164 Wn. App. 81, STATE V. HILTON

[No. 26899-3-III. Division Three. September 27, 2011.]

THE STATE OF WASHINGTON, Respondent, v. KEVIN LEE HILTON, Appellant.

May 10, 2011, Oral Argument

Lenell R. Nussbaum, for appellant.

Andrew K. Miller, Prosecuting Attorney, and Terry J. Bloor, Deputy, for respondent.

Author: Kevin M. Korsmo, A.C.J.

We concur: Stephen M. Brown, J., Laurel H. Siddoway, J.Kevin M. Korsmo

1 KORSMO, A.C.J. -- For the second time, a jury convicted Kevin Hilton of two counts of aggravated first degree murder in the killings of Josephine and Lawrence Ulrich. His appeal raises numerous issues, three of which we address in the published portion of this opinion. The convictions are affirmed.

BACKGROUND 1

1 Additional evidence will be discussed in conjunction with the analysis of the respective issues.

2 Lisa Ulrich discovered her parents' bodies in their Richland home shortly after 9:00 a.m. on March 21, 2002. Autopsies determined that they had been killed the evening before. There was no sign of forced entry. Both had been shot by a .45 caliber handgun.

3 Five .45 caliber bullets were recovered from the victims and their house. Police discovered three .45 caliber "A-Merc" brand shell casings at the scene. Knowing the brand to be uncommon, a detective 2 began investigating local gun shops to see which of them sold that ammunition and to whom.

2 Detective Randy Bricker, who found the A-Merc casings, owned his own firearms shop and was licensed to manufacture and sell firearms and ammunition. He had never before seen the A-Merc stamp. He was assigned to visit the area firearms dealers.

4 The Ulrichs were longtime landlords who owned seven residential rental properties in Richland at the time of their deaths. Clasped in Mr. Ulrich's hand was a yellow note folded to conceal a rent receipt for Kevin Hilton in the sum of $3,475, representing the total of several months of back rent he owed the Ulrichs. A file folder containing Mr. Hilton's rental documents was found on top of the couple's refrigerator. It contained a three-day, pay-or-quit notice dated March 15, 2002 directed to Mr. Hilton. The receipt book was missing, as was the kitchen telephone handset. The missing telephone had a caller identification (ID) feature. The caller ID feature on an upstairs telephone showed that the last telephone call had been from Kevin Hilton at 6:42 p.m. on March 20.

5 Police contacted all of the Ulrichs' tenants on March 21 except for Mr. Hilton. Officers were able to make contact with him the next day; he invited them into his duplex. He explained his whereabouts on the night of the murder--he had shopped for groceries at Winco, returned the book Hard Time to the Richland library, and then gone to volleyball practice. He also told them that he owed the Ulrichs $3,475, but they had reached an agreement over the telephone on March 20th on a plan to pay the rent. Police also learned that Mr. Hilton owned several rifles and engaged in competitive shooting events. He said he had previously owned four handguns, including two Norinco .45 caliber handguns. He said that he had sold one Norinco to Dirk Leach and the other to someone at a gun show in Walla Walla six to eight months earlier. 3

3 Police were able to trace only one of the two .45 caliber Norinco handguns. Testing showed that the weapon sold to Mr. Leach was not the murder weapon.

6 Police later served a search warrant on Mr. Hilton's duplex. They discovered some used .45 caliber A-Merc shell casings as well as receipts from Schoonie's Rod Shop for A-Merc .45 caliber ammunition. Testing determined that the shell casings had been fired from the same gun used to kill the Ulrichs. The murder weapon was never located.

7 The prosecutor ultimately filed two charges of aggravated first degree murder against Mr. Hilton. The case proceeded to jury trial in 2003. Mr. Hilton did not testify in that trial. The jury found him guilty as charged. He then appealed to this court.

8 This court determined that the search warrant for the duplex, which had uncovered the matching A-Merc shells, was invalid due to lack of specificity to guide officers in their search. Because the matching shells were very significant incriminating evidence, the convictions were reversed. State v. Hilton, noted at 131 Wn. App. 1020 (2006), review denied, 158 Wn.2d 1027 (2007).

9 The case was scheduled for retrial. Among the many pretrial matters the parties addressed was how to reference testimony from the first trial. Defense counsel requested that the first trial simply be referred to as the "prior proceeding." The trial judge and opposing attorneys agreed with that nomenclature. Report of Proceedings (RP) at 224-26.

10 The State also moved in limine to prohibit the defense from accusing Lisa Ulrich of committing the murders. Defense counsel advised the court about numerous topics that Lisa Ulrich had been cross-examined about during the first trial and indicated that the defense intended to again cover those areas. He did not want the third party perpetrator ruling to limit those areas of inquiry. RP at 201-04. Defense counsel then concluded his argument:

So, minimally, I think the court should allow what was allowed last time in terms of cross-examination. We don't characterize that as other party perpetrator evidence, and we're entitled to do it under the rules of cross-examination.

RP at 205. The trial court ruled that third party perpetrator evidence would be excluded. The court explained:

THE COURT: There is nothing in the record that causes me to overrule the former ruling of the court that third party perpetrator evidence will be excluded. It is, once again, excluded. In principle, I don't think the defense has any heartburn with the ruling this time or last. However, I am very sensitive to the fact that defense is entitled to the old sifting and thorough cross-examination.

There are certain items which, to me right now, are in the nature of motion in limine. Ms. Ulrich's shoe size is clearly across the line and constitutes third party perpetrator evidence in my opinion, but there are many other things that have been raised by either the defense or the State that could be either.

You know, records. The discussion about the records, things like that. I'm not prepared at this time to rule those out. In fact, if you're asking me to--in the--to exclude 'em now, I'll deny it. There's gonna be a lot of items that are gonna have to be taken up during the course of the trial on a case-by-case basis as issues arise.

Whether or not you choose to object to--well, they may not even ask the questions about 'em, but if they do ask similar questions about these other things, will you choose to raise an objection this second time around or let it go? I don't know.

So I'll field those objections as they pop up, but I'm inclined to agree with the defense. There's a lot of information that the State is objecting to that may be, might be considered third party perpetrator evidence that is nothing more than thorough and sifting cross-examination of testimony that is developed by the State in its presentation in chief with that witness, and so, you know, just because it maybe, might be third party evidence, doesn't mean it's gonna be excluded if it has a--some semblance of a bearing on cross-examination of direct testimony of a witness.

RP at 207-08.

11 Although the receipts seized from Mr. Hilton's duplex and the matching casings had been suppressed, the prosecutor still sought to admit evidence that Mr. Hilton had purchased A-Merc .45 caliber bullets. The trial court ruled that the Schoonie's Rod Shop owner could testify and her records of the sales could be admitted at trial. The court reasoned that the evidence was admissible under either the inevitable discovery or independent source doctrines. Clerk's Papers (CP) at 26.

12 Unlike the first trial, Mr. Hilton testified on his own behalf in the second trial. Typically without objection, the prosecutor was permitted to question Mr. Hilton about the fact that he was familiar with the discovery and prior testimony. The prosecutor also argued in closing that Mr. Hilton had tailored his alibi testimony to fit the State's evidence.

13 The jury found Mr. Hilton guilty of both counts of first degree murder and also found that both offenses were committed with the aggravating factor that there were multiple killings committed as part of a common scheme or plan. He was sentenced to life in prison without possibility of parole. He then timely appealed to this court.

14 A week after oral argument in this court, the Washington Supreme Court released its decision in State v. Martin, 171 Wn.2d 521, 252 P.3d 872 (2011). The parties filed supplemental briefs on the impact of Martin to this case.

