STATE of Washington, Respondent, v. Kurtis William MONSCHKE, Appellant.
PART PUBLISHED OPINION
¶ 1 Kurtis Monschke appeals his conviction for aggravated first degree murder. The evidence presented at trial established that Monschke murdered a homeless man to advance his status as a white supremacist. Monschke raises numerous issues in this appeal, including challenges to the constitutionality of RCW 10.95.020(6), the sufficiency of the evidence, the court's refusal to bifurcate the trial, and the court's order requiring him to wear a stun belt at trial. We affirm.1
¶ 2 Early on the morning of March 23, 2003, Terry Hawkins and Cindy Pitman observed a group of “[s]kinheads” kicking and using baseball bats to hit what appeared to be the Tacoma railroad track. 22 Report of Proceedings (RP) at 1078. The individuals were hollering and appeared drunk. Hawkins and Pitman were homeless and lived in a camp under Interstate 705 near the train tracks and the Tacoma Dome. Hawkins told police that he saw three men and a woman kicking dirt and hitting at the ground; at trial, he testified that he saw two men swinging bats, a woman kicking, and a third man standing four feet away. Pitman told police and later testified that she saw three men with shaved heads swinging and kicking but did not see a woman.
¶ 3 Hawkins and Pitman watched for approximately 10 minutes before turning around and walking away. They headed up a trail but when the commotion stopped, they decided to go back toward the train tracks and their camp. On their way to the camp site, Hawkins and Pitman passed the people involved in the commotion: a man and woman snuggled together with two men following behind. The four headed up the trail and appeared “scared,” like “[t]hey were trying to get away from there.” 23 RP at 1218.
¶ 4 As Hawkins and Pitman approached the tracks where the commotion had been, they heard a strange gurgling sound. They discovered the badly beaten and bloody body of Randy Townsend, lying on his back with his head slumped over the train track. Hawkins and Pitman knew Townsend as a white acquaintance who camped nearby, but Townsend was so disfigured that neither Hawkins nor Pitman immediately recognized him. Hawkins and Pitman ran to get aid and call the police. As they returned to Townsend, Hawkins and Pitman saw the four individuals involved in Townsend's assault driving away in a “blue Datsan [sic] beater.” 27 RP at 1769.
¶ 5 Townsend never regained consciousness and died after 20 days on life support. The medical examiner determined the cause of death as blunt force trauma to the head, with at least 19 points of impact. Townsend's facial bones were broken and his face had separated from his skull. One of the blows caused a large subdural hematoma on the back side of his skull. This wound was consistent with his head having been forcefully stomped on while he was lying face down on the train track.
¶ 6 During the investigation that followed, officers found hate-based graffiti near the murder scene. The graffiti included swastikas, lightning bolts in the shape of “SS,” “White Power Skinheads,” “U Suck Wiggers,” “El Spic,” “Skinhead white to the bone,” “Die SHARPS,” “Die Junky Die,” “El Nigger,” “Tacoma Skinhead Movement,” “die niggers,” “Heil Hitler,” and “Fuck All Drug Addicts.” 2 21 RP at 940; 26 RP at 112, 116, 118-19, 121-22. Homeless people in the area told police that the graffiti began appearing a couple weeks before Townsend's murder.
¶ 7 Officers also talked to Mertis Mathes and Amy Gingrich, a homeless couple living in a camp two blocks from the murder scene. Mathes is black and Gingrich is white. Mathes and Gingrich told officers they woke early on the night of the murder when three loud men approached their camp. Gingrich recognized one of the men from a casual encounter a couple weeks earlier. The men had shaved heads, appeared drunk, and were carrying baseball bats. Mathes asked what the men wanted. One responded, “we plan on doing a nigger like you.” 21 RP at 956. When Mathes grabbed his machete, the three men walked away.
¶ 8 Officers linked the crime scene graffiti to a reported incident of graffiti at an apartment building two blocks from the murder scene. Scotty Butters, Tristain Frye, and David Pillatos had been evicted from the Rich Haven Apartments for yelling racial slurs at passersby, painting swastikas and “Fuck all niggers” on the building, and for Butters's sale of imitation cocaine to a drug addict. 26 RP at 147. Butters, Frye, and Pillatos matched Hawkins and Pitman's descriptions of Townsend's assailants.
¶ 9 Frye and Pillatos lived with Monschke. Frye and Pillatos were in a relationship and Frye was three months' pregnant. A car matching the one Hawkins and Pitman described was parked outside Monschke's apartment. Officers went to the apartment to discuss an unrelated incident with Pillatos, and he invited them inside. In Monschke's apartment, officers saw Nazi and white supremacist paraphernalia. They also noticed cigarette packages and empty beer bottles of the same brand found at the crime scene. Pillatos freely told the officers that he and Monschke were white supremacists.
¶ 10 The State charged Monschke, Butters, Frye, and Pillatos with premeditated first degree murder under RCW 9A.32.030 and alleged that the murder was aggravated under RCW 10.95.020(6) because Townsend was murdered so that the defendants could obtain or maintain their membership or advance their position in the hierarchy of an organization or identifiable group, namely, “white supremacists.” 1 Clerk's Papers (CP) at 84. Under a plea bargain, Butters and Pillatos pleaded guilty to first degree murder, and Frye pleaded guilty to second degree murder. Each agreed to testify at Monschke's trial.
¶ 11 Prior to the plea agreements, the defendants appeared at a pretrial hearing where they were separated for security purposes. Each wore leg shackles and a belly chain with arm restraints. At some point, Butters and Pillatos began spitting and cursing at each other. As they were being subdued, Monschke stood up and started yelling at Pillatos and calling him a “fucking spic.” 5 CP at 431; see note 1, supra. Monschke then grabbed a chair and attempted to throw it at Pillatos. Monschke was subdued and taken from the courtroom spitting and resisting.
¶ 12 After the altercation and after the plea agreements, the trial court held a hearing on a State motion to have Monschke wear a stun belt. At the hearing, the court heard testimony from Sergeant Sabrina Braswell of the Pierce County Department of Corrections. Sergeant Braswell testified that Monschke had been wearing a stun belt on his waist to every court proceeding since the altercation. She also testified that without the belt, Monschke was highly disruptive in the jail. Monschke had possessed makeshift weapons on several occasions and he routinely antagonized other inmates by, among other things, throwing feces at them. Sergeant Braswell testified that without restraints, she would have to instruct her officers to essentially “sit[ ]on top” of Monschke to ensure courtroom safety. 14 RP at 594.
¶ 13 Based on this testimony and its own observations of Monschke's courtroom conduct, the court ordered that Monschke be required to wear a stun belt during trial. The court concluded that the stun belt was necessary because the trial would become intense and Monschke had shown a pattern of misbehavior when not controlled. The court left it to the jail staff to determine whether to use a waist or ankle belt. Sergeant Braswell had testified that inmates often preferred the waist belt over the ankle belt. The court stated that it had not noticed Monschke wearing the waist belt but instructed defense counsel to raise any visibility issues if they arose.
¶ 14 Monschke moved to bifurcate his trial into a first degree murder phase and an aggravating circumstance phase, arguing that bifurcation was necessary to keep the jury from considering his white supremacist beliefs when deliberating on the first degree murder elements. The court denied the motion, concluding that evidence of Monschke's white supremacist affiliations was admissible in the trial on the merits of the first degree murder charge to prove motive and intent.
¶ 15 Frye testified at trial that on the evening of March 22, 2003, Pillatos brought up the subject of taking Frye out to earn her “red [shoe]laces.” 30 RP at 2330. According to Frye, red shoelaces symbolized that the wearer had assaulted a member of a minority group; Butters, Monschke, and Pillatos each wore red shoelaces. Pillatos encouraged Butters and Monschke to take Frye out; the three men had discussed the idea two or three times before. After the discussion, the four drove to a grocery store to buy beer. The three men also purchased two baseball bats. They did not discuss the reason for the bats, but, according to Frye, it was understood that “they weren't going to be used for baseball.” 31 RP at 2485.
¶ 16 The four then drove to the Tacoma Dome. Butters expressed a desire to go to a different part of the city to “beat up some niggers,” but Frye and Pillatos wanted to show Monschke graffiti they had recently painted nearby. 30 RP at 2333. As they walked underneath Interstate 705, Frye separated from the group. She sat down and Townsend approached her. Townsend asked for a cigarette and a beer and the two talked for awhile.
