STATE v. FREEBURG (2004)

OPINION PUBLISHED IN PART

Scott Freeburg appeals his convictions for first degree felony murder, second degree assault, and first degree burglary, and his life sentence under the Persistent Offender Accountability Act (POAA).   He contends:  the trial court made several evidentiary errors that deprived him of a fair trial;  the prosecutor commented on his right to silence during closing argument;  the trial court improperly intervened in jury deliberations and abused its discretion by not permitting the jury to watch a videotape of his trial testimony for a second time during deliberations;  and the trial court erred in finding his federal bank robbery conviction comparable to a Washington felony and imposing a life sentence under the POAA without a jury determination of his prior offenses.   Freeburg also raises numerous additional issues in his pro se brief.   We affirm his convictions, but because we conclude his federal conviction was not comparable to a Washington felony, we remand for resentencing.

FACTS

This is Scott Freeburg's second trial on the same charges.¹

In the early morning hours of November 17, 1994, Freeburg entered the apartment shared by Jose Rodriguez and his girlfriend, Darlene Martinez, and shot and killed Rodriguez.

According to Martinez, she and Rodriguez were in bed when they heard someone pounding on the door.   Rodriguez got out of bed.   Martinez got up and followed him.   Freeburg was at the door.   He told Rodriguez that he had come to collect money owed to him by Martine Gomez who had lived at the apartment a few months earlier.   Rodriguez told Freeburg he knew nothing of the debt but Freeburg demanded to come in and telephone Gomez.

Rodriguez and Martinez tried to prevent Freeburg from coming into the apartment.   He forced his way in, brandishing a gun.   When Martinez tried to call the police, Freeburg grabbed her, threw her on the couch, pointed the gun at her head, and told her to shut up or he would kill her.   At this point, Rodriguez struck Freeburg on the head with an unknown object.   While Freeburg and Rodriguez wrestled, Martinez headed for the door.   As she was fleeing, Martinez heard one gunshot followed by a second one.   She looked back and saw Rodriguez's body go limp.

Freeburg then opened the door and Martinez saw Freeburg's friend Lawrence Kuhn in the hall holding a gun.   Freeburg pushed Martinez into the wall and Kuhn entered the apartment.   Freeburg told Kuhn to shoot Martinez if she moved.   Freeburg went into the bedroom to look for money.   Martinez rushed at Kuhn, knocked him into the wall and ran out of the apartment.   Kuhn fired a shot at her, but missed.   Freeburg and Kuhn then fled.   Martinez banged on the door of another apartment.   The occupant let Martinez in and they called 911. When they returned to Martinez's apartment, Rodriguez was nearly dead on the couch.   Rodriguez later died from the second gunshot, which entered through the back of his neck.

Jeanette Stuker, who was with Freeburg and Kuhn on the night of the murder, was waiting in Freeburg's truck while he and Kuhn went into Rodriguez's apartment.   Stuker testified that she had taken drugs that evening and was in and out of consciousness while she waited in the truck.   She woke up when she heard screaming and the sound of two gun shots.   According to Stuker, when Freeburg and Kuhn returned, Freeburg was bleeding.   While they were driving away, Freeburg told Stuker that the guy in the apartment hit him with a lamp and Freeburg shot him.   She asked Freeburg if the guy he shot was dead and Freeburg said he didn't think so, because he shot him in the stomach.   Freeburg also said that he left his prescription glasses in the apartment and he was afraid the police would be able to identify him through his glasses.   Freeburg then said something to Stuker to the effect that he needed to leave the country.

Freda Kuhn testified that a day or two before the shooting, Freeburg and her nephew, Larry Kuhn visited her.²  She said that during that visit, Freeburg and Kuhn told her they were planning to steal money from a Mexican who had a large sum of money.   They also said they planned to steal drugs from him because he was selling drugs to children.

At trial, Freeburg admitted he shot Rodriguez, but claimed it was self defense.³  He denied there was a plan to rob Rodriguez.   According to Freeburg, he and Kuhn went to see Rodriguez about an automobile trade.   Rodriguez invited them into the apartment.   Kuhn and Rodriguez argued about money and drugs.   The argument escalated into a fight and Freeburg separated the two men.   Freeburg said that as he turned towards Kuhn, Rodriguez hit him in the back of the head with an unknown object, knocking him to his knees.   Freeburg looked up, saw Rodriguez pointing a gun at him at close range, and rushed at Rodriguez.   As the two wrestled, the gun fired once, and Freeburg then got control of it.   Rodriguez kneed Freeburg and grabbed his crotch.   Freeburg testified that he fired the gun without looking or thinking and Rodriguez fell to the couch.⁴  Kuhn grabbed the gun, and he and Freeburg left in Freeburg's truck.

The day after the shooting, Freeburg went to work to arrange to have a co-worker deposit his paycheck.⁵  He spent the next four days traveling in northwest Washington.   On the fifth day, Freeburg signed on as a crew member for a boat sailing to Mexico.   Six months later, he sailed from Mexico to Canada.   In Canada he assumed a false identity, carried false identification, and changed his appearance.   In February 1997, he was arrested by Canadian authorities.

The State originally charged Freeburg with one count of first degree murder with a firearm.   The State later added one count of first degree burglary with a firearm and one count of second degree assault with a firearm.   Freeburg was convicted on all three counts and he appealed.   This court reversed and remanded for a new trial on the ground that it was prejudicial error to admit evidence that Freeburg possessed a weapon when he was arrested in Canada.⁶  Following the second trial in March 2002, Freeburg was again convicted on all three counts.   The trial court found he is a persistent offender and sentenced him to life in prison without the possibility of parole.   Freeburg appeals.

A majority of the panel has determined that only the part of the opinion that addresses the comparability of Freeburg's federal bank robbery conviction should be published.   We, therefore, address that issue first.

Comparability of Prior Federal Conviction

Freeburg argues that his prior conviction under 18 U.S.C. § 2113(a) for bank robbery is not comparable to the crime of second degree robbery in Washington because the Washington crime requires proof of intent to steal whereas federal bank robbery is a general intent crime and does not require such proof.⁷

 Under the POAA, a persistent offender, one who has been convicted of two “most serious offenses,” must be sentenced to life without parole when convicted of a third most serious offense.⁸  Under RCW 9.94A.030(23)(o), second degree robbery is a most serious offense for purposes of the POAA. Convictions from other jurisdictions, including federal convictions, which are comparable to Washington's most serious offenses, are counted as prior convictions.⁹  “To determine whether a foreign conviction counts toward an offender score, the sentencing court first compares the elements of the crime in the out-of-state statute to those of the comparable Washington statutes in effect when the crime is committed.” ¹⁰

In State v. Bunting,¹¹ this court addressed the comparability of the crime of armed robbery in Washington and armed robbery in Illinois.   While the Washington crime requires proof of specific intent to steal, the Illinois crime did not, and only required proof of general intent.   Because the elements of the crimes differed, this court looked to exhibits in the record to determine whether Bunting's conduct for the Illinois conviction would have violated the crime of armed robbery in Washington and concluded that the only acts the court could consider were the “elements of the crime stated in the indictment.” ¹²  The Illinois indictment stated that “by the use of force and while armed with a dangerous weapon [Bunting] took an amount of United States currency ․” ¹³ Because the indictment did not allege an intent to deprive nor did it “ ‘clearly indicate that this element was proven or conceded’ ” by Bunting, this court held the trial court erred in concluding that Bunting's Illinois conviction was comparable to a Washington conviction.¹⁴

 The indictment in Freeburg's federal bank robbery case charged that Freeburg and a codefendant “by force, violence and intimidation, did take from the person and presence” of others $5,667 in money belonging to the Peoples National Bank of Washington.¹⁵ As in Bunting, the indictment contains no allegation that Freeburg had the specific intent to steal.   Nor does the record show that Freeburg conceded this element.   The trial court erred in concluding that Freeburg's federal conviction was comparable to a second degree robbery conviction in Washington.   We affirm Freeburg's convictions but remand for resentencing consistent with this opinion.¹⁶

The remainder of this opinion has no precedential value.   Therefore, it will not be published but has been filed for public record.   See RCW 2.06.040;  CAR 14.