ANALYSIS

15 The published portion of this opinion addresses the following three issues: (1) whether the trial court erred in admitting the gun shop evidence under the independent source doctrine; (2) whether the prosecutor violated Martin when he questioned Mr. Hilton and argued about his ability to tailor testimony; and (3) whether the trial court erred in excluding third party perpetrator evidence and argument.

Independent Source Doctrine

16 The trial court admitted the gun shop owner's testimony and records under both inevitable discovery and independent source theories. The State concedes that the inevitable discovery doctrine does not apply in Washington, 4 but does contend that the trial court correctly applied the independent source doctrine to admit the evidence. We agree.

4 State v. Winterstein, 167 Wn.2d 620, 624, 220 P.3d 1226 (2009).

[1, 2] 17 The conclusions of law entered following a suppression hearing are reviewed de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). Factual findings are reviewed for substantial evidence, i.e., evidence sufficient to convince a rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings are treated as verities on appeal. Id.

[3] 18 The exclusionary rule generally requires that evidence obtained from an illegal search and seizure be suppressed. State v. Gaines, 154 Wn.2d 711, 716-17, 116 P.3d 993 (2005). Evidence derived from an illegal search may also be suppressed as fruit of the poisonous tree. Id. at 717; Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Typically, the testimony of a witness whose identity is discovered through a constitutional violation is not suppressed; the free will of the witness attenuates any taint that led to the discovery of the witness. E.g., United States v. Ceccolini, 435 U.S. 268, 274-80, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978) (Fourth Amendment violation); Michigan v. Tucker, 417 U.S. 433, 449-52, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974) (Fifth Amendment violation). Washington courts have likewise recognized that the testimony of a witness discovered through a constitutional violation is not subject to suppression. E.g., State v. Russell, 125 Wn.2d 24, 57 n.9, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995); State v. O'Bremski, 70 Wn.2d 425, 429-30, 423 P.2d 530 (1967); State v. Dods, 87 Wn. App. 312, 316-19, 941 P.2d 1116 (1997); State v. Stone, 56 Wn. App. 153, 161-62, 782 P.2d 1093 (1989), review denied, 114 Wn.2d 1013 (1990); State v. West, 49 Wn. App. 166, 168-71, 741 P.2d 563 (1987); State v. Early, 36 Wn. App. 215, 220-22, 674 P.2d 179 (1983); State v. Childress, 35 Wn. App. 314, 316-17, 666 P.2d 941, review denied, 100 Wn.2d 1031 (1983).

[4, 5] 19 Evidence tainted by unlawful police action also is not subject to exclusion if it is obtained pursuant to a valid warrant or other lawful means independent of the unlawful action. Gaines, 154 Wn.2d at 718; State v. Miles, 159 Wn. App. 282, 291-98, 244 P.3d 1030, review denied, 171 Wn.2d 1022 (2011); Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct. 182, 64 L. Ed. 319 (1920). This doctrine is well recognized under both the state and federal constitutions. Gaines, 154 Wn.2d at 717, 722 (independent source exception complies with article I, section 7 of the Washington Constitution); O'Bremski, 70 Wn.2d at 428-29; Murray, 487 U.S. at 537 (citing Silverthorne Lumber, 251 U.S. at 392) (if knowledge pertaining to illegally obtained evidence and derivative incriminating evidence is gained from an independent source, the evidence obtained by unlawful government action need not be suppressed). The rationale for the rule is that the police should not be in a worse position than they otherwise would have been in because of the error. Murray, 487 U.S. at 537.

[6-8] 20 The basic question in applying the independent source rule is determining whether the police activity "'was in fact a genuinely independent source of the information and tangible evidence at issue' here." Miles, 159 Wn. App. at 294 (quoting Murray, 487 U.S. at 542). In Winterstein, one of the reasons given by the court for rejecting the inevitable discovery doctrine is that whether the police would have discovered the evidence apart from the constitutional violation "is necessarily speculative." 167 Wn.2d at 634. Seizing upon this observation, Mr. Hilton argues that the determination that Detective Bricker found the sales records at Schoonie's Rod Shop independent of the records found in his apartment was also speculative.

21 It was not. Well prior to the search warrant for Mr. Hilton's apartment, the police had recognized the unusual ammunition and decided to trace it. Detective Bricker had already contacted the manufacturer, although he had not begun contacting local suppliers, before the search warrant issued. 5 Even after contacting Schoonie's, the detective continued to contact all of the other local ammunition sellers. While at Schoonie's, he did not limit himself to Mr. Hilton's A-Merc records, but obtained the records for all purchasers of that ammunition. In short, the record reflects that the detective was not focused solely on Mr. Hilton, but was identifying other local A-Merc customers as well. Far from simply exploiting information obtained at Mr. Hilton's apartment, the detective was thoroughly pursuing a lead first developed at the murder scene.

5 Mr. Hilton's challenge to finding of fact 22 is correct; the record does not reflect that Detective Bricker received the directive to check the local firearms dealers before the search warrant issued.

22 When dealing with derivative evidence, the factual question that must be answered under the independent source doctrine appears similar to the issue presented by the inevitable discovery doctrine. However, it is not the same. Inevitable discovery involves evidence that was wrongly obtained. Washington courts will not entertain the speculative question about whether the police ultimately would have obtained the same information by other, lawful means. In contrast, inevitable discovery in the context of derivative evidence, necessarily deals with evidence that itself was not unlawfully obtained. Instead, the question is whether the process of obtaining the derivative evidence was tainted by an earlier illegality. This factual problem necessarily looks to what the police were doing and what motivated them to take the action they did. But it does not involve the speculative question of whether they later would have actually found the evidence by some legal means. Whether lawfully obtained (i.e., there is no question of additional illegality beyond the original error) evidence was tainted by earlier unlawful actions does not present a speculative question of what the officers might have done next.

23 In its findings, the trial court correctly focused on the facts of the investigation to determine that the derivative evidence was discovered independent of the original search warrant. 6 Police were aware of the uncommon ammunition and were attempting to ascertain its local sources. The investigation focused on all local ammunitions stores and all customers, not just the one source known to have sold to Mr. Hilton. The record reflected a thorough investigation rather than simply leaping from the evidence uncovered at the apartment to Schoonie's Rod Shop. The trial court correctly admitted the evidence under the independent source doctrine.

6 The court explicitly found Detective Bricker's testimony credible and determined that his efforts preexisting the search and independent of it would have led him to Schoonie's. We do not disturb credibility decisions. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

24 Accordingly, Ms. Schoonover's testimony and her records 7 were both properly admitted under the independent source doctrine. Additionally, Ms. Schoonover's testimony was too attenuated from the improper search warrant to be subject to the exclusionary rule. O'Bremski, 70 Wn.2d at 429-30. For both reasons, there was no error.

7 In light of our conclusion, we do not address the State's alternative argument that Mr. Hilton lacked standing to challenge Ms. Schoonover's decision to provide her records to the police. We likewise do not address the question of whether any error in this regard would have been harmless or not.

The Allegedly Tailored Alibi

[9] 25 Mr. Hilton alleges that the prosecutor engaged in misconduct by questioning him about his ability to change or tailor his alibi to meet the evidence from both the first trial and the current trial and then arguing the topic to the jury. We conclude that the prosecutor's actions were consistent with Martin and did not constitute error.

26 Martin presented the question whether article I, section 22 8 of the Washington Constitution permits a prosecutor to cross-examine a defendant in a manner that suggests the defendant's testimony was tailored to meet the evidence presented at trial. The United States Supreme Court had previously decided that the Sixth Amendment did not prohibit a prosecutor from arguing that the defendant's presence in the courtroom allowed him to tailor his testimony to meet the evidence and, hence, the defendant's testimony should not be believed. Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). Justice Ginsburg had dissented in Portuondo, arguing that while cross-examination of the defendant about his ability to tailor testimony would have been proper, a generic closing argument unrelated to the defendant's trial testimony was improper. Id. at 76-79.