¶ 17 Townsend finished his cigarette and had begun to walk away when Butters and Pillatos confronted him. Butters said something to Townsend and then struck him in the head with the bat. The blow shattered the bat and sent Townsend to the ground. Butters and Pillatos then began kicking Townsend in the head. Pillatos picked up a large rock, later determined to weigh 38 pounds, and threw it on Townsend's face. Butters and Pillatos carried Townsend to the train tracks and placed him on his stomach with his head lying face down on the track. Butters then stomped on the back of Townsend's head. Although Townsend was still breathing, Butters exclaimed, “I killed that guy.” 30 RP at 2346. Butters and Pillatos went to find Monschke.
¶ 18 Monschke was carrying the second bat when the three men returned to where Townsend lay. Monschke walked up to Townsend and began hitting him in the head with the bat. Monschke struck 10 to 15 blows while Butters continued to kick Townsend's head. Butters repeatedly called Townsend “a piece of shit.” 30 RP at 2349. Pillatos told Frye to kick Townsend. According to Frye, she initially refused, but Pillatos covered her eyes and led her to Townsend. Frye then kicked Townsend's head four times. As the group left, Monschke stated, “I wonder if God gives us little brownie points for this.” 31 RP at 2369.
¶ 19 When the four returned to Monschke's apartment, Monschke and Pillatos gathered up the clothing worn during the attack and left to burn it. Later, Butters told Frye, “Don't feel sorry for that piece of shit. He wasn't white.” 31 RP at 2374. Butters excitedly told Frye that she had earned her red laces and he had earned his “bolts.” 31 RP at 2375. At trial, the State presented evidence that between the time of his arrest and his testimony at trial, Butters had obtained an “SS” lightning bolt tattoo. See note 1, supra.
¶ 20 Butters, Pillatos, and Monschke also testified; their testimony differed from each other's and from Frye's in certain respects. Pillatos testified that Monschke hit Townsend in the head with the bat three or four times. Monschke and Butters testified that Monschke was somewhere else during the entire assault and that he used the bat afterwards simply to nudge Townsend to see if he was still alive. Butters also testified that he told officers that Monschke hit Townsend 10 or more times.
¶ 21 Although all three men denied that Townsend's death was premeditated or that it had anything to do with earning red shoelaces, Butters and Pillatos offered contradictory testimony. Like Frye, Butters testified that on the night of the murder, there was a discussion about Frye earning her red shoelaces. According to Butters, red shoelaces reflected that one was willing to shed blood, not necessarily that one had done so; Butters had earned his red shoelaces on more than one occasion by doing something physical. Butters testified that after the attack, Frye said, “This means my baby gets to wear red laces, too.” 30 RP at 2293. In addition, Pillatos testified that Townsend “got beat up” because he was a drug addict and a “parasite.” 29 RP at 2106.
¶ 22 Jennifer Stiffler, who dated Monschke from September 2002 to March 2003, testified that Monschke was a very active white supremacist: He was a member of Volksfront and often talked about moving up in the group and starting a Tacoma chapter; he took Stiffler to a meeting for National Alliance; he decorated his home with white supremacist and Nazi memorabilia, including a flag for National Alliance; he listened to racist music; he frequently passed out fliers from several groups; and he obtained Nazi and white supremacist tattoos. According to Stiffler, Monschke and Pillatos repeatedly watched the movie American History X (New Line Productions 1998), which includes a “curb stomp” scene that Monschke particularly enjoyed. In that scene, the main character, a white supremacist, shoots a black man and then stomps on the back of his head while the man is forced to bite a street curb.
¶ 23 Stiffler further testified that Monschke would wear white or red suspenders and red shoelaces whenever he went out with friends. Monschke told Stiffler that white suspenders symbolized “white pride” and that red shoelaces and suspenders “means you've beaten up somebody.” 32 RP at 2602. Stiffler testified that she overheard Monschke several times talking to Frye about earning her red shoelaces. Stiffler also testified that Monschke had told her that he hated drug addicts.
¶ 24 The State presented evidence of white supremacist paraphernalia police found during their investigation. The items found in Monschke's apartment included: a National Alliance flier; pamphlets entitled “Martin Luther King Jr. was a fraud,” “What is Holocaust Denial,” and “Inside the Auschwitz Gas Chambers”; 3 and a business card listing a website and reading “Sick of wiggers? So are we. Check us out.” 4 The items found in a storage unit Pillatos rented included: applications filled out by Pillatos and Frye to join the Aryan Nations; photos showing that Monschke had tattoos identical to the main character in American History X; and a photo of Monschke giving a Nazi salute.
¶ 25 The State also presented evidence of white supremacist paraphernalia found in Brian Zauber's home. At the time of his arrest, Monschke was living with Zauber,5 the local leader for National Alliance. Officers saw a hanging flag matching one that had been seen in Monschke's apartment. They also found the following items: The Turners Diaries,6 a book commonly referred to as “the bible for the white supremacist movement”; 7 a National Alliance membership card and an order form for National Alliance books and pamphlets; a “White Aryan Resistance” newspaper; 8 and an envelope with the names “Randall Townsend” and “Kurtis Monschke” written on it.9 Officers found the following in a bag belonging to Monschke: a National Alliance handbook and membership list; a photo album of white supremacist activities; and a flag with “SS” shaped lightning bolts. See note 1, supra.
¶ 26 The State and Monschke each presented expert testimony on the subject of white supremacy. The State called Mark Pitcavage, the director of fact-finding for the Anti-Defamation League (ADL). Pitcavage had studied white supremacy for several years and supervised the ADL's monitoring and research of extremist groups. Pitcavage testified that white supremacists could be identified by a shared ideology summed up in the following mission statement known as “The 14 Words”: “We must secure the existence of our race and a future for white children.” 25 RP at 1598. Pitcavage opined that this ideology fostered so many shared similarities, beliefs, and customs that white supremacists could be considered a “group” within the common meaning of the term.
¶ 27 Pitcavage considered white supremacists to be a “group” even though they were not well organized, did not have one overarching structure, had many subgroups, and were split over the advocacy and use of violence. Pitcavage explained that the subgroups were nonexclusive; routinely overlapping; and often loosely organized to prevent police infiltration, to limit legal liability, and to maintain a certain level of personal anonymity. Pitcavage testified to an organized “hierarchal structure” “in terms of status, where someone who's perceived to be really standing up for the white race, really being a white warrior, gets more results of status, gets more respect.” 25 RP at 1635. In addition, Pitcavage testified that many subgroups internally advocated violence but publicly professed nonviolence so as to avoid lawsuits of the sort that had disbanded earlier white supremacy groups.
¶ 28 Monschke called Randy Blazak, a college professor whose research focused on hate crimes. Blazak opined that white supremacists were not an “identifiable group.” Blazak agreed with Pitcavage that white supremacists shared an ideology captured by “The 14 Words,” but he testified that in his opinion there was too much conflict within the movement to consider white supremacists a cohesive group. These conflicts included disagreement over the need of an organized hierarchy, the use of violence, the role of religion, and defining who was “white.”
¶ 29 Blazak also testified about Volksfront and National Alliance. According to Blazak, National Alliance was a highly violent subgroup of white supremacists. Blazak testified that a member could gain status in National Alliance for murdering someone deemed inferior. Blazak described Volksfront as a very secretive organization with a “public front” of nonviolence, but he noted that “there may be other things that go on behind closed doors.” 34 RP at 2911. Blazak also testified that Volksfront had an organizational hierarchy. According to Blazak, Volksfront and National Alliance had over the last several years been partnering and connecting.
¶ 30 The State presented evidence that Volksfront maintained a prisoners-of-war (POW) list on its website. The list included the contact information for members of the white supremacy movement that had committed hate crimes and were currently incarcerated. Several individuals on the list had committed “very violent” crimes. 33 RP at 2696. The State also presented evidence that Monschke left messages on Volksfront's website and that he went by the screen name “SHARPshooter.” 33 RP at 2686. See note 1, supra.
¶ 31 A jury found Monschke guilty as charged and the court sentenced him to serve a mandatory life sentence without possibility of early release under RCW 10.95.030(1). This appeal followed.
Aggravating Circumstance and RCW 10.95.020(6)
¶ 32 The jury found that Monschke's first degree murder conviction was aggravated because the murder was committed “to obtain or maintain his membership or to advance his position in the hierarchy of an organization, association, or identifiable group.” 3 CP at 387. This aggravating circumstance is set forth at RCW 10.95.020(6). Monschke challenges the aggravating circumstance and maintains that (1) white supremacy is not an “identifiable group” with a “hierarchy”; (2) RCW 10.95.020(6) is overbroad in that it punishes people merely for having “unpopular opinions about the superiority of the white race”; 10 and (3) the term “group” is unconstitutionally vague as applied to him. We disagree with each of these contentions.
Does White Supremacy Fall Within the Meaning of RCW 10.95.020(6)?