Evidentiary Rulings

A trial court's decision to admit evidence is reviewed for abuse of discretion.17  A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons. 18  An error in admitting evidence that does not result in prejudice to the defendant is not grounds for reversal.19  An error is not prejudicial unless within reasonable probabilities, the outcome of the trial would have been different.20

Admission of co-conspirator's statement

Freeburg argues the trial court erred by admitting Freda Kuhn's testimony under ER 801(d)(2)(v) 21 because it failed to determine whether the hearsay statements she testified to were made in furtherance of a conspiracy. 22  The State argues that Freeburg cannot raise this issue for the first time on appeal because he did not raise or pursue it below.

Freda Kuhn testified at the first trial about statements Larry Kuhn made when he and Freeburg were visiting Freda Kuhn at her apartment before the shooting.

Freda Kuhn testified:

Q: Okay. Do you remember on the second occasion, you, Larry, and Scott having a discussion?

A: Yes, we talked about-I don't know, a lot of things, and then I knew they were getting down to what they wanted to say or something, and the next thing I heard was that they were planning to do something.

Q: What were they planning to do?

A: Well, they told me they had heard of a person who had just a[sic] received a very large amount of money and also drugs, and that this guy was selling the drugs to all the little children in the neighborhood and they thought they were going out there and not only take all his money, but get the drugs away from him, too.

․

Q: Did they tell you where this drug dealer was from?

A: No, they just said he was Mexican.23

The transcript shows that Freeburg did not raise the co-conspirator issue.   Freda Kuhn was 89 years-old when she testified at the first trial.   Before Kuhn testified, defense counsel objected to her testimony on the ground of competency because she admitted having a poor memory.   The trial court overruled the competency objection, and stated that although Kuhn had difficulty remembering some details, she was “clear and firm in her recollection” of the essential facts.24

At the second trial, the State and Freeburg agreed that Freda Kuhn was not competent to testify.25  Freeburg moved to exclude her testimony from the first trial on the ground that she was not competent.   The court heard nearly two days of testimony about whether Freda Kuhn was competent to testify at the first trial.   The court denied Freeburg's motion and gave an extensive ruling outlining the reasons why she was competent to testify in the first trial.   Freeburg's written motion makes no mention of the exclusion of Kuhn's testimony under ER 801(d)(2)(v) and Freeburg did not argue her testimony should be excluded on this basis.   The trial court, therefore, did not rule on whether the State has shown a prima facie case of conspiracy and whether the statements were made during the course of and in furtherance of a conspiracy.   Freeburg cannot, therefore, raise this evidentiary issue for the first time on appeal.26

Photograph of Freeburg.

The parties entered into a stipulation prior to the second trial about Freeburg's arrest and detention in Canada, the Canadian authorities' investigation, and Freeburg's extradition from Canada to the United States. 27  The State and Freeburg agreed to present only limited evidence about Freeburg's activities and arrest in Canada:  that Freeburg fled the United States after the shooting;  that a warrant was issued for his arrest based on the charges against him;  that Freeburg was contacted in Canada on February 6, 1997;  that when he was contacted he used the names Michael Karran and Michael Kearnes;  and that when he was identified as Scott Freeburg, he was returned to the United States.

Freeburg argues the trial court's decision to admit a 1997 photograph taken at the time of his arrest in Canada was contrary to the stipulation.   The State argued below that the prosecutor stated the photograph was not discussed when the parties negotiated the agreement and the stipulation did not cover it.   In response, Freeburg claimed the stipulation precluded its admission.28

The State introduced the photograph during Darlene Martinez's testimony.   Martinez testified that the photograph of Freeburg depicted the same person who came to her apartment and shot Rodriguez.   After a sidebar, the court admitted the photograph.   Defense counsel later objected and moved for a mistrial on the ground that admission of the photograph was barred by the stipulation.   The court disagreed:

I think this stipulation speaks for itself, and there's nothing in here that restricts the use of a photograph.   It talks about activities in Canada.

So the fact [that] this photograph was taken on one side of the border or the other, I think it's neither-has nothing to do with that stipulation.[[29]

We agree with the trial court.   The stipulation addresses only evidence about the circumstances related to Freeburg's arrest in Canada.   There was no evidence presented that the photograph was taken in Canada.   Its admission was not in violation of the stipulation and was not an abuse of discretion. 30

Scope of cross examination and impeachment of Darlene Martinez

Darlene Martinez was convicted in 1992 for assaulting her young child.   When Martinez lived with Rodriguez, her children were in the custody of Child Protective Services (CPS).  Before the first trial, Freeburg argued he should be able to present evidence that Martinez's children were in State custody to impeach her.   After reviewing the CPS file, the court ruled that nothing contained in the file was relevant to the case against Freeburg and denied the motion to impeach her with this evidence.   In the first trial, the court allowed Freeburg to question and impeach Martinez with evidence that she was convicted in 1992 of an unnamed felony, that she was sentenced, and that she was on probation at the time of the shooting.

Prior to the second trial, Freeburg asked the court to reconsider its ruling and argued he should be allowed to present evidence regarding all the facts of Martinez's assault conviction, including the fact that she initially lied about her responsibility for the assault and injuries.   Freeburg also wanted to present evidence that her children were in State custody to show that Martinez had a motive to whitewash her lifestyle and deny any involvement or contact with drugs because it would be detrimental to her chances of regaining custody of her children.31  Because Martinez could not possess a firearm as a result of the assault conviction, Freeburg claimed she had an interest in denying that she lived in a home where a firearm was kept and was available to her.   Freeburg did not argue that the identity of the victim of Martinez's 1992 assault was relevant or admissible.   Freeburg specifically argued that he should be able to show:  Martinez's children were in State custody, her contact with them was subject to court supervision and probation, and her involvement in drugs would jeopardize her ability to regain custody.32  In response to Freeburg's argument about Martinez's motive to whitewash, the State pointed out that his argument was speculative.   There was no evidence showing what the relationship was between Martinez and CPS at the time of the incident, or what she was required to do to regain custody of her children.   Freeburg did not respond to the State's argument or identify evidence that showed such a motive.