8 The portions of this provision at issue here include: the "accused shall have the right to 'appear and defend in person, . . . to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, . . . to have a speedy public trial . . . and the right to appeal in all cases.'" Martin, 171 Wn.2d at 529 (quoting WASH. CONST. art. I, $ 22).

27 In Martin, the defendant had answered a question during direct examination by referring to testimony he had heard during trial. 171 Wn.2d at 524. He also answered a cross-examination question in the same manner. Id. The prosecutor then addressed the point in further cross-examination, asking the defendant if he had heard the trial testimony and also inquiring about his access to the police reports while the case was pending. Id. at 524-25. There is no indication in Martin whether the prosecutor discussed the issue during closing argument.

28 The Martin majority conducted the analysis required by State v. Gunwall 9 and concluded that the noted provisions of article I, section 22 did provide greater protection than the Sixth Amendment in this context. 171 Wn.2d at 528-33. The majority then turned to the question of how protective Washington's constitution was in this context. The majority concluded that a portion of Justice Ginsburg's Portuondo dissent was the appropriate standard for Washington--cross-examination on the ability to tailor would be permitted. Id. at 535-36. 10

9 106 Wn.2d 54, 720 P.2d 808 (1986).

10 Because the tailoring cross-examination was specific rather than general, the court declined to address the question of whether a generic tailoring argument unrelated to the testimony would be permitted. Id. at 536 n.8.

29 Application of Martin to this case requires some discussion of the record. At the first trial, and again in the second trial, the prosecution worked to disprove the alibi Mr. Hilton had provided during his interview with the police. Evidence was introduced that Mr. Hilton did not appear on the Winco store's video system; it showed everyone who entered or exited the building. Library records also showed that Mr. Hilton had returned Hard Time on March 19, not March 20. Library records showed that he next used the library on March 21, when he returned two books and checked out another book. Evidence also was introduced that the most recent gun show in Walla Walla had taken place 14 months before the killings. That testimony undercut Mr. Hilton's statement to the police that he had sold a .45 caliber Norinco at a show there six to eight months earlier.

30 When counsel called Mr. Hilton to the stand, the very first question asked was "you sat through this trial and heard the testimony, correct?" The response was "[y]es." RP at 3518. Mr. Hilton testified that he had gone to Albertson's, not Winco, for his groceries that night. He also testified that he must have returned paperback books, about which no records are kept, on March 20 instead of the hardback book that library records showed had been returned on the 19th. The noted testimony led to the following exchanges on cross-examination, none of which drew any objections:

Q . . . [Y]ou're aware that the police didn't get any kind of video surveillance from Albertsons, aren't you?

A I don't know if they did or not.

Q Well, you sat through one proceeding, didn't you?

A Uh-huh.

Q And you sat through this proceeding, didn't you?

A Yes, I did.

Q And according to your knowledge, there was never any video attempted to be gained from anywhere but Winco; is that right?

A That's what I heard.

RP at 3604-05.

31 With respect to the library records, the cross-examination included:

Q And you say you realized you were wrong about that after you talked to Detective Hansens; isn't that right?

A Quite a bit later actually, yes.

Q Quite a bit later, and there's been a prior proceeding, correct?

A Yes.

Q And this trial?

A Yes.

RP at 3608. The prosecutor later asked again:

Q You've had a chance to sit through one proceeding; is that correct?

A Yes.

Q And now this proceeding?

A Yes.

RP at 3609.

32 The parties dispute whether Martin is limited to cases where the defendant opens up the topic during direct examination. The Martin majority had noted the defendant's answer to a question had referenced "prior testimony" in the trial and stated: "In our judgment, this testimony opened the door to questions on cross-examination about whether he tailored his testimony to evidence presented by other witnesses." 171 Wn.2d at 536. The court again noted the defendant's reference to other testimony before stating:

In sum, we believe that in a case such as the instant, where the credibility of the defendant is key, it is fair to permit the prosecutor to ask questions that will assist the finder of fact in determining whether the defendant is honestly describing what happened.

We conclude, therefore, that the State did not violate article I, section 22 by posing questions during cross-examination that were designed to elicit answers indicating whether Martin tailored his testimony.

Id.

33 We need not decide if Mr. Hilton's narrow reading of Martin is warranted because even under his view, he certainly opened the door to cross-examination on tailoring. First, the initial question of direct examination squarely presented the issue. Second, as in Martin, his testimony about the day he returned Hard Time to the library admittedly changed in accordance with information he learned during the two trials. Third, his testimony varied from his initial statement to the police in three important aspects--what books he returned to the library on March 20, when he had sold a Norinco .45 caliber handgun at a Walla Walla gun show, and what grocery store he visited on the evening of the 20th. Any one of these pieces of testimony opened up the door; in combination, they kicked the door down.

34 We thus conclude that the prosecutor fairly cross-examined the defendant on these topics. The defendant's initial March 2002 alibi that he had been at the library and the Winco store during the time of the killings, and that he recently had disposed of his last .45 caliber gun in Walla Walla, had been discredited during the first trial. His new story, which also provided an alibi for the time of the killings, was properly tested by questioning about his knowledge of the inadequacies of the original story and his opportunity to correct them.

35 There was no error in cross-examination.

36 The prosecutor here went further than in Martin and also addressed in closing argument the defendant's ability to tailor his testimony. There was no objection to the following argument from the prosecutor:

He didn't show you any emotion. He didn't make eye contact. In fact, he avoided eye contact when he was testifying with you. The defendant was calculated in his answers. And the defendant was certainly rehearsed, and he's had since the murders, six years, in order to rehearse and calculate what he was gonna get up here and tell you.

. . . .

. . . He thinks he can outsmart me. And he thinks he can outsmart you. He's had six years to make this up. Six years to hear all the evidence, six years to get up there and weave a tale to you, and he's had the benefit of knowing all the evidence from a prior proceeding and this case.

RP at 3839-40.

[10-12] 37 The general rule is that a prosecutor can properly draw reasonable inferences from the evidence admitted at trial and argue those inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). The prosecutor can also argue that the evidence does not support the defendant's theory of the case. Russell, 125 Wn.2d at 87. The defendant must object to the prosecutor's allegedly improper argument to preserve a claim of error unless the argument was so "flagrant and ill intentioned that no curative instructions could have obviated the prejudice." State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). 11

11 In light of our conclusion, we do not address the State's argument that the issue was not preserved because the closing argument could not be "flagrant and ill intentioned" since it was permitted under existing law at the time it was made: Portuondo, 529 U.S. 61, the Court of Appeals' version of State v. Martin, 151 Wn. App. 98, 210 P.3d 345 (2009), and State v. Miller, 110 Wn. App. 283, 40 P.3d 692, review denied, 147 Wn.2d 1011 (2002) (both applying Portuondo).

[13] 38 As noted previously, the Martin majority did not address the issue, which had divided the court in Portuondo, of whether a generic tailoring argument would be proper. 171 Wn.2d at 536 n.8. This case does not truly present that issue, either, since the defendant was cross-examined about tailoring and the prosecutor's argument directly tied the credibility of defendant's testimony to his opportunity to prepare it. This was not a generic tailoring argument because it had a basis in the cross-examination. There was nothing improper about the argument because it was reasonably drawn from the testimony admitted at trial. Hoffman, 116 Wn.2d at 95.

39 It was proper to cross-examine the defendant about the changes in his story and his opportunities to prepare those changes. It was thus also proper to argue the issue to the jury. 116 Wn.2d at 95. The defendant's constitutional rights under article I, section 22 were not violated.