¶ 33 Interpretation of a statute is a question of law reviewed de novo. State v. Thompson, 151 Wash.2d 793, 801, 92 P.3d 228 (2004). The fundamental objective of statutory interpretation is to ascertain and give effect to the legislature's intent. Thompson, 151 Wash.2d at 801, 92 P.3d 228. We give effect to plain and unambiguous statutory language as a clear expression of legislative intent. Thompson, 151 Wash.2d at 801, 92 P.3d 228. If an unambiguous term is not statutorily defined, we define it by its dictionary meaning. State v. Fjermestad, 114 Wash.2d 828, 835, 791 P.2d 897 (1990).
¶ 34 The legislature did not define “group,” “identifiable,” or “hierarchy,” but these terms are commonly understood and are not ambiguous. A “group” is “a number of individuals bound together by a community of interest, purpose, or function,” or a “number of persons associated formally or informally for a common end or drawn together through an affinity of views or interests.” Websters Third New Int'l Dictionary 1004 (3d ed.1976); see also id. at 1123 (defining “ideology” as “a manner or the content of thinking characteristic of an individual, group, or culture”). A group is “identifiable” if it is “subject to identification” or “capable of being identified.” Websters Third New Int'l Dictionary 1004 (3d ed.1976). A “hierarchy” is “the classification of a group of people with regard to ability or economic or social standing.” Websters Third New Int'l Dictionary 1066 (3d ed.1976).
¶ 35 When considered together, these definitions express the legislature's determination that a person's legal culpability for murder is greater if the murder is committed to advance the murderer's standing amongst a number of persons subject to identification and bound together, whether formally or informally, by a shared ideology or affinity of views. The range of groups falling within RCW 10.95.020(6) is nearly infinite and can include such entities as a cheerleading squad, a law firm, the Republican or Democratic Party, or the Catholic church. RCW 10.95.020(6) does not limit the structure or size of such a group or the nature of its ideology because such qualifiers are not necessary.
¶ 36 Under the plain language of RCW 10.95.020(6), white supremacy is an “identifiable group” with a “hierarchy.” As Pitcavage explained, white supremacists share a set of beliefs and customs and are bound together by a mission to “secure the existence of our race and a future for white children.” 25 RP at 1598. Both Pitcavage and Blazak agreed that this mission embodies the white supremacist ideology. Also, according to Pitcavage, white supremacists have a “hierarchy.” The hierarchy is not in the formal militaristic or corporate sense, but in a “social standing” sense: “[S]omeone who's perceived to be really standing up for the white race, really being a white warrior, gets more result of status, gets more respect.” 25 RP at 1635.
¶ 37 Blazak's testimony also supports the conclusion that white supremacy falls within RCW 10.95.020(6). The thrust of Blazak's testimony was that white supremacy was not an “identifiable group” because, if it was, it would be “[a] very broad-based group,” similar to “people who are liberal, people who are conservative, environmentalists, pro death penalty people.” 34 RP at 2957-58. But the breadth of the group base is immaterial provided that the group is identifiable, has a hierarchy, and shares an ideology. As Blazak testified, white supremacists are a “finite number of people” who can be “identified” by their common ideology that “white people are superior and the white race is somehow threatened.” 34 RP at 2923-24. Thus, both Pitcavage and Blazak's testimony reflected that white supremacy falls within the plain language of RCW 10.95.020(6).
¶ 38 A statute is overbroad if it chills or sweeps within its prohibition constitutionally protected free speech activities. City of Bellevue v. Lorang, 140 Wash.2d 19, 26, 992 P.2d 496 (2000). The First Amendment protects an individual's right to hold and express unpopular views and to associate with others who share that viewpoint. Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).
¶ 39 In Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), the Court rejected an overbreadth challenge to a statute enhancing a defendant's sentence if the crime was motivated by a discriminatory point of view. The defendant argued that the statute had a “chilling effect” on free speech because evidence of the defendant's prior speech or associations could be used to prove that the defendant intentionally selected his victim on account of the victim's protected status. The Court found no merit in this contention:
The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional “over-breadth” cases. We must conjure up a vision of a ․ citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to ․ qualify[ ] him for penalty enhancement. This is simply too speculative a hypothesis to support [an] overbreadth claim.
Mitchell, 508 U.S. at 488-89, 113 S.Ct. 2194.
¶ 40 RCW 10.95.020(6) is far less “intrusive” than the statute upheld in Mitchell. It is content neutral and does not intrude on constitutionally protected rights. RCW 10.95.020(6) merely requires an enhanced punishment for committing murder if the murder was committed to obtain, maintain, or advance one's position in the hierarchy of an organization, association, or identifiable group. That a political or other viewpoint was expressed through the particular murder or that the murder furthered the exercise of the murderer's association rights does not alter or shield the criminal act: “The First Amendment does not protect violence.” Nat'l Ass'n for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). “[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ․ are entitled to no constitutional protection.” Roberts v. U.S Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Accordingly, we reject Monschke's claim that RCW 10.95.020(6) is unconstitutionally overbroad in that it limits his First Amendment rights.
¶ 41 Monschke contends that the term “group” is too vague to satisfy due process notice requirements.11 A statute is vague if it does not give fair notice of the proscribed conduct or clear standards to prevent arbitrary enforcement. State v. Halstien, 122 Wash.2d 109, 117, 857 P.2d 270 (1993). But a statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his questionable actions are prohibited. City of Seattle v. Eze, 111 Wash.2d 22, 27, 759 P.2d 366 (1988). It is sufficiently definite if persons of ordinary intelligence can understand the statute's meaning, notwithstanding some possible areas of disagreement. Eze, 111 Wash.2d at 27, 759 P.2d 366. A statute “employ[ing] words with a well-settled common law meaning, generally will be sustained against a charge of vagueness.” Anderson v. City of Issaquah, 70 Wash.App. 64, 75, 851 P.2d 744 (1993). We assess a vagueness challenge to a statute not implicating First Amendment rights in light of the statute's application to the case at hand. Halstien, 122 Wash.2d at 117, 857 P.2d 270.
¶ 42 As previously discussed, the term “group” is not ambiguous and its plain dictionary meaning includes white supremacy. A person of ordinary intelligence would understand that committing murder to advance one's position as a white supremacist is prohibited by RCW 9A.32.030 and RCW 10.95.020(6). Monschke's vagueness challenge fails accordingly.
Sufficiency of the Evidence
¶ 43 Monschke next maintains that the evidence was insufficient to find that he murdered Townsend to advance his hierarchal position as a white supremacist. We disagree.
¶ 44 Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Thomas, 150 Wash.2d 821, 874, 83 P.3d 970 (2004). A claim of insufficient evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. Thomas, 150 Wash.2d at 874, 83 P.3d 970. We defer to the trier of fact on decisions resolving conflicting testimony and the credibility of witnesses. Thomas, 150 Wash.2d at 874-75, 83 P.3d 970.
¶ 45 The record before us establishes the following: Monschke was a member of the white supremacist subgroup Volksfront; Volksfront associated with the violent subgroup National Alliance; Monschke wanted to advance his position in Volksfront and open a local chapter; acts of violence elevated a member's status in many white supremacist subgroups; Volksfront maintained a POW list on its website that supported individuals who had committed violent hate crimes; Monschke posted messages on Volksfront's website and used a screen name, “SHARPshooter,” that advocated violence against a nonviolent white supremacist group; Monschke sought to elevate Frye's status by helping her obtain red shoelaces, which Monschke believed were earned by violent acts against “inferior” people; Monschke previously advanced his own position in Volksfront through violent acts and wore red shoelaces and white suspenders as an indication of this advancement; Monschke, Butters, and Pillatos were underneath Interstate 705 looking to “do” someone “inferior”; Townsend was viewed as inferior by Monschke, Butters, and Pillatos; Townsend's murder elevated Butters's status; and Monschke wondered aloud whether Townsend's murder would elevate his status with God. Accepting this evidence as true, and taking all reasonable inferences in the light most favorable to the State, a rational trier of fact could find that Monschke murdered Townsend to advance his position as a white supremacist.
¶ 46 Monschke maintains that the trial court should have bifurcated his trial to separate the jury's consideration of the evidence of first degree murder from that supporting the aggravating circumstances. We disagree.
¶ 47 Monschke cites to no direct authority supporting bifurcation of an aggravated first degree murder trial under current law. A bifurcated procedure was required when the State alleged aggravating circumstances with a first degree murder charge under former RCW 9A.32.040-.045 and 10.94.020 (1977). But that statutory procedure has long since been repealed and replaced. Currently, bifurcation is required in an aggravated first degree murder prosecution only if the State files a notice of intent to seek the death penalty and the jury finds the defendant guilty of aggravated first degree murder. RCW 10.95.040-.050. Bifurcation then occurs between the trial on the entire first degree murder charge, including the aggravating circumstance, and the penalty phase in which the jury addresses whether there are sufficient mitigating circumstances to merit leniency. RCW 10.95.040(1)-.080. The current statutes do not provide for bifurcated trials on first degree murder and the alleged aggravating circumstance.