The court granted Freeburg's motion to reconsider in part.   The court agreed Freeburg could cross examine Martinez about the nature of her 1992 conviction and the resulting injuries, her initial denial of responsibility for the assault, the probation resulting from the conviction and her inability to possess a firearm.   The court ruled that the fact that the victim of the assault was her own child was inadmissible and did not change its ruling regarding the custody status of Martinez's children because the evidence was “more prejudicial than probative”.33

The scope of cross examination to impeach a witness's credibility is a decision within the trial court's discretion.34  The trial court abuses its discretion only when the decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons.35

The trial court allowed the defense to elicit extensive information on cross examination about the 1992 assault conviction.   Martinez explained that she intentionally assaulted someone on February 20, 1992 and put that person in a coma.   She testified that when she called 911 to report the assault she lied to the 911 operator and said it was an accident.   Martinez said she also lied to the officers who arrived at her apartment about her responsibility for the injuries to the victim.   She told the officers someone else may have caused the accident and injuries.   Martinez testified that she likewise lied to the detectives who investigated the matter.   Martinez later admitted she had lied about the incident, pled guilty to the assault charge, spent nine months in prison, was on probation, and understood she could no longer own or possess a firearm.   Martinez also admitted to lying when she called 911 the night Rodriguez was shot, and telling the operator she did not know anyone named Martine Gomez, when in fact Gomez had lived in the apartment with Martinez and Rodriguez and was Rodriguez's best friend.

On appeal, Freeburg argues the trial court abused its discretion by precluding him from presenting evidence that the victim of Martinez's assault was her own child and her children were in CPS custody at the time of the shooting.   Freeburg claims this evidence shows Martinez had a motive to lie because of the requirements for regaining custody of her children and rebuts her testimony that she did not know Rodriguez was a drug-dealer or owned a gun.36

There is no dispute that the evidence about Martinez assaulting her own child was highly prejudicial and Freeburg did not argue below that the identity of the victim of the assault was admissible.   Nor did Freeburg argue below that the evidence regarding CPS custody of Martinez's children was relevant to the issue of Rodriguez's gun ownership.37

The prejudicial evidence about the custody of Martinez's children was at most pertinent only to the issue of whether she was being truthful about her knowledge of Rodriguez's involvement in selling drugs.   This evidence did not show she had a motive to lie about what happened the night of the shooting and there was a substantial amount of other evidence which undermined Martinez's denial of any knowledge of Rodriguez's drug activity.   Stuker, who had lived with Rodriguez and Martinez, testified that the fact that Rodriguez and Martine Gomez sold drugs was not a secret and was a matter of common knowledge.   Defense counsel also effectively undermined Martinez's testimony by showing how improbable it was that she lived with Rodriguez and yet had no idea where he went everyday and where his money came from.   Exclusion of the evidence about the victim of Martinez's assault and CPS custody of her children was not an abuse of discretion.

Intervention in Jury Deliberations

Freeburg alleges several instances of improper intervention by the court in jury deliberations.   He contends the court had improper ex parte contact with the jury through the bailiff, improperly instructed the jury that it must reach an agreement, and impermissibly exerted pressure over the jury to reach a verdict.

After the jury had been deliberating for five days, the trial court informed the parties of its intent to call the jury back into the courtroom to ask about the progress of their deliberations.38  The lawyers for both the State and Freeburg opposed this inquiry and told the court they thought it was premature at that point in the deliberations.   The judge agreed to “revisit this issue in 24 hours.” 39  At about 3:40 p.m., at the conclusion of this discussion between the court and counsel, the jury informed the court that it had reached a verdict and several jurors needed to leave by 4:00 or 4:15 p.m.

When the jury was brought into the courtroom, the foreman told the court the jury had “reached the verdicts.” 40  At the court's direction, the bailiff had already told the jury the court might be calling them back to the courtroom to ask a question.   The court did not tell counsel about this contact but before receiving the verdict the judge said:

All right, if you would-I want you to hold those [verdict forms] for a minute.   Literally, moments before you buzzed back there, ․ I had instructed the bailiff to come back and let you know that I was going to call you out here to ask you a question.

I want to know if, in any way, that had any impact or effect on your deliberations.   Let me-I'm just going to start and go down the list here, and I don't mean to single anyone out, but I feel it essential that I ask this question.[41]

The judge then asked each juror whether the bailiff's telling them the judge was going to ask them a question had any impact or effect on their deliberations.   Each juror answered, “no.”   The court told the jury it was ironic that the jury reached its verdict while the court was considering whether to ask them about their progress.

The foreman then delivered the general and special verdict forms to the court.   The jury had not completed the general verdict forms asking whether the jury found that Freeburg had committed the three charged crimes.   The jury had completed only the special verdict form, for the firearm enhancements.   In the special verdict form, the jury answered “yes” to the question, asked with respect to each of the three crimes, whether Freeburg was “armed with a firearm at the time of the commission of the crime” in counts I, II and III.42 When asked why the general verdict form was not completed, the foreman explained that it was not clear that the jury had to use both verdict forms.   The foreman stated:  “In the instructions that we received, Instructions 44 and 45 indicated that, based on our findings, we were to use the special verdict form.” 43

The judge instructed the jury to continue its deliberations:

I'm going to have to send you back-you're going to need to vote on and-let me get those verdict forms out-the verdict forms you filled out coincide with Verdict Forms A.

If you find the Defendant not guilty, do not use a special verdict form.   You-I'm going to ask you to retire at this point and you're going to need to deliberate and to vote on the Verdict Form A, ․

Yes, I'm going to ask you to retire and deliberate those verdicts and you'll have to reach answers one way or the other on those.[44]

Given the time of day, the judge suggested that the jury take the evening off and return in the morning, but left it up to the jury to decide whether to continue deliberations or leave for the day.

Defense counsel moved for a mistrial because the court instructed to the jury to deliberate further.45  The court denied the motion.

The next day, shortly after 11 a.m., the jury said it had reached a verdict.   Before the jury was brought into the courtroom, defense counsel asked for an evidentiary hearing before a different judge and again moved for a mistrial because:  (1) the court, through the bailiff contacted with the jury and did not notify counsel, (2) the jury did not complete the general verdict forms and the “unintelligible verdict” it returned,46 (3) the court did not call a sidebar to allow the attorneys to review the verdict forms and address the appropriate response, (4) the court did not tell the jury, before deliberating further, that it should follow all of the other instructions the court provided, (5) the court's failure to instruct the jury that it need not agree and need not return a verdict, and (6) the court's telling the jury that it needed to vote on the verdict forms and return a verdict.   The court denied the request for an evidentiary hearing and denied the motion for a mistrial.

The jury found that Freeburg was guilty of all three charged crimes and that he was armed with a firearm at the time he committed each of the crimes.

On appeal, Freeburg argues the trial court denied him a fair trial and violated CrR 6.15(f)(2) 47 when it instructed the jurors they had to reach answers on the general verdict forms “one way or the other.” 48  CrR 6.15 prohibits the court from suggesting the need for agreement, the consequences of no agreement, or the length of time the jury will be required to deliberate.49  The trial court is also constrained by the broader principle that “the jury must be free from judicial pressure in reaching its verdict.” 50

The proper inquiry on review is whether the court's intervention “tended to and most probably did influence the minority jurors to vote with the majority.” 51  For example, in State v. Boogaard, the Supreme Court held that the trial court improperly influenced the jury when it polled the jury as to the likelihood of reaching a verdict within 30 minutes.   But, in State v. Watkins, the Court held that a supplemental instruction that it characterized as a “carefully neutral explanation of the earlier instructions clarifying an ambiguity present in verdict form B” was proper.52  The Watkins Court held:

a defendant must provide more than mere speculation about how the trial court's intervention might have influenced the jury's verdict.   Rather, a defendant must establish a reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention.[53]

We conclude the court's statement that the jury had to return to the jury room to deliberate and reach answers “one way or the other” did not suggest the need for agreement.   Rather, the court was telling the jury that it could not ignore the general verdict forms and return only the special verdict form.54  The court's instruction did not suggest how to complete the forms, the consequences of no agreement or the length of time the jury would be required to deliberate.   Further, the trial court was careful to tell the jury to take as much time as it needed in order to complete the general verdict forms.

