONG, J.