¶ 48 We acknowledge, however, that the trial court has broad discretion to control the order and manner of trial proceedings. ER 611; State v. Johnson, 77 Wash.2d 423, 426, 462 P.2d 933 (1969). Although bifurcated trials “are not favored,” they may sometimes be necessary. State v. Kelley, 64 Wash.App. 755, 762, 828 P.2d 1106 (1992). For example, bifurcation is appropriate where the defendant argues insanity and a second inconsistent defense. See State v. Jeppesen, 55 Wash.App. 231, 236-38, 776 P.2d 1372, review denied, 113 Wash.2d 1024, 782 P.2d 1070 (1989). Bifurcation is inappropriate if a unitary trial would not significantly prejudice the defendant or if there is a substantial overlap between evidence relevant to the proposed separate proceedings. Jeppesen, 55 Wash.App. at 237, 776 P.2d 1372; State v. Jones, 32 Wash.App. 359, 369, 647 P.2d 1039 (1982), rev'd on other grounds, 99 Wash.2d 735, 664 P.2d 1216 (1983). We review a bifurcation decision for abuse of discretion. Jeppesen, 55 Wash.App. at 236, 776 P.2d 1372. A court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).
¶ 49 Monschke argues that bifurcation of his trial was necessary to keep the jury from considering his white supremacist beliefs when it deliberated on the elements of premeditated first degree murder. But as discussed more thoroughly in the unpublished portion of this opinion, evidence of Monschke's white supremacist beliefs was relevant to show that he had a motive for Townsend's murder and that he premeditated and intended to cause an “inferior” person's death. See Stenson, 132 Wash.2d at 702, 940 P.2d 1239 (“Evidence of a defendant's motive is relevant in a homicide prosecution.”); State v. Campbell, 78 Wash.App. 813, 821-22, 901 P.2d 1050 (group membership is relevant evidence of premeditation and motive when there is a sufficient nexus between the group affiliation and the motive for committing the crime), review denied, 128 Wash.2d 1004, 907 P.2d 296 (1995). Here, the trial court's denial of the motion rests on tenable ground and the court did not abuse its discretion in refusing to bifurcate Monschke's trial.
¶ 50 Monschke asserts that the court erred in requiring that he wear a stun belt underneath his clothes at trial. We disagree.
¶ 51 Absent extraordinary circumstances, a defendant is entitled to appear at trial free from all restraints. In re Pers. Restraint of Davis, 152 Wash.2d 647, 693, 101 P.3d 1 (2004). But a trial court has inherent authority to determine what security measures are necessary to maintain decorum in the courtroom and to protect the safety of courtroom occupants. State v. Damon, 144 Wash.2d 686, 691, 25 P.3d 418, 33 P.3d 735 (2001). Restraints may be used if they are necessary to prevent escape, injury, or disorder in the courtroom. Damon, 144 Wash.2d at 691, 25 P.3d 418, 33 P.3d 735. In deciding whether to restrain a defendant during trial, a court should consider, among other things, (1) the seriousness of the present charge; (2) the defendant's temperament and character; (3) the defendant's history of disruptive behavior; and (4) the adequacy and availability of less restrictive alternatives to restraint. Damon, 144 Wash.2d at 691, 25 P.3d 418, 33 P.3d 735 (setting forth 12 specific factors).
¶ 52 To overturn a jury's verdict, a defendant challenging the use of restraints must make a threshold showing that the restraints had a “substantial or injurious effect or influence on the jury's verdict.” Davis, 152 Wash.2d at 694, 101 P.3d 1 (quoting State v. Hutchinson, 135 Wash.2d 863, 888, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157, 119 S.Ct. 1065, 143 L.Ed.2d 69 (1999)). This requires evidence that the jury saw the restraints or that the restraints substantially impaired the defendant's ability to assist in his trial defense. See State v. Finch, 137 Wash.2d 792, 845, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999); Hutchinson, 135 Wash.2d at 888, 959 P.2d 1061; State v. Jennings, 111 Wash.App. 54, 61, 44 P.3d 1 (2002) (stun belt), review denied, 148 Wash.2d 1001, 60 P.3d 1212 (2003).
¶ 53 Here, after ruling that Monschke be required to wear a stun belt under his clothes during trial, the court instructed defense counsel to bring any visibility concerns to the court's attention. No such complaints were made. Before its ruling, the court had not noticed that Monschke was being forced to wear the belt by jail personnel. Monschke offers only conclusory statements that the belt hampered his participation in his trial defense. But Monschke did not express any such concerns to the trial court. Monschke's failure to establish prejudice from the court's decision that he wear a stun belt defeats this assignment of error.
¶ 54 Nonetheless, we briefly address the propriety of the trial court's ruling. Here, the trial judge witnessed a violent and serious incident in her courtroom. Monschke was spitting and yelling at his then co-defendants, Butters and Pillatos. Monschke escalated the level of violence by throwing a chair, using racial slurs, and resisting the guard's attempts to defuse the situation and subdue him. Monschke represents to this court that the incident reflected “irrational behavior” raising serious competency concerns. Statement of Additional Grounds at 5. The incident was all the more alarming as it occurred before Monschke's co-defendants pleaded guilty and agreed to testify at his trial.
¶ 55 The trial court held a hearing and examined witnesses on the issue. It heard testimony that Monschke represented a continuing threat when not restrained. Monschke had been caught in the county jail possessing makeshift weapons and repeatedly attempting to instigate fights with other prisoners. The evidence before the trial court established that a stun waist belt was the least restrictive alternative: it was not plainly visible or as inhibiting as chains or shackles; it did not carry with it the obvious prejudice of being closely surrounded by several armed officers; and prisoners often found it more comfortable than the stun ankle belt. In our view, the court's order requiring Monschke to wear a stun belt was well considered and proper.
¶ 56 Affirmed.
¶ 57 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.
White Supremacist Evidence
¶ 57 The trial court admitted evidence of Monschke's white supremacist views but gave the jury the following instruction limiting the jury's consideration of the evidence: “Evidence regarding white supremacist literature and materials ․ is being admitted for the purpose of proving motive, premeditation and for the circumstances surrounding the alleged crime. You must not consider the evidence for any other purpose.” 27 RP at 1787. The court gave this limiting instruction several times. Monschke now raises the following claims: admitting the evidence violated his First Amendment rights; the evidence was inadmissible under ER 404(b); the court's limiting instruction was an impermissible comment on the evidence; and the evidence was unduly cumulative. We disagree with each of these contentions.
Admission and Evidentiary Use of Constitutionally Protected Activities
¶ 58 Monschke asserts that “[i]t is error to permit the state to ask the jury to draw negative inferences from the exercise of any constitutional right.” Br. of Appellant at 48. We note, as the Washington Supreme Court has, that “there is a distinction between making speech the crime itself, or an element of the crime, and using speech to prove the crime.” Halstien, 122 Wash.2d at 125, 857 P.2d 270 (quoting State v. Plowman, 314 Or. 157, 167, 838 P.2d 558 (Or.1992), cert. denied, 508 U.S. 974, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993)). “The First Amendment ․ does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.” Halstien, 122 Wash.2d at 125, 857 P.2d 270 (alteration in original) (quoting Mitchell, 508 U.S. at 489, 113 S.Ct. 2194). Evidence of a defendant's exercise of a First Amendment right may be admissible when relevant to an issue in the case. Campbell, 78 Wash.App. at 822, 901 P.2d 1050; see, e.g., United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (prosecution could establish a defense witness's bias by showing that both the defendant and the witness were members of the Aryan Brotherhood and that members were sworn to lie for each other); Barclay v. Florida, 463 U.S. 939, 949, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (plurality) (trier of fact could consider “the elements of racial hatred” in the crime as well as the defendant's “desire to start a race war” in assessing whether the crime was “especially heinous, atrocious, or cruel”).
¶ 59 No authority supports Monschke's claim that admitting evidence of his affiliations and beliefs was reversible error and an automatic violation of his constitutional rights. Contra Dawson v. Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992) (“[T]he Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.”). The question of trial court error in allowing such evidence depends on whether this evidence was relevant and admissible to prove an element of the aggravated first degree murder charge. The relevancy threshold is “very low.” State v. Darden, 145 Wash.2d 612, 621, 41 P.3d 1189 (2002). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 401. We review the decision to admit evidence for abuse of discretion. State v. Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002).