Most significantly, Freeburg cannot establish a reasonably substantial possibility that the verdict was improperly influenced by the trial court's statements.   Before the court addressed the jury, the jury had determined, in the special verdict form, that he was guilty of all three crimes.   The instructions told the jury:  “If you find the defendant guilty, you will then use the special verdict form and fill in the blanks with the answer yes' or no' according to the decision you reach.” 55  The questions on the special verdict form were worded as follows:  “Was the defendant SCOTT ALAN FREEBURG armed with a firearm at the time of the commission of the crime in Count I? ”  56

Freeburg argues the trial court was required to tell the jury, before sending it back to deliberate on the general verdict form, that its previous instructions still applied.   The two cases Freeburg relies on do not support his argument.   In State v. Lee,57 although such an instruction was given, the court did not hold that the jury must be instructed that previous instructions still apply.   In Jiminez v. Myers,58 the trial court continually asked for a numerical breakdown in the jurors' voting.   According to the Ninth Circuit, the trial court's comments “effectively instructed the jury to make every effort to reach a unanimous verdict” and encouraged “the jurors in the majority to hold their position and persuade the single hold-out juror to join in a unanimous verdict.”

Freeburg also contends the court, through the bailiff, improperly pressured the jury to reach a verdict.   After the trial, defense counsel learned that at some point during jury deliberations, the bailiff asked the foreman whether the jury needed the jury room for the next day.59  The foreman responded that the jury would need the room.   At the time, the bailiff did not inform the court or counsel about this contact with the jury.60

As a general rule, the trial court should not communicate with the jury in the absence of the defendant.61  This rule applies to the bailiff, who acts as the alter-ego of the judge.62  “When an ex parte communication takes place that relates to an aspect of the trial, the trial judge ‘generally should disclose the communication to counsel for all parties.’ ” 63 Although improper communication between the jury and the court is constitutional error, if the communication is inconsequential, it is harmless error.64  It is the State's burden to show the error is harmless beyond a reasonable doubt, but the defendant must first raise the possibility of prejudice from the improper communication.65

In State v. Bourgeois,66 a juror approached the bailiff during trial and told her that a spectator in the courtroom was glaring at a witness.   The bailiff told the trial court, but the court did not advise counsel of the incident.   The Supreme Court held that although the communication between the juror and the bailiff was improper because the court did not promptly notify counsel of it, the improper communication did not justify a new trial because the defendant was not prejudiced by it.   Relying on State v. Johnson,67 the Court in Bourgeois held that the error was harmless because the trial court did not communicate any affirmative information to the jurors.

Similarly here, the communication between the bailiff and the jury foreman was improper because the inquiry could be construed as improperly pressuring the jury to reach a verdict.   But the foreman's response and the jury's further deliberation indicate that the jury was not improperly influenced in this case.   The foreman told the bailiff the jury would be using the jury room the following day, and the jury continued to deliberate.   In short, even though the communication was improper, Freeburg has not raised the possibility of prejudice.

Finally, Freeburg argues his conviction must be reversed because, after the court directed the jury to return to the jury room to continue deliberations, some of the jurors went home and others stayed to work on formulating a question for the court.   It appears from the record that after some of the jurors left the jury room and went into the hallway, the bailiff asked them to return and then released the entire jury for the day.   The following day, the jury continued to deliberate and did not ask a question.   Freeburg has not demonstrated he was prejudiced by these events.

Replaying Trial Testimony

Freeburg's testimony from the first trial was recorded on videotape.   Freeburg did not testify at the second trial and did not object to the State's presentation of his videotaped testimony because it was critical to support his defense of self defense.   The only dispute between Freeburg and the State at the second trial was whether to present the testimony by reading the transcript or by playing the videotape.   The court allowed the State to present the testimony by videotape because it was “the best presentation.” 68

Before playing the videotape of Freeburg's testimony, the court instructed the jury that it give the testimony the same consideration, judge its credibility, and weigh it in the same way as if Freeburg were testifying from the witness stand.   The court instructed the jury:

Ladies and gentlemen, you're about to view some prior sworn testimony.   So, consistent with that instruction I gave you the other day about some other testimony, let me again repeat it.

Evidence is now to be presented to you by means of prior testimony.   In this case it's going to be a videotape.   This prior testimony was given on November-give me the date again-November-

[PROSECUTOR]:  The 3rd, Your Honor.

[THE COURT]:  November 3, 1998.   November 3, 1998.   Prior testimony in this instance is prior sworn testimony given by a witness, in the presence of the Court after an oath had been administered and in the presence of lawyers for each party who in turn asked questions.   This testimony is entitled to the same consideration and is to be judged as to credibility and weighed and ․ otherwise considered by you insofar as possible in the same way as if the witness [were] testifying from the witness stand.[69]

On the second day of deliberations, the jury asked the court to replay Freeburg's videotaped testimony for them.   The court discussed the jury's request with both counsel by telephone, heard argument and denied the request.   The court instructed the jurors to rely on their collective notes and memories.   Defense counsel objected to the court's ruling.

On appeal, Freeburg argues the trial court abused its discretion in refusing to allow the jury to watch his trial testimony again during deliberations.   An appellate court reviews a trial court's decision to allow the jury to reread transcripts of trial testimony for an abuse of discretion.70

In State v. Koontz,71 the Court addressed the issue of whether and under what circumstances a jury may review videotaped trial testimony during its deliberations.72  The Court noted that the jury is generally advised in the instructions that it will not be provided with a written copy of the testimony during deliberations and that reading back trial testimony during deliberations is disfavored because of the danger that the jury may place undue emphasis on testimony it considers a second time.73  The Court concluded that replaying videotapes of trial testimony raises even greater concerns because the change in media from a live to a videotaped presentation may alter the jury's perspective of the testimony.74  The Court held that if a court replays videotaped trial testimony, it must apply protections to prevent the jury from giving the videotape undue emphasis and noted that it is “seldom proper to replay the entire testimony of a witness.” 75  The Court in Koontz concluded the trial court abused its discretion by allowing the jury to view videotapes of trial testimony without sufficient precautions.

Freeburg argues the trial court was required to consider Koontz and the court abused its discretion by failing to give reasons for its decision and failing to ask for a more specific request from the jury, for example, whether they wanted to view a specific part of the testimony.   But the record of the colloquy shows the court had read Koontz and was presented with lengthy arguments based on Koontz regarding the risk of prejudice and the possible alternative of asking the jury to narrow its request to specific portions of the testimony or supervising the jury's viewing of the videotape.76  The court's decision not to allow the jury to watch the videotape a second time was not an abuse of discretion.

Prosecutorial Misconduct

Freeburg testified that two days after the shooting, his landlord told him that Sergeant Gebo was trying to contact him.   The landlord gave Freeburg Gebo's card and told Freeburg that Gebo would not be back at work until Monday.   When asked whether he ever called Gebo, Freeburg answered:  “I wanted to, but, no, I did not.” 77  Freeburg's testimony on cross examination was to the same effect, namely, that he knew Gebo was trying to get reach him, but that Freeburg never contacted him.   Freeburg also testified that he likewise did not call anybody else at the Seattle Police Department and that, instead of calling Gebo on Monday, he left and sailed to Mexico.