Third Party Perpetrator Evidence

40 Mr. Hilton strenuously argues that the trial court erred in prohibiting him from arguing that Lisa Ulrich murdered her parents. This argument fails for two reasons. First, he never sought to blame her for the killings and does not get to change his theory on appeal. Second, he never made the requisite showing to allow him to make the argument at trial.

[14] 41 A criminal defendant has a constitutional right to present evidence in his own defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004); State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). There is, however, no right to present irrelevant or inadmissible evidence. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).

[15] 42 Washington permits a criminal defendant to present evidence that another person committed the crime when he can establish "a train of facts or circumstances as tend clearly to point out some one besides the prisoner as the guilty party." 12 State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932) (quoting Greenfield v. People, 85 N.Y. 75, 89 (1881)); State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), cert. denied, 508 U.S. 953 (1993). The United States Supreme Court recently has approved this standard for admitting "third party guilt" evidence. Holmes v. South Carolina, 547 U.S. 319, 327, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). 13 When the State's case is entirely circumstantial, the Downs rule is relaxed to an extent to allow a reply in kind: the "defendant may neutralize or overcome such evidence by presenting sufficient evidence of the same character tending to identify some other person as the perpetrator of the crime." State v. Clark, 78 Wn. App. 471, 479, 898 P.2d 854 (citing Leonard v. Territory of Wash., 2 Wash. Terr. 381, 396, 7 P. 872 (1885)), review denied, 128 Wn.2d 1004 (1995). As the proponent of the evidence, the defendant bears the burden of establishing relevance and materiality. State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986).

12 Evidence of possible motive alone is insufficient to establish this nexus. State v. Kwan, 174 Wash. 528, 533, 25 P.2d 104 (1933); State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993), review denied, 123 Wn.2d 1031 (1994).

13 Holmes cited Thomas as following this rule. Id. at 327 n.*.

[16] 43 Mr. Hilton contends that Holmes permits him to argue that Lisa Ulrich was the murderer. The initial problem with this approach is that he never attempted to make that argument in the trial court. Instead, the whole defense argument on this topic was that he needed to cross-examine Ms. Ulrich to the extent he had in the prior trial in order to establish her bias and/or poke holes in the State's case by challenging her memory. He never claimed that he wanted to argue to the jury that she was the killer. Instead, Mr. Hilton's counsel argued that the evidence he sought to admit should not be characterized as third party perpetrator evidence. RP at 204.

44 Appellate courts will consider evidentiary challenges only on theories that were raised at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Boast, 87 Wn.2d 447, 451-52, 553 P.2d 1322 (1976). As explained in Guloy:

A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review.

104 Wn.2d at 422 (citation omitted).

45 Here, defense counsel at trial objected to the State's motion in limine only to the extent that it could be read as limiting the cross-examination of Lisa Ulrich. Both in writing and orally to the trial court, defense counsel disclaimed any interest in pursuing a third party suspect theory. There was no offer of proof setting forth sufficient evidence to put forth the theory. The most that can be said is that the defense wanted to point out that the case against their client was no stronger than a case against Lisa Ulrich would be. CP at 626-27. That is not the same as arguing that she actually committed the murder.

46 The defense did not want to actually blame Ms. Ulrich for her parents' murders at trial. The defense theory cannot now be amended to argue what it did not desire to argue before. The challenge to the trial court's in limine ruling on third party suspects was waived.

[17] 47 Even if it had not been waived, the argument is without merit. The defense did not present, or even offer to present, sufficient evidence to blame Ms. Ulrich for the killings. As noted, third party perpetrator evidence may be presented when there is "'a train of facts or circumstances as tend clearly to point out some one besides the prisoner as the guilty party.'" Downs, 168 Wash. at 667 (quoting Greenfield, 85 N.Y. at 89). Even when dealing with a circumstantial evidence case, the defendant can respond in kind "by presenting sufficient evidence of the same character tending to identify some other person as the perpetrator of the crime." Clark, 78 Wn. App. at 479 (emphasis added). Even when using circumstantial evidence, Mr. Hilton still must present sufficient evidence tending to identify Lisa Ulrich as the killer. The defense did not make that showing here.

48 Mr. Hilton argues that Lisa Ulrich had motive (inheritance) and opportunity (she lived close by), but the facts did not suggest that she could have committed the crimes. There was no showing that she had access to a .45 caliber handgun or A-Merc ammunition, let alone that she even knew how to use such a weapon, especially with the skill shown by the killer. There was no evidence that she returned to her parents' home that night. Although Mr. Hilton takes issue with the strength of Ms. Ulrich's alibi, 14 his disputes do not affirmatively show that she could have committed the crimes. His circumstantial evidence was insufficient to allow him to argue that she killed her parents. 15

14 Lisa Ulrich was in the presence of her boyfriend and children during the period when her parents were murdered.

15 In contrast, Clark is a case where sufficient circumstantial evidence was presented to suggest that the other suspect could have committed the crime (arson). The other suspect had threatened the victim, had a strong revenge motive, his car was seen near the crime scene, and he told others that the defendant had not committed the crime. 78 Wn. App. at 474-75, 479-80.

49 Nothing in Holmes changes the law of Washington, which the Holmes opinion cited favorably. 547 U.S. at 327 n.*. Instead, Holmes addressed a situation where South Carolina state law allowed a trial judge to exclude third party perpetrator evidence when the State's case was forensically strong. Id. at 323. The United States Supreme Court concluded that rule "radically changed and extended" the common law rule and diminished the defendant's right to present his defense. Id. at 328. The result was to deny the defendant a fair trial. Id. at 331.

50 This case is not Holmes. The trial court properly allowed the defense wide scope to cross-examine Ms. Ulrich; there was little the defense was precluded from doing. Mr. Hilton was allowed to develop her alleged bias against him, to explore inconsistent testimony for memory lapses, and to inquire about supposedly suspicious behavior that evening. Mr. Hilton's counsel accomplished what he told the court prior to trial he wanted to accomplish.

51 It is highly unlikely that trial counsel would have pursued an argument that Ms. Ulrich killed her parents because the case against her was so weak that it would have made the defense look desperate. The alleged motive, an inheritance, was weak since that motive had existed most of her adult life; there was no showing that her financial situation had recently deteriorated. She also would have no reason to steal the answering machine or the receipt book. She would had to have then framed Mr. Hilton without knowing what kind of alibi he might have, and she would have had to commit the crimes with the type of weapon Mr. Hilton had once owned and with rare ammunition that he was one of the few people in the region to use. She also would have needed to be fortunate enough to do all of this during the time period when Mr. Hilton happened to telephone her parents' house. The theory that Lisa Ulrich killed her parents was completely unsupported by the facts. Experienced trial counsel understandably had no interest in pursuing the claim, which is likely why they never sought to show the trial court that they had the evidence to do so. Instead, counsel aptly, albeit unsuccessfully, chose instead to try to persuade the jury that Lisa Ulrich was biased and not credible.

52 Mr. Hilton waived the argument that Lisa Ulrich murdered her parents. He also failed to present sufficient evidence to allow him to present the theory to the jury, even if he had wanted to do so. For both reasons, the argument is without merit.

53 Affirmed.

54 A majority of the panel having determined that only the forgoing 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.

55 Mr. Hilton also presents several other issues, some of which are related to issues previously addressed. We will begin with those related issues.

Prosecutor's Closing Argument and Other Alleged Errors

56 Mr. Hilton challenges a portion of the prosecutor's rebuttal argument, contending that it was an improper "liar" argument. This issue was not preserved. He also contends the prosecutor commented on his right to remain silent during cross-examination. He fails to establish that claim. He also notes an error in the prosecutor's opening PowerPoint presentation, but concedes that the error was not significant.