¶ 60 Monschke argues that the trial court erred in concluding that white supremacist evidence was admissible under ER 404(b). That rule prohibits evidence of prior acts to prove the defendant's propensity to commit the charged crime. But evidence of a defendant's prior acts may be admitted for other limited purposes under ER 404(b), including to establish motive, intent, and to explain the circumstances surrounding the alleged crime. State v. Brown, 132 Wash.2d 529, 570-71, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998); State v. Cook, 131 Wash.App. 845, 849-50, 129 P.3d 834 (2006). Evidence of membership in a group may be relevant evidence of premeditation and a defendant's motive when there is a sufficient nexus between the group affiliation and the motive for committing the crime. State v. Boot, 89 Wash.App. 780, 789, 950 P.2d 964, review denied, 135 Wash.2d 1015, 960 P.2d 939 (1998); Campbell, 78 Wash.App. at 822, 901 P.2d 1050. Such evidence is also admissible under RCW 10.95.020(6) to establish that the defendant committed murder to advance his position in the hierarchy of an organization, association, or identifiable group.
¶ 61 Monschke's entire ER 404(b) argument is as follows:
[T]he only connection between the “white supremacist” evidence introduced at trial, [Monschke] and premeditation or motive was the inference that a person who believes in the supremacy of the white race is the kind of person who would commit a murder․ This is the precise inference forbidden by ER 404(b).
Br. of Appellant at 58-59. But Monschke incorrectly summarizes the evidence presented at trial. According to the record, the evidence admitted at trial not only established Monschke's belief in the superiority of the “white race,” but also Monschke's hatred and hostility toward anyone he deemed inferior. This evidence included: literature, paraphernalia, and pictures associated with the Nazi movement and the highly violent subgroup, National Alliance; literature denigrating minorities; and a movie Monschke particularly enjoyed because of a scene where a minority is shot and curb stomped. Monschke's hate-based beliefs and his affiliation with groups advocating violence did tend to explain Monschke's motive for attacking a white homeless stranger who was a possible drug user. The evidence established and explained the plan for Frye and Butters to earn red shoelaces and bolts, and for Monschke to advance his status as a white supremacist. The evidence made it more probable that Townsend's murder was premeditated. See Stenson, 132 Wash.2d at 702, 940 P.2d 1239. In addition, the evidence explained the circumstances surrounding the crime, including the apparent “curb stomping” of Townsend's head as he lay on the railroad track. The court did not abuse its discretion in admitting evidence that Monschke was affiliated with white supremacist groups.
¶ 62 A judge comments on the evidence if statements or conduct convey the judge's attitude toward the merits of the case or the judge's evaluation relative to the disputed issue. State v. Zimmerman, 130 Wash.App. 170, 174, 180, 121 P.3d 1216 (2005). A jury instruction that does no more than accurately state the law pertaining to an issue is not an impermissible comment on the evidence. State v. Woods, 143 Wash.2d 561, 591, 23 P.3d 1046, cert. denied, 534 U.S. 964, 122 S.Ct. 374, 151 L.Ed.2d 285 (2001); Zimmerman, 130 Wash.App. at 180-81, 121 P.3d 1216.
¶ 63 Here, the court's limiting instruction told the jury that it could consider the white supremacist evidence only to establish motive, premeditation, and to explain the circumstances surrounding the alleged crime. As we discussed above, the evidence was relevant and properly admitted for the jury's consideration on these issues. The instruction accurately stated the law and the legally permissible limits of the evidence. The trial court did not comment on the evidence by giving this limiting instruction.
¶ 64 Monschke also contends that even if the evidence was properly admitted under ER 404(b), the trial court “failed to make any kind of a reasonable limitation on the [amount of] highly prejudicial evidence.” Br. of Appellant at 59. Under ER 403, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice,” or by considerations such as “needless presentation of cumulative evidence.” We review a court's ER 403 rulings for abuse of discretion. State v. Luvene, 127 Wash.2d 690, 706-07, 903 P.2d 960 (1995).
¶ 65 At trial, Monschke denied any affiliation with hate-based or violent white supremacist subgroups; according to him, he was involved only with a group that “believe[s] in promoting race, but they d[o] not believe in hating races. They believe[ ] that all races are unique in their own way. They need to exist” 33 RP at 2763. Because Monschke's affiliations were relevant and in dispute, it was reasonable for the trial court to admit a substantial amount of probative evidence on the issue. See Campbell, 78 Wash.App. at 822, 901 P.2d 1050 (trial court did not abuse its discretion in permitting several witnesses to testify that the defendant was part of a violent gang when the defendant denied any such membership). Further, the record reflects that the court carefully exercised its discretion in deciding to admit the evidence: it reviewed each piece of white supremacist evidence the State sought to admit, it excluded several, and it repeated the limiting instruction to the jury on multiple occasions. The trial court did not abuse its discretion in setting the scope of admissible white supremacist evidence.
¶ 66 Monschke also asserts that the court erred in admitting testimony about violent acts committed by other white supremacists. Monschke cites to three such incidents. But two of the incidents complained of occurred during questioning by Monschke's counsel and Monschke did not object to the third incident. He invited or waived any error in this testimony. State v. McFarland, 127 Wash.2d 322, 332-33, 899 P.2d 1251 (1995); Storey v. Storey, 21 Wash.App. 370, 376, 585 P.2d 183 (1978), review denied, 91 Wash.2d 1017 (1979).
¶ 67 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c). The admission of testimonial hearsay violates a defendant's right of confrontation unless the declarant is unavailable and there was a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). A statement is “testimonial” if the declarant would reasonably expect it to be used prosecutorially. Crawford, 541 U.S. at 52, 124 S.Ct. 1354; State v. Shafer, 156 Wash.2d 381, 390 n. 8, 128 P.3d 87 (2006). This definition includes statements elicited in response to structured questioning during a police investigation. Crawford, 541 U.S. at 52-53 & n. 4, 124 S.Ct. 1354; State v. Walker, 129 Wash.App. 258, 268, 118 P.3d 935 (2005). The erroneous admission of testimonial hearsay requires reversal unless the error was harmless beyond a reasonable doubt. State v. Davis, 154 Wash.2d 291, 304, 111 P.3d 844, cert. granted, 546 U.S. 975, 126 S.Ct. 547, 163 L.Ed.2d 458 (2005).
¶ 68 Monschke contends that testimonial hearsay was offered through investigative detective Jeffrey Shipp. In his testimony, Detective Shipp recounted what the managers of the Rich Haven Apartments told him, namely that Butters, Frye, and Pillatos were evicted for yelling racial slurs at passersby; for painting racist graffiti on the back of the apartment building; and for Butters selling imitation cocaine to a drug addict. The State agrees that the manager's statements were testimonial, but it maintains that the statements were not offered to prove the truth of the matter asserted, and that, even if they were, Monschke's failure to object waived any error.
¶ 69 It is unnecessary for us to address whether a defendant may raise a testimonial hearsay objection for the first time on appeal 12 for, even assuming he can, there was no error here as the testimony was not hearsay. The State offered Detective Shipp's testimony to explain the context and background of the criminal investigation and how the investigation came to focus on Monschke, Butters, Frye, and Pillatos; it was not offered to prove that Monschke's cohorts were in fact yelling racial slurs, painting racist graffiti, or selling imitation drugs. Such background testimony is not hearsay. See State v. Lillard, 122 Wash.App. 422, 437, 93 P.3d 969 (2004), review denied, 154 Wash.2d 1002, 113 P.3d 482 (2005); State v. Post, 59 Wash.App. 389, 394-95, 797 P.2d 1160 (1990), aff'd, 118 Wash.2d 596, 826 P.2d 172 (1992).
¶ 70 Furthermore, even if we assume that the statements were testimonial hearsay, which we do not, any error in admitting the statements was harmless beyond a reasonable doubt. The events at the Rich Haven Apartments reflected a pattern of alarming behavior by Butters, Frye, and Pillatos, but it did not directly inculpate Monschke. Moreover, the events Detective Shipp recounted were cumulative of Butters, Frye, and Pillatos's testimony regarding their own racist conduct. We find no merit in Monschke's claim that Detective Shipp's testimony was prejudicial or that it violated his constitutional right to confront witnesses.
Testimony Regarding White Supremacy Groups
¶ 71 Monschke challenges the trial court's admission of expert testimony on whether white supremacy is a “group” within the meaning of RCW 10.95.020(6). Monschke maintains that Pitcavage's testimony was improper because it was a matter for the jury to decide. He also maintains that such testimony was inadmissible under ER 702 and Frye v. United States, 293 F. 1013 (D.C.Cir.1923).