During closing argument, Freeburg argued his testimony and version of the events was more credible than the State's evidence.   In rebuttal, the State argued that the evidence did not support Freeburg's description of what happened in part because of the choices Freeburg had made.   The prosecutor argued:

Let's talk about the Defendant's choices very briefly.   He chose to be with Jeanette Stuker that night.   The heroin addict hooker, and now he complains, well, she's not really very reliable.

The Defendant chose to go to Darlene and Jose's apartment at one o'clock in the morning, and now he sort of complains that those are sort of shady people, with some kind of a past, particularly Jose, the fact that he's an illegal or has other names.   I have no idea what bearing that has on this case, other than it's sort of gratuitously kind of kicks him around it, and maybe you'll care less about him as a result.   I don't know what it has to do with this case.

The Defendant chose to take the weapon from the apartment, and now wants you folks to speculate about that weapon being somehow in the hands of the victim at some earlier point in time.   And that was a choice that he made.

The Defendant chose not to talk to the police.   But he wants you to believe that he had this great story to tell.

[DEFENSE COUNSEL] Your Honor, I would object.   It's commenting on the Defendant's right to remain silent.

[THE COURT]:  Overruled.   You may continue your argument.   Objection noted.

[PROSECUTOR]:  He wants you to speculate about this great story that he had to tell, even though he fled.   And it's interesting, isn't it?   Because what got left?   Business cards, over at all these different places.   Business cards.   And the Defendant says, I was too afraid to talk to anybody.

Well, before you hop on a boat and go to Mexico, you know, you can for a whole quarter, you can sit there and say, Detective Gebo, you know, this Scott Freeburg.   And I'm not going to tell you where I am right now, but I got a story to tell you.   And I'm afraid you won't believe it, but I'm going to tell you anyway.   Let me tell you what really happened that night.   No. And do you know why?   Because this was his state of mind.   He hadn't cooked the story up yet.   He was still stuck in the, oh, I made a terrible mistake-

[DEFENSE COUNSEL]:  Your Honor, I'm going to raise the objection.   It's commenting on the Defendant's right to remain silent.

[THE COURT]:  Right.   Objection noted.   It's overruled.   You may continue argument.

[PROSECUTOR]:  This is his state of mind.   He's still stuck on the, I really did a bad thing.   Honey, don't hate me.   It couldn't be more clear.

What other choices did he make?   He made the choice to lie to his girlfriend about his wound, and remained silent about this event, even though he knew she'd learn the truth.   And he made the decision to flee the country for the better part of three years.   But he wants you to speculate again about this great story that he had to tell all along.

There's only one witness in this case that meaningfully, meaningfully, supports a claim of self-defense, and that's the Defendant.   And that's a witness that's not worthy of belief.   That's why the State put his testimony from ′99-1998 before you.   It's important that you heard the version that he came up with then, and we wanted you to hear that.

His claim of self-defense is betrayed by his words.   It's betrayed by his deeds.   And it's betrayed by his own silence.

[DEFENSE COUNSEL]:  Objection, Your Honor.   The Defendant has the right to remain silent.

[THE COURT]:  Yes. And the jury has been so instructed.

․

[THE COURT]:  Objection's overruled.   You may continue argument.[78]

On appeal, Freeburg contends that the prosecutor's argument was an impermissible comment on his right to remain silent.   A prosecutor may not make an argument relating to a defendant's silence in order to infer guilt from such silence.79  Included within this prohibition is the use of the defendant's prearrest silence to infer guilt.80  But, “the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence.” 81

[I]mpeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.   We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility.[82]

Freeburg's testimony was essential to his defense of self defense and his closing argument.   The State's rebuttal argument related to Freeburg's failure to contact Detective Gebo was used to impeach his testimony and respond to his defense.   The prosecutor's comments were not an improper comment on Freeburg's right to remain silent.

Pro Se Issues

Trial Court Bias

After the jury returned its verdict, Freeburg asked the trial court to recuse itself on the ground that it was biased against him and in favor of the State.   The trial court denied the motion.   In his pro se brief, Freeburg argues the trial court erred by denying his motion to recuse.   In order to prevail on this claim, Freeburg must show evidence of actual or potential bias.83

Two grounds for recusal raised by Freeburg are already discussed in this opinion:  the trial court's decision not to allow Freeburg to present evidence that the victim of Martinez's assault was her child, and the court's alleged improper intervention in jury deliberations.   Because the court did not abuse its discretion by limiting the scope of cross examination and Freeburg has not raised the possibility of prejudice with respect to the court's contact with the jury, neither of these grounds required recusal.

Next, Freeburg cites the court's intervention during Freeburg's cross examination of two of the State's witnesses when the court sua sponte objected to defense counsel's questions as asked and answered. The record shows that the court was exercising its authority under ER 611 to control the mode of interrogating witnesses in order to avoid the needless consumption of time.   There is no evidence that the court intervened in cross examination because it was biased against Freeburg.

Freeburg also cites the fact that the trial court ordered extra security because the court had information that Freeburg was planning to escape during trial.   Freeburg argues that the presence of added security was prejudicial.   But the decision to order extra security does not show bias because the court had a valid reason for ordering it.   And the extra security did not prejudice Freeburg because the jurors stated they were unaware of the added security.

Freda Kuhn's prior testimony

Freeburg argues the trial court should not have allowed Freda Kuhn's testimony from the first trial to be read to the jury in the second trial because she was not competent to testify at the first trial.

As previously explained, the court did not abuse its discretion by allowing Freda Kuhn's testimony to be read to the jury in the second trial.84

Agreements Between the State and Witnesses

Freeburg argues the State made a “deal” with Stuker in exchange for her favorable testimony at Freeburg's trial and the State had a duty to disclose this agreement, which he characterizes as a plea agreement.   There is no evidence of any agreement between Stuker and the State.   Stuker testified she did not receive favorable treatment as a result of being a witness in Freeburg's trial.85  She said she was testifying in the case because “it's the right thing.” 86

Freeburg also argues that, in exchange for Martinez's testimony, Sergeant Gebo arranged for Martinez to regain custody of her children.   He cites to nothing in the record to support this.   Sergeant Gebo testified that he did not make a deal with Martinez in exchange for her testimony.   Because there is no evidence in the record of an agreement, we reject this argument.

Disclosure of Exculpatory Evidence

Freeburg argues the State failed to disclose numerous pieces of exculpatory evidence and he was thereby denied the opportunity to present a defense.   He cites to a pretrial statement by the court ordering the State to disclose exculpatory information to the defense.87

Freeburg argues the State violated this order by failing to disclose a CO2 gun found in Rodriguez's apartment after the shooting. He argues that the CO2 gun could have been the object Rodriguez used to hit Freeburg when the two were fighting.   Detective O'Keefe testified that he examined the gun at the crime scene and, because he did not find any hair or blood on it, did not take it into evidence.   O'Keefe also testified that he searched the apartment and did not find any hard, sharp objects with blood or hair on them, but if he had found such objects, he would have taken them into evidence. Because it does not appear from the record that the CO2 gun was exculpatory evidence, the State did not violate its duty to disclose exculpatory evidence or deny Freeburg his right to present a defense.

Freeburg next argues about a ring that belonged to Rodriguez.   Detective Gebo testified that Rodriguez's ring could have caused the cut on Freeburg but that he examined the ring with a magnifying glass and found no blood on it.   He did not send the ring to a lab for testing, and instead released it to Martinez.   Freeburg argues that, without the ring, he could not prove Rodriguez hit him and cut him with a weapon instead of with the ring.   But any error in not preserving the ring for testing was harmless in light of Gebo's testimony that he saw no blood or hair on the ring when he examined it under a magnifying glass.