57 Without objection, the prosecutor argued:

How would somebody know that [Mr. Hilton] was gonna go on this trail of deceit, and . . . let's just talk about that briefly. . . . If you want to believe the defendant, you'd have to disbelieve the following people:

Chris Grow, who said, "The defendant told me that he likes a .45 because it has maximum stopping power." You'd have to disbelieve Sergeant Taylor who said, "No, he said Winco. I'm sure of that." You'd have to disbelieve Sergeant Ruegsegger of the Richland Police Department who said, "No, Winco sticks in my mind. I don't like Winco. He said Winco."

You'd have to disbelieve Ms. Norris, the next-door neighbor who said . . . "Hansens was pounding on that door." You'd have to disbelieve . . . Detective Hansens who said, "I pounded on that door, and then five minutes later Ms. Norris said the defendant scurries out of his residence."

You'd have to disbelieve Laura Hilton concerning his aversion to moving. You'd have to disbelieve her about his hiding guns. You'd have to disbelieve the librarian about the fact that she didn't see him. You'd have to disbelieve Bennett Clark who said, "I went to this yard sale. I pointed it out. It was 1310. I saw people there. I saw Joel Tremmel there. I saw Mr. Armstrong there. It was 1310. That's where it was."

You'd have to disbelieve him. You'd have to disbelieve Joe Tremmel. He said "You know, one guy I saw there was Bennett Clark." And Mr. Tremmel says, "That's the guy right over there. He's the one that sold me this gun. . . ."

. . . [Y]ou're the triers of fact. At some point, though, you have to think, "Okay, do we want to really disbelieve all of these people in order to believe the defendant?

RP at 3890-3892.

58 Mr. Hilton argues that the argument was flagrant and ill intentioned. He primarily relies upon the decision in State v. Riley, 69 Wn. App. 349, 848 P.2d 1288 (1993). Riley is both easily distinguishable and ultimately unhelpful to his argument.

59 It is improper to argue that to believe one witness a jury must find other witnesses are lying. State v. Barrow, 60 Wn. App. 869, 874-876, 809 P.2d 209, review denied, 118 Wn.2d 1007 (1991). A witness can be mistaken without lying. Id. at 875. Riley involved a closing argument in which the prosecutor told jurors that in order to believe the defendant, the jurors would have to find that the officers and other witnesses were not telling the truth. 69 Wn. App. at 353 n.5. Consistent with Barrow, the Riley court accepted the State's concession that the prosecutor had erred in that case as well. Id. Nonetheless, the court concluded that the State's unchallenged argument, while error, was not so egregious that it was beyond cure following a timely objection. Id. at 354.

60 Unlike both Riley and Barrow, the prosecutor here did not argue that in order to believe Mr. Hilton, the jury would have to conclude that the other witnesses were liars. There is a qualitative difference between "disbelieving" a witness and concluding that the witness was lying. We need not decide if "disbelieving" 16 should be equated with the purposeful misconduct associated with "lying," because Riley already decided that particular argument is not so egregious that the need to object is obviated. Id. Thus, the claim of error is not preserved. Belgarde, 110 Wn.2d at 507.

16 It would be more accurate, and certainly less challengeable, to use the word "contradict" when comparing testimony that is in conflict and using that conflict to urge the jury to decide which view of the facts should be believed.

61 Mr. Hilton also argues that the prosecutor commented on his right to remain silent when he asked the question of Mr. Hilton: "The first time in any official capacity you mentioned that has been here in court; isn't that right?" RP at 3690.

62 When a defendant testifies at trial, any prearrest silence can be used to impeach his testimony, but it cannot be used as substantive evidence. State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1 (2008). A statement will only be considered a comment on the right to remain silent if it was intended to be a comment on the right; otherwise, mention of silence constitutes a "'mere reference'" that is not a violation unless prejudice is shown. Id. at 216 (citing State v. Crane, 116 Wn.2d 315, 804 P.2d 10, cert denied, 501 U.S. 1237 (1991), and State v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996)). A subtle and brief remark does not normally amount to a comment on the right to remain silent. Burke, 163 Wn.2d at 216; Crane, 116 Wn.2d at 331.

63 It appears that the prosecutor was attempting to get the defendant to admit that his testimony on this particular point had not been revealed earlier. This would be proper impeachment. Burke, 163 Wn.2d at 217. However, again we need not actually decide that point because the brief statement referring to "official capacity" was not a comment on the right to remain silent. It is doubtful that it can even be construed as a mere reference to that right. Even if it could be so construed, there was no prejudice. There had already been substantial mention of prior proceedings, consistent with the agreement of the parties to use that nomenclature. 17 The jury would not likely consider "official capacity" to be anything other than the prior proceedings. Again, there was no error.

17 Defense counsel alone had brought the topic up a dozen times with other witnesses before the defendant had even testified. RP at 1098-1099, 1165-1166, 1329, 1361, 1534, 1546, 1556, 1582, 1766-1767, 3190, and 3242.

64 Mr. Hilton also argues that the prosecutor's opening PowerPoint presentation contained a slide in violation of the court's pretrial ruling in limine. The prosecutor apologized for including the slide, stating that he inadvertently failed to remove it. 18 The court sustained defense counsel's objection, but denied a mistrial since the slide was only momentarily displayed and the jury had been instructed that counsel's arguments were not evidence.

18 The slide, captioned "Formal Interview, March 26," also stated: "Admits mom asked if he killed Ulriches. Admits mom's question is unusual." RP at 979.

65 When inadmissible testimony is put before the jury, the trial court should declare a mistrial if the irregularity, in light of all of the evidence in the trial, so tainted the proceedings that the defendant was deprived of a fair trial. State v. Weber, 99 Wn.2d 158, 164, 659 P.2d 1102 (1983). A ruling on a motion for a mistrial is reviewed for abuse of discretion. Id. at 166.

66 The trial court concluded there was no prejudice from the brief and inadvertent showing of the slide. We agree with that assessment. Mr. Hilton likewise appears to agree since he argues that the slide itself might not justify a mistrial, but is one of several errors that cumulatively did prejudice him. The trial court had tenable grounds for rejecting the motion.

67 The alleged error in rebuttal argument was not so egregious that it can be challenged initially on appeal. The alleged comment on the right to remain silent has not been established. The error in the PowerPoint was not prejudicial. None of the arguments concerning the prosecutor's behavior present a basis for relief.

Laura Hilton

68 Mr. Hilton challenges the testimony of his former wife, Laura Hilton, in two areas. First, he argues that a list of weapons he owned that she prepared in 1997 should have been excluded under this court's search warrant ruling. He next argues that various portions of her testimony should have been excluded for evidentiary reasons.

69 Weapons List. Ms. Hilton testified by deposition. Attached to the deposition was a list of guns and weapons supplies that Mr. Hilton owned; it went to the jury as an exhibit. The list was an inventory prepared by Ms. Hilton as part of the marriage dissolution proceedings in order to value property for their settlement. A detective obtained the list from her on April 1, 2002. The document lists ten guns, including two Norinco .45 caliber weapons. Many items on the list were later seized under the search warrant for Mr. Hilton's duplex.

70 Mr. Hilton sought to exclude the list on two grounds--it was irrelevant because it was prepared long before the murders and it listed items that were suppressed as a result of this court's ruling in the first appeal. The trial court concluded the information was relevant and obtained from an independent source.

71 A trial court's decision to admit or exclude evidence at trial is reviewed for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

72 The list was clearly relevant evidence. Mr. Hilton's longstanding connection to firearms, and particularly to two .45 caliber guns, was relevant information in a case where the killer had shown skill in the use of such weapons. There were tenable grounds to admit the weapons list. The information was relevant and the trial court did not err by admitting it.