¶ 72 As a threshold matter, Monschke is precluded from assigning error to Pitcavage's testimony since he also offered expert opinion testimony on whether “white supremacy” is a group. “[T]he objector is in essence estopped to appeal admission of objectionable evidence when he has used it on his own behalf, or pursued the matter so extensively as to compound the prejudice.” Storey, 21 Wash.App. at 376, 585 P.2d 183 (citations omitted). Monschke's decision to offer Blazak's testimony not only compounded the alleged error here, but served to neutralize it by providing the jury with two opposing expert opinions on this issue.
¶ 73 Nonetheless, we will address the issues that Monschke raises. Whether white supremacy is a “group” under RCW 10.95.020(6) was an issue for the jury to decide. But “[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” ER 704. Nor does the fact that an opinion encompassing ultimate factual issues support the conclusion that the defendant is guilty make the testimony improper: “[I]t is the very fact that such opinions imply that the defendant is guilty which makes the evidence relevant and material.” State v. Wilber, 55 Wash.App. 294, 298 n. 1, 777 P.2d 36 (1989). If such testimony satisfies ER 702, it is admissible. State v. Baird, 83 Wash.App. 477, 484-85, 922 P.2d 157 (1996), review denied, 131 Wash.2d 1012, 932 P.2d 1256 (1997).
¶ 74 ER 702 requires that the witness be qualified as an expert and that the testimony be helpful to the trier of fact. State v. Farr-Lenzini, 93 Wash.App. 453, 460, 970 P.2d 313 (1999). Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. Farr-Lenzini, 93 Wash.App. at 461, 970 P.2d 313.
¶ 75 Monschke does not challenge Pitcavage's qualification as an expert; rather, he maintains that Pitcavage's testimony was not helpful to the jury. But at trial, Monschke did not object to Pitcavage's testimony on the basis that whether white supremacy was a “group” was within the jury's common knowledge. A defendant must state the exact grounds for excluding evidence at the time he objects “so that the judge may understand the question raised and the adversary may be afforded an opportunity to remedy the claimed defect.” State v. Boast, 87 Wash.2d 447, 451, 553 P.2d 1322 (1976) (quoting Presnell v. Safeway Stores, Inc., 60 Wash.2d 671, 675, 374 P.2d 939 (1962)). Said differently, an appellate court will not consider specific evidentiary objections raised for the first time on appeal. State v. Ferguson, 100 Wash.2d 131, 138, 667 P.2d 68 (1983).
¶ 76 At trial, Monschke did object that Pitcavage's testimony was inadmissible under the Frye test. See State v. Copeland, 130 Wash.2d 244, 255-56, 922 P.2d 1304 (1996). Under Frye, if an expert's opinion is based on a scientific theory or method, the theory or method must be one generally accepted in the scientific community. But the Frye test applies to testimony regarding novel scientific evidence, not expert testimony recounting practical experience and acquired knowledge. State v. Ortiz, 119 Wash.2d 294, 311, 831 P.2d 1060 (1992) (expert testimony on tracking human beings not subject to Frye ). Pitcavage's testimony and opinions on white supremacy was acquired knowledge gained through experience, observation, and study. The testimony was therefore not subject to Frye.
Trial Testimony Limitations
¶ 77 Monschke next maintains that the trial court improperly limited his questioning of Pillatos, Pitcavage, and Blazak. Although a defendant has a general constitutional right to control the mode and scope of his defense, this right is tempered by the trial court's broad discretion to control the admission and presentation of evidence. See State v. Rehak, 67 Wash.App. 157, 162, 834 P.2d 651 (1992), review denied, 120 Wash.2d 1022, 844 P.2d 1018, cert. denied, 508 U.S. 953, 113 S.Ct. 2449, 124 L.Ed.2d 665 (1993). The trial court's broad discretion extends to the mode of witness questioning, 13 cross-examination on matters that only remotely show bias or prejudice,14 and the exclusion of irrelevant testimony or evidence. 15
¶ 78 Before testifying, Pillatos informed the court that he would not answer the State's questions. He said that he would answer questions from Monschke's attorneys if they called him as a defense witness. The State called Pillatos to the witness stand. After Pillatos refused to answer any questions, even under threat of contempt, the State “defer[red] to defense ․ if they agree.” 29 RP at 2030. Defense counsel then began asking leading questions. The State objected and requested that all questions be asked in the form of a direct examination. The court sustained the objection and informed defense counsel: “If you wish to ask questions, it will be in the manner of direct testimony.” 29 RP at 2031. Defense counsel objected but proceeded.
¶ 79 Monschke argues that the trial court abused its discretion by prohibiting him from asking Pillatos leading questions. We disagree.
¶ 80 Monschke did not ask to have Pillatos declared a hostile witness, see ER 611(c), nor does he explain how the court's ruling precluding his use of leading questions prejudiced his defense. In addition, because Pillatos refused to answer the State's questions, there was no testimony to cross-examine Pillatos about. See ER 611(b)-(c) (cross-examination should be limited to the subject matter of the direct examination; leading questions generally permissible for cross-examination but not direct examination). The court thus had a reasonable basis for requiring Monschke's questioning to be in the form of a direct examination just as it would have done if the defense had called Pillatos to the stand out of order in the middle of the State's case-in-chief. The trial court did not abuse its discretion here.
¶ 81 Monschke argues that the trial court abused its discretion in prohibiting him from impeaching Pitcavage's testimony with questions about whether the ADL had been successfully sued for slander and libel in a case from Colorado in the 1980s. The court's refusal to permit questioning on this point was a proper exercise of its discretion: the court did allow Monschke to explore any bias or prejudice of the ADL, but the lawsuit Monschke sought to raise was remote, isolated, and had not involved Pitcavage. Thus, it was an attempt to impeach on a collateral matter and irrelevant. State v. Descoteaux, 94 Wash.2d 31, 37-38, 614 P.2d 179 (1980) (witness cannot be impeached on an issue collateral to the issue being tried; issue is collateral if it is not admissible independently of the impeachment purpose), overruled on other grounds by State v. Danforth, 97 Wash.2d 255, 257 n. 1, 643 P.2d 882 (1982).
¶ 82 Monschke argues that the trial court abused its discretion in excluding Blazak's testimony about the prevalence of race-based gangs in juvenile detention facilities. Monschke had testified that he first became involved with white pride groups while incarcerated as a 12-year-old. Monschke argues that Blazak's testimony was necessary to explain “why he might join a white gang in custody and how that might have explained his participation in white pride or white power activities.” Br. of Appellant at 89. How Monschke came to join a race-based group might have been relevant in a death penalty phase, but it was not relevant in determining guilt; what was relevant was his current beliefs, his current associations, and how those beliefs and associations played a role in his murder of a white homeless man. The trial court did not abuse its discretion in excluding this irrelevant evidence.
Letter from Frye to the Prosecutor
¶ 83 Monschke maintains that the trial court erred in refusing to provide discovery of a letter Frye wrote to one of the trial prosecutors. The letter was written after Frye's first day of testimony, but it was not received, opened, and read until Frye had completed her testimony. The prosecutor disclosed the letter to the court the day after it was received, but requested that the letter be sealed under CrR 4.7(h)(6) and not provided to Monschke. The court granted the request, concluding that the letter involved matters of a personal nature having nothing to do with Monschke.
¶ 84 The trial court has broad discretion in setting the scope of discovery. Brown, 132 Wash.2d at 626, 940 P.2d 546. While sealing documents is an extraordinary step that Washington courts should be reluctant to take, it is appropriate where the record and individual circumstances of the case clearly establish a “good cause” basis. Rufer v. Abbott Labs., 154 Wash.2d 530, 540-41, 114 P.3d 1182 (2005). Good cause requires considerations of the public interest in the open administration of justice, whether sealing threatens the defendant's right to a fair trial, and whether sealing is necessary “to prevent a serious and imminent threat to an important interest.” Rufer, 154 Wash.2d at 540, 114 P.3d 1182; Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 37-38, 640 P.2d 716 (1982).
¶ 85 We have reviewed Frye's letter and conclude that there was a good cause basis to seal it. The letter has no evidentiary value. It includes nothing that could have been used to impeach a witness and nothing that would have exculpated Monschke. The court did not abuse its discretion in sealing the letter and in refusing to allow Monschke to read the letter, which had no evidentiary value.
Prosecutor's Questioning of Hawkins
¶ 86 Monschke maintains that the prosecutor committed misconduct by implying that defense counsel had tampered with Hawkins's testimony. We disagree.
¶ 87 Hawkins told law enforcement and the prosecutors that he found Townsend lying on his back. At trial, Hawkins gave equivocal and contradictory testimony as to whether he found Townsend lying on his back or on his stomach. The prosecutor then asked, “Is someone talking to you and trying to get you to say something to help out Mr. Monschke?” 23 RP at 1228. Hawkins answered no, but the prosecutor then asked, “Do you recall telling me that after meeting with [Monschke's defense team] you were concerned they were trying to get you to say things that were not true?” 23 RP at 1229. Hawkins responded, “Well, yes. I probably told you that․ I thought at the time that they was [sic] trying. Not trying to make me lie, but just tell what I seen [sic].” 23 RP at 1229. The prosecutor then questioned Hawkins about the meeting with the defense team. Hawkins explained that he was asked many questions; that defense counsel opined that Monschke was innocent; and that defense counsel had speculated on the events surrounding Townsend's murder.