Next, Freeburg argues the State destroyed evidence about car trading activities.   But his written argument suggests that defense counsel, not the State, knew about this evidence.   Also, there is nothing in the record to substantiate Freeburg's assertion that the investigating officers destroyed the title to a car owned by Stuker.

Prosecutorial Misconduct

Freeburg makes numerous allegations about misconduct committed by the prosecutor.   Some of his objections pertain to the prosecutor's closing arguments.   In addition to the argument already addressed that the prosecutor improperly commented on his right to remain silent, Freeburg argues that the prosecutor improperly shifted the burden of proof during closing argument.   Freeburg objected numerous times during rebuttal argument on this ground, and the court overruled all of the objections.   The trial court properly overruled defense counsel's objections because the statements were within the prosecutor's latitude to draw reasonable inferences from the evidence. 88  Also, the statements were minor parts of closing argument and insignificant in the context of the lengthy trial, so even if the rulings were error, Freeburg was not prejudiced by them.89

Other alleged instances of misconduct, such as vouching for the credibility of witnesses, were not objected to below.   The failure to object constitutes a waiver of the error unless the statement was “so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” 90  The alleged instances of misconduct do not fall within this standard, and Freeburg's claim of error is waived.

Freeburg next discusses the court's direction that each side give the other 24-hours advance notice of the witnesses each side intended to call the next day.   The court also ordered 24-hours advance notice of any statement or other evidence one side intended to use to impeach a witness and disclosure of exhibits before showing them to the jury.   Freeburg argues the State violated this rule by displaying the photograph of Freeburg taken at the time of his arrest before disclosing it to defense counsel.   But, defense counsel specifically told the court:  “I have seen the photograph before.” 91  And because the photograph did not violate the stipulation about disclosure of events in Canada and was properly admitted, Freeburg was not prejudiced. 92

Accomplice Liability Instruction

Freeburg argues that the trial court erred by including “or an accomplice” in the jury instructions.   Under State v. Rice,93 the accomplice liability instruction was probably not necessary.   In that case, both defendants were charged with felony murder as principals, not accomplices.   The felony murder statute, RCW 9A.32.050(1)(b), establishes the nonkiller participant's complicity in the homicide as a principal.   Accordingly, the Court held that “as these defendants were charged as principals, any accomplice liability instruction was not relevant to the crime charged.” 94

Here, there is no evidence on which the jury could have convicted Freeburg of murder based on the acts of the other participant, Larry Kuhn. There is no evidence that Kuhn shot Rodriguez.   In fact, Freeburg admits he shot Rodriguez.   Any error in including the accomplice liability instruction was harmless.

Constitutional Challenges to POAA

Freeburg argues the United States Constitution requires a jury determination of his prior convictions.   In State v. Wheeler,95 the Washington Supreme Court held that prior convictions resulting in a sentence under the POAA need only be determined by the trial judge at the sentencing hearing by a preponderance of the evidence.   Freeburg's argument that Wheeler's holding is undermined by the U.S. Supreme Court's decision in Ring v. Arizona, 96 and that the state constitution requires a jury determination of his prior convictions were recently rejected by our Supreme Court in State v. Smith. 97

We affirm Freeburg's convictions but vacate his sentence and remand for resentencing.

FOOTNOTES

1.   This court reversed his first conviction and remanded for a new trial.  State v. Freeburg, 105 Wash.App. 492, 20 P.3d 984 (2001).   Some of the facts here are taken from this court's first opinion.

2.   Freda Kuhn testified at the first trial in 1998.   Because she was in a nursing home and not competent in the second trial, the transcript of her testimony was read to the jury.

3.   Freeburg testified at the first trial.   In the second trial in 2002, his videotaped testimony from the first trial was played to the jury.

4.   Freeburg's account of the shooting was undermined by the testimony of his medical expert who described the fatal shot to the back of Rodriguez's neck as “well-placed” and indicative of the shooter having “good control over the victim”.   17RP 3027.

5.   He never returned to his workplace and never accessed his bank account.

6.   Freeburg, 105 Wash.App. at 492, 20 P.3d 984.

7.   Compare State v. Kjorsvik, 117 Wash.2d 93, 110, 812 P.2d 86 (1991) (intent to steal is a nonstatutory element of robbery in Washington) and Carter v. United States, 530 U.S. 255, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (conviction for federal bank robbery under 18 U.S.C. 2113(a) requires only proof of general intent, that is, proof that the defendant possessed knowledge with respect to the actus reus of the crime, but does not require proof of intent to steal).

8.   RCW 9.94A.120.

9.   RCW 9.94A.030(23)(u).

10.   State v. Mutch, 87 Wash.App. 433, 436, 942 P.2d 1018 (1997).

11.   State v. Bunting, 115 Wash.App. 135, 61 P.3d 375 (2003).

12.   Id., 115 Wash.App. at 143, 61 P.3d 375.   These were the only acts conceded by Bunting in his guilty plea.

13.   Id, at 142, 61 P.3d 375.

14.   Id. at 143, 61 P.3d 375.

15.   Exhibit 8.

16.   Although this case is factually similar to State v. Mutch, Mutch was decided without the benefit of the analysis in Bunting and Carter.   Indeed, the State conceded at oral argument that under the more recent cases of Bunting and Carter federal bank robbery is not comparable to the crime of robbery in Washington.

FN17. State v. Neal, 144 Wash.2d 600, 609, 30 P.3d 1255 (2001)..  FN17. State v. Neal, 144 Wash.2d 600, 609, 30 P.3d 1255 (2001).

FN18. Id..  FN18. Id.

FN19. State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997)..  FN19. State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997).

FN20. Id..  FN20. Id.

FN21. ER 801(d)(2)(v) provides that a “statement by a coconspirator of a party during the course and in furtherance of a conspiracy” is not hearsay and is admissible..  FN21. ER 801(d)(2)(v) provides that a “statement by a coconspirator of a party during the course and in furtherance of a conspiracy” is not hearsay and is admissible.

FN22. State v. St. Pierre, 111 Wash.2d 105, 118-19, 759 P.2d 383 (1988)..  FN22. State v. St. Pierre, 111 Wash.2d 105, 118-19, 759 P.2d 383 (1988).

FN23. 15RP 2736-37..  FN23. 15RP 2736-37.

FN24.  RP 10/15/98 at 50..  FN24.  RP 10/15/98 at 50.

FN25.  She was in a nursing home and had Alzheimer's disease..  FN25.  She was in a nursing home and had Alzheimer's disease.