73 Mr. Hilton's remaining objection to this evidence is that the weapons themselves were suppressed as a result of the search warrant ruling, so the list of them also should have been suppressed as the fruit of the unlawful search. This argument is novel. It is unclear how a record created five years before an improper search and not discovered during the search is itself a fruit of the search. Mr. Hilton's argument seems to be that because the weapons were suppressed, any mention of them, no matter what the source, must also be excluded. No relevant authority is cited for such a broad proposition. It also is inconsistent with the fact that even suppressed physical evidence may be used to impeach a criminal defendant's testimony. United States v. Havens, 446 U.S. 620, 64 L. Ed. 2d 559, 100 S. Ct. 1912 (1980); Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954).

74 The list was not the fruit of the unlawful search, nor was it derived from that search. There was no basis for suppressing the list due to the defects in the search warrant. The trial court correctly determined that it came from an independent source. There was no error in admitting it at trial.

75 Deposition Statements. Mr. Hilton also takes issue with three of the statements his ex-wife made during the video deposition that was played for the jury. Each statement will be addressed in turn. Prior to playing the videotape, the court instructed the jury that it was "about to hear evidence of prior acts of the defendant. You should consider that evidence only for the purpose of motive." RP at 2970.

76 The first challenged testimony concerns Ms. Hilton's statement that the gun list may not have been complete because he had more guns than she knew and hid them all over. He challenged this statement on the basis that it was unresponsive. CP at 408. On appeal he characterizes the evidence as irrelevant. We disagree. Whether the inventory was a true accounting of Mr. Hilton's weapons was a relevant consideration for the jury that was attempting to ascertain whether he had murdered the Ulrichs with a .45 caliber handgun. The court had tenable grounds for admitting the evidence.

77 The second challenged statement involves an alleged comment by Mr. Hilton that he knew someone who "does away with people" and Ms. Hilton's response that she took the comment seriously and became physically ill. The trial court permitted Mr. Hilton's statement, but excluded Ms. Hilton's response. Despite the exclusion, her response appears on the transcription of the deposition. However, we have reviewed the videotape and the response is not part of the edited video presented to the jury. 19 Because the transcript was not admitted, the jury never heard Ms. Hilton's response and there was no error.

19 See DVD (digital video disc) Exhibit 477 at 8:20 to 9:30 minutes.

78 The decision to admit Mr. Hilton's statement is certainly debatable given that it was made five years before the killing. The trial court found the statement relevant to show both the defendant's mindset when dealing with conflict and to show his "knowledge of the ability to do away with people." CP at 31. These are tenable grounds for finding relevance. The court weighed the prejudicial value of this testimony before admitting it. The court also gave the jury a limiting instruction for its use of the deposition. In light of these facts, and the fact that similar testimony 20 was admitted through a different witness, we are convinced that there was no prejudicial error.

20 Lisa Markoff testified that when she asked Mr. Hilton if he killed the Ulrichs, he responded "anyone is capable of murder." RP at 2339-2340.

79 Mr. Hilton also challenges his ex-wife's statement that their children were hysterical upon learning that the Ulrichs had been murdered. We agree with Mr. Hilton that the statement was not relevant. However, he never objected to the statement at trial and any challenge now is waived. Guloy, 104 Wn.2d at 422. Moreover, the statement does not prejudice Mr. Hilton in any way.

80 The challenges to Ms. Hilton's deposition testimony are without merit. There was no prejudicial error.

Library Records

81 Mr. Hilton also reprises an issue presented in his first appeal which this court did not address in light of its ruling. He contends that the Special Inquiry Judge (SIJ) procedure used to acquire his library records was improper and the library records should have been suppressed. Once again, we disagree.

82 The prosecutor had used the SIJ process to investigate various aspects of the murder case, but the only one at issue in this proceeding involves the defendant's library records. Judge Swisher had telephonically authorized issuance of a subpoena for "[a]ny and all documents and/or records that would show any activities or transactions between Kevin Lee Hilton and the Richland Library between March 18, 2002 and March 25, 2002." CP at 492. The library responded by giving the police the following record: "Returned a book titled 'Hard Time' on March 19, 2002"; returned both "Richter 10" and "Chance" on March 21, 2002; checked out "P is for Peril" on March 21, 2002. CP at 494. The police later obtained those books from the library.

83 The trial court denied the motion to suppress the library records for the second trial, but did exclude the contents of Hard Time. At trial, the State used the books solely to establish that all were hardback copies rather than paperback books. The checkout record information was presented through the testimony of the librarian.

84 Mr. Hilton argues that the procedure was irregular under the SIJ statutes, contending that no petition was filed and no proceedings were initiated under RCW 10.27.170, and no judge had been designated as SIJ pursuant to RCW 10.27.050. The State contends that Mr. Hilton has no standing to challenge the library's decision to turn over its records to the police.

85 While perhaps unusual, the process followed here does comport with the plain language of the statute. 21 RCW 10.27.050 provides that in every county a judge "designated by a majority of the judges shall be available to serve as a special inquiry judge." At the first trial, Judge VanderSchoor told the parties that the five judges had agreed that each and every one of them could serve as a SIJ. CP at 539. This seems proper; nothing in the statute limits a county to a sole SIJ.

21 In other reported cases, it appears that the prosecutor had filed a petition to invoke a SIJ proceeding and, after the petitions were granted, issued subpoenas for witnesses to appear before the court to testify. State v. Neslund, 103 Wn.2d 79, 80-81, 690 P.2d 1153 (1984); In re Proceedings Before Special Inquiry Judge, 78 Wn. App. 13, 14, 899 P.2d 800 (1995).

86 RCW 10.27.170 indicates that the prosecuting attorney "may petition" the SIJ "for an order directed to such persons commanding them to appear at a designated time and place in said county and to then and there answer such questions . . . or provide evidence as directed by the special inquiry judge." Nothing in the statute specifies a particular form a petition must take; likewise, there is no express statutory directive that the court formally open a new file, assign a cause number, or follow some other specific procedure to address a petition. Finally, although RCW 10.27.140(2) contemplates that the prosecutor may issue subpoenas for SIJ proceedings, the plain language of section .170 quoted above appears to permit the judge to do so as well. At a minimum, the statute does not prohibit a SIJ from issuing subpoenas.

87 Mr. Hilton's remaining arguments are that the records were private under both CONST. art. I, $ 7 and the Public Records Act (PRA), chapter 42.56 RCW, 22 and protected by the First Amendment and CONST. art. I, $ 5. In particular, he cites to RCW 42.56.310, which provides that a library record that "discloses or could be used to disclose the identity of a library user is exempt from disclosure under this chapter." The emphasized language makes short work of Mr. Hilton's PRA argument. The PRA provides an exemption from disclosure pursuant to a public records request. It does not create a privilege, let alone a privilege exempt from judicial process. See RCW 42.56.050; Brown v. Johnston, 328 N.W.2d 510 (Iowa), cert. denied, 463 U.S. 1208 (1983). Similarly, CONST. art. I, $ 7 prohibits intrusion into "private affairs" absent "authority of law." A subpoena is "authority of law." Gunwall, 106 Wn.2d at 69. Mr. Hilton's argument is without merit.

22 The Act was codified in chapter 42.17 RCW at the time of events in this case. For convenience we will refer to the current codification.

88 The free speech argument fares no better. Mr. Hilton appears to predicate his claim at least in part on the theory that the SIJ proceedings were invalid, an argument we have already rejected. His sole authority is a Colorado case, Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002). That authority is not apropos. That case involved an injunction against a search warrant, not a valid subpoena. The court ultimately concluded that the government had not established a compelling interest justifying the search for records that were recognized as private in Colorado. Id. at 1061. There, also, the bookstore resisted efforts to provide information about its customer. Here, the library provided the records within hours of the subpoena. Mr. Hilton has presented no relevant authority suggesting that this subpoena was invalid for failing to address the particular concerns associated with free speech rights.