¶ 88 Monschke did not timely object to the prosecutor's questioning. Instead his counsel waited until the State had completed its direct examination of Hawkins and then moved for a mistrial after the lunch recess. See State v. Gallo, 20 Wash.App. 717, 728, 582 P.2d 558 (“An objection which comes after the witness has answered is not timely unless there was no opportunity to object or it was not apparent from the question that the answer would be inadmissible.”), review denied, 91 Wash.2d 1008 (1978). In addition, although the record does not reflect that the defense team acted improperly during the interview with Hawkins, in light of Hawkins's inconsistent testimony and his prior statement that he felt pressured to change his story, it was arguably appropriate to clarify Hawkins's testimony and explore the basis for his prior inconsistent statements. See ER 607 (either party may test the credibility of a witness); State v. Russell, 125 Wash.2d 24, 92-93, 882 P.2d 747 (1994) (defense counsel's conduct may be questioned if there is specific evidence in the record to support such an allegation), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995); accord United States v. Patterson, 23 F.3d 1239, 1248 (7th Cir.) (where witness's story changes after meeting with defense counsel, “[t]he prosecutor need not ignore the circumstances and evidence surrounding the prior inconsistent statements”), cert. denied, 513 U.S. 1007, 115 S.Ct. 527, 130 L.Ed.2d 431 (1994).
¶ 89 Monschke maintains that the to-convict instruction for first degree murder was erroneous because the jury was not instructed “to find that [Monschke] actually beat Randall Townsend or that he actually intended to cause the death of Randall Townsend; under the court's instruction, the jury did not need to find that [Monschke] participated in either the actus reas [sic] or the mens rea of the crime.” Br. of Appellant at 91. We disagree.
¶ 90 The jury was instructed on accomplice liability in the language of RCW 9A.08.020, the accomplice liability statute. See State v. McDonald, 138 Wash.2d 680, 688, 981 P.2d 443 (1999) (a defendant is guilty whether he participates in a crime as an accomplice or as a principal). The court's instruction mirrors 11 Washington Pattern Instructions: Criminal 10.51, at 136 (Supp.2005). The instruction correctly required that the jury find Monschke guilty only if it found that he, “with knowledge that [his actions] will promote or facilitate the commission of the crime of murder, [the defendant] either: (1) solicits, commands, encourages, or requests another person to commit the murder; or (2) aids or agrees to aid another person in planning or committing the murder.” 3 CP at 384.
¶ 91 Likewise, the court's to-convict instruction accurately set forth the actus reus and mens rea of first degree murder as set forth in RCW 9A.32.030(1)(a):
(1) That on or about the 23rd day of March, 2003, the defendant or a person to whom defendant was acting as an accomplice beat Randall Townsend;
(2) That the defendant or a person to whom defendant was acting as an accomplice acted with intent to cause the death of Randall Townsend.
(3) That the intent to cause the death was premeditated.
3 CP at 386. The court's instructions were consistent with the rule that “[a] defendant charged as an accomplice to first degree murder may be convicted on proof that he knew generally he was facilitating a homicide, but need not have known that the principal had the kind of culpability required for any particular degree of murder.” State v. Mullin-Coston, 115 Wash.App. 679, 692 n. 6, 64 P.3d 40 (2003) (discussing State v. Roberts, 142 Wash.2d 471, 512-13, 14 P.3d 713 (2000)), aff'd, 152 Wash.2d 107, 95 P.3d 321 (2004). The trial court properly instructed the jury on the elements of first degree premeditated murder and accomplice liability. Monschke's challenge to the instructions is without merit.
Prosecutorial Misconduct and Accomplice Liability
¶ 92 In a similar vein, Monschke maintains that the prosecutor erroneously set forth the law of accomplice liability in closing argument. But Monschke did not object to the prosecutor's closing argument at any point. Failing to object during closing argument waives review of an allegedly improper remark unless the remark is so flagrant and ill-intentioned that a curative instruction could not have alleviated the resulting prejudice and any objection would have been futile. See Brown, 132 Wash.2d at 561, 940 P.2d 546. Here, the court instructed the jury that the arguments of counsel are not evidence and that it must decide the case based on the law as set forth in its instructions. Had defense counsel timely objected to the prosecution's closing argument that he belatedly claims to be improper, the court could have given a special additional jury instruction to ignore the prosecutor's argument and to focus on the accomplice liability instruction, which, as previously noted, accurately stated the law. No objection was made to the State's argument and Monschke has not preserved this issue for our review.
¶ 93 Moreover, the remark at issue was not improper. The prosecutor correctly argued that accomplice liability did not require a finding that Monschke had a premeditated intent to cause Townsend's death. See Roberts, 142 Wash.2d at 512-13, 14 P.3d 713; Mullin-Coston, 115 Wash.App. at 692 n. 6, 64 P.3d 40. As the prosecutor correctly argued, Monschke was guilty of murdering Townsend, regardless of its degree or the alternative means at issue, if he affirmatively acted with the knowledge that his act would facilitate or promote Townsend's death and that Townsend's death was premeditated by Monschke or someone to whom he was an accomplice. The prosecutor was correct that in this narrow sense, Monschke was “in for a penny ․ in for a pound.” 35 RP at 3061. Cf. Roberts, 142 Wash.2d at 513, 14 P.3d 713 (accomplice's knowledge that the principal intends to commit “a crime” does not impose strict liability for any and all offenses that follow).16
Statement of Additional Grounds (SAG)
¶ 94 Monschke also raises several issues in his SAG. See RAP 10.10. We address only those issues that the record reflects and Monschke adequately discusses. See State v. Spring, 128 Wash.App. 398, 407, 115 P.3d 1052 (2005).
¶ 95 Monschke maintains that the trial court erred in proceeding to trial without obtaining a competency evaluation. See former RCW 10.77.060(1)(a) (2000). Defense counsel made a pretrial motion for a competency evaluation. The court signed an order to perform the evaluation, but Monschke refused to cooperate with the evaluation. Subsequently defense counsel informed the court that a voluntary medication regimen had alleviated his concerns regarding Monschke's mental health. The trial court then entered an order finding Monschke competent to stand trial.
¶ 96 At a subsequent pretrial hearing, defense counsel informed the court that Monschke's medications had recently been modified to address recurring panic attacks and periods where Monschke was unable to focus. Defense counsel indicated that the symptoms might reoccur and that he would inform the court if Monschke was unable to participate in his defense.
¶ 97 The trial court must obtain a medical report on the defendant's mental condition whenever there is “reason to doubt” his competency. Former RCW 10.77.060(1)(a). The defense bears the threshold burden of establishing a reasonable question of competency. Woods, 143 Wash.2d at 604-05, 23 P.3d 1046. A defendant is “incompetent” if he “lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.” RCW 10.77.010(14); see also State v. Harris, 114 Wash.2d 419, 427, 789 P.2d 60 (1990) (defendant is competent if capable of properly appreciating his peril and of rationally assisting in his own defense; important competency consideration is the defendant's ability to relate past events which would be useful in assisting his counsel in whatever defense counsel decides is appropriate).
¶ 98 Although defense counsel twice raised concerns about Monschke's mental health, he assured the court that Monschke was able to assist in his own defense. An attorney's opinion regarding his client's competency is given considerable weight. Woods, 143 Wash.2d at 605, 23 P.3d 1046. Defense counsel also told the court that Monschke was voluntarily taking medication that had alleviated his emotional and mental health problems. He assured the court that any future concerns would be brought to the court's attention; the issue was not raised again. Monschke's trial testimony also reflects a competent individual who fully recalled the events at issue and understood the nature of the proceedings against him. Monschke has not shown that the trial court was presented with a reasonable basis to doubt his competency.
¶ 99 Monschke maintains that the court violated his speedy trial rights by granting a two-month trial continuance. Prior to their plea agreements, Butters and Pillatos requested the continuance citing scheduling conflicts and the need for further investigation. Monschke and Frye objected and requested that their trial be severed so they could proceed to trial on the previously set date.
¶ 100 We review a trial court's decision to grant a continuance for abuse of discretion. Woods, 143 Wash.2d at 579, 23 P.3d 1046. Under CrR 3.3(f)(2), a defendant challenging a continuance must show that he suffered prejudice in the presentation of his defense. State v. O'Neal, 126 Wash.App. 395, 417, 109 P.3d 429, review granted, 155 Wash.2d 1024, 126 P.3d 820 (2005). Monschke does not point to any such prejudice here.