FN26. RAP 2.5(a);  State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992).   And even if this argument had been presented below and the court found the evidence insufficient to show that Larry Kuhn's statements were made in furtherance of a conspiracy, any error in admitting the testimony would be harmless because the statements were admissible as adoptive admissions under ER 801(d)(2)(ii).   Silence by a criminal defendant can constitute an adoptive admission.  State v. Israel, 113 Wash.App. 243, 281, n. 11, 54 P.3d 1218 (2002), rev. denied, 149 Wash.2d 1013, 69 P.3d 874 (2003) (Statement qualifies as an adoptive admission if “(1) the party-opponent heard an accusatory or incriminating statement and was mentally and physically able to respond and (2) the statement and circumstances were such that it is reasonable to conclude that the party-opponent would have responded had there been no intention to acquiesce.”).   The record shows that Freeburg was in Freda Kuhn's apartment when Larry Kuhn described their plan to take money and drugs from a Mexican dealer.   There is no suggestion that Freeburg was unable to respond to these statements and the statements were such that a reasonable person would have responded..  FN26. RAP 2.5(a);  State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992).   And even if this argument had been presented below and the court found the evidence insufficient to show that Larry Kuhn's statements were made in furtherance of a conspiracy, any error in admitting the testimony would be harmless because the statements were admissible as adoptive admissions under ER 801(d)(2)(ii).   Silence by a criminal defendant can constitute an adoptive admission.  State v. Israel, 113 Wash.App. 243, 281, n. 11, 54 P.3d 1218 (2002), rev. denied, 149 Wash.2d 1013, 69 P.3d 874 (2003) (Statement qualifies as an adoptive admission if “(1) the party-opponent heard an accusatory or incriminating statement and was mentally and physically able to respond and (2) the statement and circumstances were such that it is reasonable to conclude that the party-opponent would have responded had there been no intention to acquiesce.”).   The record shows that Freeburg was in Freda Kuhn's apartment when Larry Kuhn described their plan to take money and drugs from a Mexican dealer.   There is no suggestion that Freeburg was unable to respond to these statements and the statements were such that a reasonable person would have responded.

FN27.  Freeburg withdrew discovery requests pertaining to his arrest and detention in Canada in exchange for this agreement with the State..  FN27.  Freeburg withdrew discovery requests pertaining to his arrest and detention in Canada in exchange for this agreement with the State.

FN28.  At the time, no one had the photograph and the court reserved ruling..  FN28.  At the time, no one had the photograph and the court reserved ruling.

FN29. 11RP at 1939..  FN29. 11RP at 1939.

FN30.  On appeal, Freeburg also argues that he was prejudiced by the admission of the photograph because it was unflattering and “scary-looking.”   Br. of Appellant at 40.   But, he did not argue this ground for excluding the evidence to the trial court, and he may not raise it here.   RAP 2.5(a)..  FN30.  On appeal, Freeburg also argues that he was prejudiced by the admission of the photograph because it was unflattering and “scary-looking.”   Br. of Appellant at 40.   But, he did not argue this ground for excluding the evidence to the trial court, and he may not raise it here.   RAP 2.5(a).

FN31. 4RP at 657..  FN31. 4RP at 657.

FN32.  Clerk's Papers (CP) at 272;  358..  FN32.  Clerk's Papers (CP) at 272;  358.

FN33. 4RP at 680..  FN33. 4RP at 680.

FN34. State v. Russell, 125 Wash.2d 24, 92, 882 P.2d 747 (1994)..  FN34. State v. Russell, 125 Wash.2d 24, 92, 882 P.2d 747 (1994).

FN35. State v. McDaniel, 83 Wash.App. 179, 184-85, 920 P.2d 1218 (1996)..  FN35. State v. McDaniel, 83 Wash.App. 179, 184-85, 920 P.2d 1218 (1996).

FN36.  Freeburg argued that Martinez had a motive to lie about whether Rodriguez had a gun because as a condition of her sentence she could not own a gun.   Freeburg was allowed to present evidence about this condition and the consequences of violating a condition of her sentence.   Freeburg does not point to any evidence that showed Rodriguez owned a gun..  FN36.  Freeburg argued that Martinez had a motive to lie about whether Rodriguez had a gun because as a condition of her sentence she could not own a gun.   Freeburg was allowed to present evidence about this condition and the consequences of violating a condition of her sentence.   Freeburg does not point to any evidence that showed Rodriguez owned a gun.

FN37. RAP 2.5(a);  Walton, 64 Wash.App. at 415-16, 824 P.2d 533 (this court does not consider arguments that were not properly raised at trial)..  FN37. RAP 2.5(a);  Walton, 64 Wash.App. at 415-16, 824 P.2d 533 (this court does not consider arguments that were not properly raised at trial).

FN38.  This procedure is provided for by 11 Washington Practice Instructions Jury Instruction:  Criminal 4.70 at 116 (2d ed.1994)..  FN38.  This procedure is provided for by 11 Washington Practice Instructions Jury Instruction:  Criminal 4.70 at 116 (2d ed.1994).

FN39.  RP at 3706..  FN39.  RP at 3706.

FN40.  RP at 3709..  FN40.  RP at 3709.

FN41.  RP 3709..  FN41.  RP 3709.

FN42.  CP at 593..  FN42.  CP at 593.

FN43. 20RP at 3712..  FN43. 20RP at 3712.

FN44. 20RP at 3713..  FN44. 20RP at 3713.

FN45. 20RP at 3715-16..  FN45. 20RP at 3715-16.

FN46. 20RP at 3722..  FN46. 20RP at 3722.

FN47. CrR 6.15(f)(2) provides:After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate..  FN47. CrR 6.15(f)(2) provides:After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.

FN48. 20RP at 3713..  FN48. 20RP at 3713.

FN49. State v. Watkins, 99 Wash.2d 166, 175, 660 P.2d 1117 (1983)..  FN49. State v. Watkins, 99 Wash.2d 166, 175, 660 P.2d 1117 (1983).

FN50. Id., 99 Wash.2d at 176, 660 P.2d 1117 (citing State v. Boogaard, 90 Wash.2d 733, 585 P.2d 789 (1978))..  FN50. Id., 99 Wash.2d at 176, 660 P.2d 1117 (citing State v. Boogaard, 90 Wash.2d 733, 585 P.2d 789 (1978)).

FN51. Boogaard, 90 Wash.2d at 740, 585 P.2d 789..  FN51. Boogaard, 90 Wash.2d at 740, 585 P.2d 789.

FN52. Watkins, 99 Wash.2d at 178, 660 P.2d 1117..  FN52. Watkins, 99 Wash.2d at 178, 660 P.2d 1117.

FN53. Id. at 177-78, 660 P.2d 1117..  FN53. Id. at 177-78, 660 P.2d 1117.

FN54.  This is in contrast to the trial court's statement, held improperly coercive, in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), where the trial court told the jury:  “You have got to reach a decision in this case.”  380 U.S. at 446, 85 S.Ct. 1059..  FN54.  This is in contrast to the trial court's statement, held improperly coercive, in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), where the trial court told the jury:  “You have got to reach a decision in this case.”  380 U.S. at 446, 85 S.Ct. 1059.

FN55.  CP at 579..  FN55.  CP at 579.

FN56. (Emphasis added.)   The instruction was the same for counts II and III. CP at 593..  FN56. (Emphasis added.)   The instruction was the same for counts II and III. CP at 593.

FN57. 77 Wash.App. 119, 889 P.2d 944, rev'd on other grounds, 128 Wash.2d 151, 904 P.2d 1143 (1995)..  FN57. 77 Wash.App. 119, 889 P.2d 944, rev'd on other grounds, 128 Wash.2d 151, 904 P.2d 1143 (1995).

FN58. 40 F.3d 976, 981 (9th Cir.1993)..  FN58. 40 F.3d 976, 981 (9th Cir.1993).

FN59.  The only evidence of this communication in the record is the declaration of Freeburg's trial counsel, reporting what the bailiff said in an interview..  FN59.  The only evidence of this communication in the record is the declaration of Freeburg's trial counsel, reporting what the bailiff said in an interview.