89 Even if Washington followed the same compelling interest test, it would be met in this case. A double murder was being investigated. Mr. Hilton had voluntarily told police that he had been at the library that evening and indicated which book he had returned. He had waived any claim of privacy related to Hard Time or his checkout and return records. The compelling State interest in confirming or dispelling his alibi outweighed the privacy interest he had already waived. 23

23 Moreover, the librarian's testimony concerning when Hard Time was returned to the library was the result of an independent source--the defendant's own admissions to the police--not the subpoena process. Thus, even if the subpoena had been invalid, it would not affect the testimony against the defendant.

90 The SIJ subpoena was properly issued. It did not infringe upon any rights belonging to Mr. Hilton. Accordingly, the trial court correctly denied the motion to suppress the evidence.

Mr. Hilton's Financial Condition

91 Mr. Hilton next argues that the trial court abused its discretion in admitting evidence of his dire financial situation at the time of the killings. This information was relevant to establish his motive for these crimes and was admitted with proper limiting instructions. There was no abuse of the court's discretion.

92 Prior to trial, the defense moved under ER 404(b) to exclude evidence and argument about Mr. Hilton's joblessness, small bank account, and back child support, arguing the information was unduly prejudicial under ER 401-403 and 404(b). The court ruled that the relevance of the back rent owed and Mr. Hilton's overall financial condition outweighed any prejudicial effect and were therefore admissible for purposes of showing motive only. The parties stipulated that the evidence could go back only two years prior to the murders. The court gave the jury a written limiting instruction on the use of the evidence. CP at 42.

93 An individual's prior crimes, wrongs, or acts are inadmissible to determine the individual's character or propensities, but they may be admissible under ER 404(b) to show motive. ER 404(b) is read in light of ER 401, ER 402, and ER 403. State v. Smith, 106 Wn.2d 772, 775, 725 P.2d 951 (1986). ER 402 prohibits the admission of evidence that is not relevant. ER 401 defines "relevant evidence" as "evidence having 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 403 requires the exclusion of evidence, even if relevant, if the probative value is substantially outweighed by the danger of unfair prejudice. State v. Wilson, 144 Wn. App. 166, 176, 181 P.3d 887 (2008). We will not reverse a trial court's evidentiary rulings absent an abuse of discretion. See State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

94 Motive is the impulse that tempts or induces a mind to commit a crime. Powell, 126 Wn.2d at 259-260 (quoting State v. Tharp, 96 Wn.2d 591, 597, 637 P.2d 961 (1981)). Evidence of poverty is generally not admissible to show motive. State v. Kennard, 101 Wn. App. 533, 541-542, 6 P.3d 38 (citing United States v. Mitchell, 172 F.3d 1104, 1108 (9th Cir. 1999) (trial court erred in admitting evidence concerning defendant's financial status because the evidence did not show more than the mere fact that the defendant was poor)), review denied, 142 Wn.2d 1011 (2000).

95 Evidence regarding a defendant's financial state is admissible to establish motive if accompanied by something more than poor finances. For example, in State v. Matthews, 75 Wn. App. 278, 286-287, 877 P.2d 252 (1994), review denied, 125 Wn.2d 1022 (1995), evidence of recent bankruptcy and financial condition was presented as foundation for other probative evidence that defendant's lifestyle exceeded his income, which could provide a motive for a robbery that ended in murder. Since the evidence established more than the mere fact that the defendant was poor, it was admissible. Id. at 287. 24 In Kennard, the court relied on Matthews and ruled that evidence of the defendant's bankruptcy was properly admitted when the timing of bank robberies in relation to events in the bankruptcy proceeding showed the defendant's family was living beyond their means. Kennard, 101 Wn. App. at 542-543.

24 The Matthews court found its case comparable to other cases where evidence beyond mere financial straits provided motive. See State v. Armstrong, 170 Mont. 256, 552 P.2d 616 (1976) (court admitted evidence showing that defendant had recently been fired, had told others he had no money, had written checks with insufficient funds, and had gambled on the night of the robbery and murder; evidence taken as a whole provided inference for motive to commit robbery and murder); Moss v. People, 92 Colo. 88, 93, 18 P.2d 316 (1932) (testimony that defendant gambled was admissible to show need for money and that he may have murdered the victim in order to rob her since he was aware that "she kept a fairly large sum of money at her house"); Gross v. State, 235 Md. 429, 445, 201 A.2d 808, 817 (1964) (testimony that defendant was looking for men with money was admissible in prosecution for murder, as part of a chain of evidence which tended to establish that defendant was "money conscious" and might resort to robbery to acquire things of value; state argued that defendant intended to kill then rob the victim).

96 Mr. Hilton relies heavily on Mitchell to contrast his case with Matthews and Kennard. There the court admitted evidence that the defendant was poor to prove the defendant's motive to commit bank robbery. In reversing the conviction, the court stated:

Poverty as proof of motive has in many cases little tendency to make theft more probable. Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.

Mitchell, 172 F.3d at 1108-1109. The Mitchell court held that evidence of poverty or poor financial condition is inadmissible to prove motive where it is offered to show "the mere fact that the defendant is poor." Id. at 1109 (quoting United States v. Jackson, 882 F.2d 1444, 1449 (9th Cir. 1989)). The court stated that to be admissible, the poverty evidence must be accompanied by something more, such as an "unexplained, abrupt change in circumstances." Id. Each case must be determined on its own facts. Id. at 1108. For instance, evidence that a man was being financially "squeezed" justified the use of financial evidence because his condition went beyond mere poverty. Id. at 1109 (citing United States v. Feldman, 788 F.2d 544 (9th Cir. 1986)).

97 Mitchell is not overall helpful to Mr. Hilton. He was still responsible for the rent after the Ulrichs were killed and in that sense did not profit from their deaths. The State's evidence showed his poverty due to his having virtually no money, his owing back rent, back child support and having significant credit card debt with no job and no immediate job prospects. But the State's evidence also showed he was averse to moving and faced impending eviction from his residence of nearly seven years. As in Feldman, Mr. Hilton was being "squeezed."

98 To avoid the consequences of the three-day notice to pay-or-quit, he drafted a promissory note and purported agreement with the Ulrichs that would, in essence, let him continue to live there for another six months without cash outlay. The Ulrichs' daughters knew their parents' rental practices and said they would never have allowed Mr. Hilton's proposed arrangement. This testimony finds support from the receipt in Mr. Ulrich's hand indicating they were expecting Mr. Hilton to come to their house and pay his rent in full, but he showed up and killed them instead. From this evidence the jury could reasonably infer the mounting financial pressure induced Mr. Hilton's motive for murder and he contrived an agreement so he would not have to move for at least six more months.

99 Thus, unlike in Mitchell, the poverty evidence was clearly accompanied by "something more" in Mr. Hilton's case. The court's ruling comports with Matthews and Kennard and was not an abuse of discretion.

100 Matthews also stressed that the State's presentation of this evidence must be sufficiently limited so that any stigma of poverty was not a primary focus for the jury. Matthews, 75 Wn. App. at 286. Here, the trial court emphasized this concept in its oral ruling when it said, "I caution the State in closing argument to be careful about crossing a line and flaunting his impoverishment. . . . [Y]ou can't paint him to be a penniless bum. It's not allowed." RP at 313-314.