¶ 101 Further, Monschke's argument that the continuance entitled him to have his trial severed from his co-defendants is controlled by State v. Dent, 123 Wash.2d 467, 869 P.2d 392 (1994). There, the trial court denied one defendant's motion to sever. Instead, it granted a continuance of more than two months past the defendant's speedy trial period so that the co-defendant's new counsel could adequately prepare for trial. The Dent court held that the trial court did not abuse its discretion by continuing the trial because the defendant failed to allege any prejudice resulting from the delay and the “interests of judicial efficiency” favored a joint trial. 123 Wash.2d at 484, 869 P.2d 392.17 The facts are similar here: the continuance was based on reasonable grounds; severances are not favored; and Monschke does not claim or demonstrate prejudice to his ability to present his defense. The trial court did not abuse its discretion in granting a continuance over Monschke's objection.
Trial Court Rulings
¶ 102 Monschke maintains that the trial court erred in permitting witnesses to discuss curb stomping when there was no evidence that it was relevant to Townsend's injuries. Monschke's view of the record is incorrect. Townsend was found with his head lying on the train tracks. Frye testified that Townsend's head was stomped on while it laid on the train track. The State's medical examiner also testified that Townsend's injuries were consistent with curb stomping. Evidence and references to curb stomping was relevant given that Townsend's wounds were consistent with such an attack.
¶ 103 Monschke also maintains that the court erred in admitting statements he made to police after an equivocal request for an attorney. The trial court initially ruled that the statements were inadmissible because officers did not clarify whether Monschke was invoking his right to an attorney. But see Walker, 129 Wash.App. at 274-75 & n. 45, 118 P.3d 935 (2005) (noting that Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), overruled the Washington Supreme Court's conclusion that statements are inadmissible if made following an equivocal invocation of the right to attorney). But during Monschke's testimony, the trial court reviewed its earlier ruling and authorized certain statements to be used to impeach Monschke's inconsistent testimony. This was a correct ruling. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), may be used for impeachment purposes).
¶ 104 Monschke maintains that the trial court erred in removing Blazak from the courtroom during Pitcavage's testimony. But this was within the court's discretion. ER 615.
¶ 105 Monschke maintains that the prosecutors committed misconduct by portraying Frye as a “good person ․ who would never have anything to do with something like this.” SAG at 10. Monschke's claim is undercut by the State's elicitation that Frye pleaded guilty to second degree murder. Further, credibility determinations are for the trier of fact. Thomas, 150 Wash.2d at 874, 83 P.3d 970.
¶ 106 Monschke maintains that the prosecutors committed misconduct by seizing his mail and opening a letter written to his attorney. But the record reflects that the county jail mistakenly opened the letter. Only intentional interference with attorney-client communications may warrant dismissal. See State v. Granacki, 90 Wash.App. 598, 959 P.2d 667 (1998).
¶ 107 Monschke maintains that the prosecutors tampered with witnesses. He cites no evidence and his allegations are based on matters outside the record on appeal. Thus, we cannot address them here. Monschke must file a timely personal restraint petition if he has evidence to support his claim. See McFarland, 127 Wash.2d at 335, 899 P.2d 1251 (matters outside the record must be raised and properly supported in a personal restraint petition).
¶ 108 Monschke lastly maintains that cumulative error denied him a fair trial. That doctrine requires reversal where several harmless errors had the cumulative effect of seriously impugning the integrity of the defendant's trial. State v. Greiff, 141 Wash.2d 910, 929, 10 P.3d 390 (2000). Having considered the entire record and all the issues raised, we conclude that Monschke received a fair and sound trial.
¶ 109 Affirmed.
1. We address Monschke's additional assignments of error in the unpublished portion of this opinion. Our resolution of those issues does not alter the result.
2. A pair of lightning bolts in the shape of “SS” is a neo-Nazi symbol. “Wigger” is a disparaging term used to describe white individuals who associate with minorities. “SHARPS” is an acronym for the white supremacist group Skinheads Against Racial Prejudice. “Spic” is a disparaging term used to describe a person of Latin American descent.
3. 27 RP at 1789.
4. 27 RP at 1793-94; see note 1, supra.
5. Monschke was evicted from his apartment in the period between the attack and his arrest.
6. Andrew MacDonald, The Turners Diaries (2d ed.1996).
7. 28 RP at 1920.
8. 28 RP at 1923.
9. 28 RP at 1922.
10. Br. of Appellant at 43.
11. A vagueness challenge to an aggravating circumstance may be under either the due process clause of the Fourteenth Amendment or the Eighth Amendment's prohibition against cruel and unusual punishment. See State v. E.A.J., 116 Wash.App. 777, 792, 67 P.3d 518 (2003), review denied, 150 Wash.2d 1028, 82 P.3d 243 (2004). An Eighth Amendment claim focuses on whether the challenged provision “fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with ․ open-ended discretion.” E.A.J., 116 Wash.App. at 792, 67 P.3d 518 (quoting Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)). A due process challenge focuses on the sufficiency of notice to the accused. E.A.J., 116 Wash.App. at 792, 67 P.3d 518.
FN12. Certain state courts have answered no to this question. See C.C. v. State, 826 N.E.2d 106, 110 (Ind.Ct.App.2005); State v. Torres, 2005-NMCA-070, ¶ 19, 137 N.M. 607, 113 P.3d 877 (N.M.Ct.App.2005). See generally RAP 2.5(a)(3) (only a “manifest error affecting a constitutional right” may be raised for the first time on appeal); State v. Scott, 110 Wash.2d 682, 687, 757 P.2d 492 (1988) (manifest error exception “is a narrow one, affording review only of ‘certain constitutional questions' ”) (quoting RAP 2.5 cmt. a); State v. Lynn, 67 Wash.App. 339, 343, 835 P.2d 251(1992) (discussing the reasons for a judicious understanding of manifest error). We note that Monschke failed to object on testimonial hearsay grounds even though Crawford was issued before his trial. See State v. Borboa, 124 Wash.App. 779, 792, 102 P.3d 183 (2004), review granted, 154 Wash.2d 1020, 116 P.3d 398 (2005).. FN12. Certain state courts have answered no to this question. See C.C. v. State, 826 N.E.2d 106, 110 (Ind.Ct.App.2005); State v. Torres, 2005-NMCA-070, ¶ 19, 137 N.M. 607, 113 P.3d 877 (N.M.Ct.App.2005). See generally RAP 2.5(a)(3) (only a “manifest error affecting a constitutional right” may be raised for the first time on appeal); State v. Scott, 110 Wash.2d 682, 687, 757 P.2d 492 (1988) (manifest error exception “is a narrow one, affording review only of ‘certain constitutional questions' ”) (quoting RAP 2.5 cmt. a); State v. Lynn, 67 Wash.App. 339, 343, 835 P.2d 251(1992) (discussing the reasons for a judicious understanding of manifest error). We note that Monschke failed to object on testimonial hearsay grounds even though Crawford was issued before his trial. See State v. Borboa, 124 Wash.App. 779, 792, 102 P.3d 183 (2004), review granted, 154 Wash.2d 1020, 116 P.3d 398 (2005).
FN13. ER 611(a); Stevens v. Gordon, 118 Wash.App. 43, 55-56, 74 P.3d 653 (2003).. FN13. ER 611(a); Stevens v. Gordon, 118 Wash.App. 43, 55-56, 74 P.3d 653 (2003).
FN14. State v. Kilgore, 107 Wash.App. 160, 185, 26 P.3d 308 (2001), aff'd, 147 Wash.2d 288, 53 P.3d 974 (2002).. FN14. State v. Kilgore, 107 Wash.App. 160, 185, 26 P.3d 308 (2001), aff'd, 147 Wash.2d 288, 53 P.3d 974 (2002).
FN15. ER 401; In re Pers. Restraint of Young, 122 Wash.2d 1, 53, 857 P.2d 989 (1993).. FN15. ER 401; In re Pers. Restraint of Young, 122 Wash.2d 1, 53, 857 P.2d 989 (1993).
FN16. Although the prosecutor did not improperly use the phrase, “in for a penny, in for a pound,” here, we encourage the State to refrain from using this expression for concern that it might be confused with the usage disavowed in Roberts.. FN16. Although the prosecutor did not improperly use the phrase, “in for a penny, in for a pound,” here, we encourage the State to refrain from using this expression for concern that it might be confused with the usage disavowed in Roberts.
FN17. Subsequent amendments to CrR 3.3 have not limited Dent's holding.. FN17. Subsequent amendments to CrR 3.3 have not limited Dent's holding.