FN60.  This communication came to light several weeks after the trial during an interview of the bailiff.   It is not clear at what point during deliberations this communication occurred..  FN60.  This communication came to light several weeks after the trial during an interview of the bailiff.   It is not clear at what point during deliberations this communication occurred.

FN61. State v. Bourgeois, 133 Wash.2d 389, 407, 945 P.2d 1120 (1997)..  FN61. State v. Bourgeois, 133 Wash.2d 389, 407, 945 P.2d 1120 (1997).

FN62. Id..  FN62. Id.

FN63. Id. (quoting Rushen v. Spain, 464 U.S. 114, 119, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983))..  FN63. Id. (quoting Rushen v. Spain, 464 U.S. 114, 119, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983)).

FN64. Id..  FN64. Id.

FN65. Id..  FN65. Id.

FN66. 133 Wash.2d at 389, 945 P.2d 1120..  FN66. 133 Wash.2d at 389, 945 P.2d 1120.

FN67. 56 Wash.2d 700, 355 P.2d 13 (1960)..  FN67. 56 Wash.2d 700, 355 P.2d 13 (1960).

FN68. 9RP 1526..  FN68. 9RP 1526.

FN69. 16RP at 2882-83..  FN69. 16RP at 2882-83.

FN70. State v. Caliguri, 99 Wash.2d 501, 509, 664 P.2d 466 (1983)..  FN70. State v. Caliguri, 99 Wash.2d 501, 509, 664 P.2d 466 (1983).

FN71. 145 Wash.2d 650, 658, 41 P.3d 475 (2002)..  FN71. 145 Wash.2d 650, 658, 41 P.3d 475 (2002).

FN72. State v. Elmore, 139 Wash.2d 250, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000), State v. Castellanos, 132 Wash.2d 94, 935 P.2d 1353 (1997), and State v. Frazier, 99 Wash.2d 180, 661 P.2d 126 (1983) are not helpful because they did not involve trial testimony.   The court in Koontz rejected the argument that trial testimony should be treated under the same standard as other exhibits.  Koontz, 145 Wash.2d at 658-59, 41 P.3d 475..  FN72. State v. Elmore, 139 Wash.2d 250, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000), State v. Castellanos, 132 Wash.2d 94, 935 P.2d 1353 (1997), and State v. Frazier, 99 Wash.2d 180, 661 P.2d 126 (1983) are not helpful because they did not involve trial testimony.   The court in Koontz rejected the argument that trial testimony should be treated under the same standard as other exhibits.  Koontz, 145 Wash.2d at 658-59, 41 P.3d 475.

FN73. Id., 145 Wash.2d at 654, 41 P.3d 475..  FN73. Id., 145 Wash.2d at 654, 41 P.3d 475.

FN74. Koontz, 145 Wash.2d at 654-55, 41 P.3d 475 (citing U.S. v. Binder, 769 F.2d 595, 601 (9th Cir.1985)).  FN74. Koontz, 145 Wash.2d at 654-55, 41 P.3d 475 (citing U.S. v. Binder, 769 F.2d 595, 601 (9th Cir.1985))

FN75. Koontz, 145, Wash.2d at 657, 41 P.3d 475..  FN75. Koontz, 145, Wash.2d at 657, 41 P.3d 475.

FN76. Koontz does not require the trial court to set forth its reasons on the record..  FN76. Koontz does not require the trial court to set forth its reasons on the record.

FN77.  RP 03/25/02 at 65..  FN77.  RP 03/25/02 at 65.

FN78. 20RP 3678-81..  FN78. 20RP 3678-81.

FN79. State v. Easter, 130 Wash.2d 228, 236, 922 P.2d 1285 (1996)..  FN79. State v. Easter, 130 Wash.2d 228, 236, 922 P.2d 1285 (1996).

FN80. Id., 130 Wash.2d at 243, 922 P.2d 1285..  FN80. Id., 130 Wash.2d at 243, 922 P.2d 1285.

FN81. Jenkins v. Anderson, 447 U.S. 231, 235, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980)..  FN81. Jenkins v. Anderson, 447 U.S. 231, 235, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

FN82. Id., 447 U.S. at 238, 100 S.Ct. 2124..  FN82. Id., 447 U.S. at 238, 100 S.Ct. 2124.

FN83. State v. Post, 118 Wash.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992)..  FN83. State v. Post, 118 Wash.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992).

FN84.  See State v. Swan, 114 Wash.2d 613, 645, 790 P.2d 610 (1990) (The appellate court reviews a trial court's competency determination for abuse of discretion)..  FN84.  See State v. Swan, 114 Wash.2d 613, 645, 790 P.2d 610 (1990) (The appellate court reviews a trial court's competency determination for abuse of discretion).

FN85. 13RP 2346-48..  FN85. 13RP 2346-48.

FN86. 13 RP 2348..  FN86. 13 RP 2348.

FN87.  RP 190..  FN87.  RP 190.

FN88. State v. Stenson, 132 Wash.2d 668, 727, 940 P.2d 1239 (1997)..  FN88. State v. Stenson, 132 Wash.2d 668, 727, 940 P.2d 1239 (1997).

FN89.  See id., 132 Wash.2d at 718-19, 940 P.2d 1239 (“If the defendant proves the conduct was improper, the prosecutorial misconduct still does not constitute prejudicial error unless the appellate court determines there is a substantial likelihood the misconduct affected the jury's verdict.”)..  FN89.  See id., 132 Wash.2d at 718-19, 940 P.2d 1239 (“If the defendant proves the conduct was improper, the prosecutorial misconduct still does not constitute prejudicial error unless the appellate court determines there is a substantial likelihood the misconduct affected the jury's verdict.”).

FN90. Id., 132 Wash.2d at 719, 940 P.2d 1239..  FN90. Id., 132 Wash.2d at 719, 940 P.2d 1239.

FN91. 11RP 1936..  FN91. 11RP 1936.

FN92.  Freeburg also claims that the prosecutor said defense counsel was ineffective.   His argument is unclear and the place in the record where the prosecutor said this (and the person to whom he said it) cannot be located..  FN92.  Freeburg also claims that the prosecutor said defense counsel was ineffective.   His argument is unclear and the place in the record where the prosecutor said this (and the person to whom he said it) cannot be located.

FN93. 102 Wash.2d 120, 683 P.2d 199 (1984)..  FN93. 102 Wash.2d 120, 683 P.2d 199 (1984).

FN94. Id., 102 Wash.2d at 125, 683 P.2d 199..  FN94. Id., 102 Wash.2d at 125, 683 P.2d 199.

FN95. 145 Wash.2d 116, 123-24, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996, 122 S.Ct. 1559, 152 L.Ed.2d 482 (2002)..  FN95. 145 Wash.2d 116, 123-24, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996, 122 S.Ct. 1559, 152 L.Ed.2d 482 (2002).

FN96. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that a state statute pursuant to which, following a jury adjudication of a defendant's guilt of first degree murder, the trial judge, sitting alone, determines the presence or absence of aggravating factors required for the imposition of the death penalty, violates the Sixth Amendment right to a jury trial)..  FN96. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that a state statute pursuant to which, following a jury adjudication of a defendant's guilt of first degree murder, the trial judge, sitting alone, determines the presence or absence of aggravating factors required for the imposition of the death penalty, violates the Sixth Amendment right to a jury trial).

FN97. 150 Wash.2d 135, 75 P.3d 934 (2003)..  FN97. 150 Wash.2d 135, 75 P.3d 934 (2003).

SCHINDLER, J.