101 Mr. Hilton argues that the State violated the court's ruling in closing argument. The State's closing argument pointed out Mr. Hilton's low income, joblessness, lack of money, and various debts, including delinquent child support making his situation so bad that his bank accounts were garnished. The prosecutor also alluded to Mr. Hilton's own testimony that he prioritized other bills over child support. The prosecutor then referred to Mr. Hilton's priorities being mixed up when child support wasn't as important as other things. 25 Taken in full context, any reference to character was oblique at most.

25 The court overruled a defense objection that the prosecutor was making a character evidence argument. Mr. Hilton does not challenge that ruling on appeal.

102 The thrust of the prosecutor's motive argument, consistent with what is required under Matthews and Mitchell, was that Mr. Hilton's poor financial condition provided the foundation for additional evidence of motive to kill. He failed to pay his rent in full as promised to Josephine Ulrich--first by February 27 and then by March 7. He was averse to moving and faced impending eviction. The mounting financial pressure and the prospect of his losing his home when he had an aversion to moving made him so desperate and angry that he murdered the Ulrichs. The argument clearly did not focus on Mr. Hilton's character as he now alleges.

103 We presume the jury followed the court's limiting instruction. State v. Yates, 161 Wn.2d 714, 763, 168 P.3d 359 (2007), cert. denied, 554 U.S. 922 (2008). In light of the highly probative nature of the evidence and the court's care in circumscribing its use, we cannot say that there was an abuse of the trial court's discretion. The court did not err in permitting evidence of the defendant's dire financial situation and the pending eviction.

Right to Bear Arms

104 Mr. Hilton next argues that his constitutional right to bear arms was violated by admission of evidence of his gun ownership, gun club membership, and shooting competition experience. He sought pretrial to exclude that information on both constitutional and ER 403 grounds. Once again, we conclude that the trial court did not abuse its discretion.

105 Evidence was admitted, primarily through the deposition of Laura Hilton, about Mr. Hilton's gun ownership and the uncertainty about how many weapons he owned. There also was evidence that he had been an active competition shooter in years past; that activity had included shooting at human silhouettes.

106 Mr. Hilton argues that the evidence should have been excluded as unduly prejudicial under ER 403. That argument is founded on the dubious proposition that gun use and/or ownership is generally considered a prejudicial activity. Even if prejudicial, however, relevant evidence is still admitted unless the prejudicial impact substantially outweighs the prejudicial impact of the evidence. ER 403; Wilson, 144 Wn. App. at 176. Mr. Hilton has not made that showing here. Information concerning gun ownership and prowess may be somewhat prejudicial in some regions, but we will not infer that substantial prejudice attaches to a constitutionally protected activity. The information was also very probative. The killer was proficient with a .45 caliber handgun. Evidence that Mr. Hilton owned such weapons and was an experienced marksman certainly was probative information in identifying the killer of the Ulrichs. Coupling that information with the highly probative evidence that Mr. Hilton had owned a supply of the comparatively rare ammunition used to kill the victims made the entire evidence very relevant. The alleged prejudicial nature of the evidence did not substantially outweigh its high probative value. The trial court correctly weighed the balance and did not abuse its discretion by denying the motion to exclude the evidence.

107 Mr. Hilton's remaining argument is that the evidence infringed on his right to bear arms in violation of both the Second Amendment and article I, section 24 of the Washington Constitution. He relies nearly exclusively on an easily distinguishable case, State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984). There the prosecution had admitted evidence in the penalty phase of a capital case that the defendant owned four different guns. Id. at 703. The court reversed the death penalty on the basis that it was improper to draw negative inferences from the exercise of a constitutional right. Id. at 705. In particular, the court's plurality wrote that the State could not "use the mere fact of possession against him in a criminal trial unrelated to their use." Id. at 707 (emphasis added). Mr. Hilton's case involved more than mere possession of weapons and the crime was directly related to their use. His case is not Rupe.

108 The governing authority is Yates, 161 Wn.2d 714, 168 P.3d 359. There the defendant in a murder prosecution challenged admission of evidence that he had been a target shooter and had taught his daughters how to use a .22 caliber handgun. Id. at 775. The court made quick work of the defendant's constitutional challenge:

The argument is meritless. As stated in State v. Hancock, 109 Wn.2d 760, 767-68, 748 P.2d 611 (1988), "[w]here a defendant's ownership of a gun is relevant to an issue at stake in the trial, we recognize no special rule that would prevent that evidence from being admitted."

Id. Finding that the evidence was relevant, the court rejected the argument.

109 The same result follows here. As detailed several times, the evidence of the defendant's gun ownership was relevant and highly probative. The prosecutor did not argue that Mr. Hilton was a bad person because he owned firearms. There was no infringement of the right to bear arms.

110 This issue, too, is without merit.

Eviction Notice

111 The final issue involves the court's construction of the three-day pay-or-quit notice under the residential landlord tenant act. 26 This is a nonissue that did not harm the defendant's case in the least.

26 Mr. Hilton also briefed an issue concerning appellate counsel's access to sealed "discovery" records. Our Commissioner subsequently granted counsel's motion to access those records. No issue remains and, accordingly, we do not address that topic.

112 During direct examination, Mr. Hilton testified that he had not been served with notice to vacate the premises. On cross-examination, the prosecutor asked Mr. Hilton if March 20th was not the final day of the three-day notice period. Mr. Hilton disagreed. On redirect examination, counsel asked whether the notice even specified three business days. Mr. Hilton responded, "It just says within three after service upon you." RP at 3672. The court then sua sponte called a sidebar and stated:

Among the many hats I used to wear, I was designated attorney for the Lewiston-Clarkston Valley Rental Association. Be careful not to misrepresent Washington State law, which says that weekends and holidays are excluded from the three-day calculation, and that's all I wanted you to be careful of.

RP at 3672. Defense counsel responded, "And I appreciate that, Judge. I wasn't going into interpretation." Id.

113 On recross, the prosecutor again asked: "Mr. Hilton, you're aware that the three-day pay or quit notice excludes weekends and holidays, aren't you?" RP at 3696-3697. Mr. Hilton responded, "No, I thought it included them." RP at 3697. In closing argument, the prosecutor stated the Ulrichs were killed on the third business day after the March 15 pay-or-quit notice. The argument was in the context that the three-day notice contributed to motive.

114 Mr. Hilton now argues that the trial court incorrectly construed the statute. Just prior to the second trial in January 2008, the Supreme Court held in Christensen v. Ellsworth, 162 Wn.2d 365, 173 P.3d 228 (2007), overturning a contrary ruling from this court, that the phrase "three days" in the pay-or-quit statute, RCW 59.12.030(3), means three calendar days and not three business days. Prior to that ruling, the prevailing view was that the statute referred to three business days. Christensen, 162 Wn.2d at 375 (discussing Canterwood Place LP v. Thande, 106 Wn. App. 844, 25 P.3d 495 (2001)).

115 Mr. Hilton claims that the trial court's comment prejudiced him. We do not discern how there was any prejudice. Defense counsel eschewed any interest in interpreting the statute. The defendant denied receiving the notice and testified to his own belief that the notice required him to pay or vacate within three calendar days. The prosecutor's view of the issue (three business days) actually favored the defendant because he otherwise was already in violation of the notice on the 20th instead of being just about in violation. The jury received no instruction on the topic, and the court's remarks to counsel likewise were not conveyed to the jury. There was no objection to the prosecutor's brief mention of the issue in his summation to the jury. Most importantly of all, Mr. Hilton denied ever receiving the notice.

116 The importance of the notice evidence was whether or not Mr. Hilton received it. The legal interpretation was not an issue put before the jury. There simply was no prejudice from the misstatement of the law at sidebar.

117 As with the previous arguments, there was no reversible error. The convictions for first degree murder with aggravating circumstances are affirmed.

118 Affirmed.

BROWN and SIDDOWAY, JJ., concur.