|
PUBLISHED IN PART. DO NOT CITE UNPUBLISHED PORTION. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
39448-1 |
| Title of Case: |
Personal Restraint Petition Of: Nicholas Daniel Hacheney |
| File Date: |
02/01/2012 |
SOURCE OF APPEAL
----------------
| Date first document (petition, etc) was filed in the Court of Appeals: 06/22/2009 |
JUDGES
------
| Authored by | Marywave Van Deren |
| Concurring: | Joel Penoyar |
| Jill M Johanson |
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s) |
| | Jeffrey Erwin Ellis |
| | Oregon Capital Resource Center |
| | 621 Sw Morrison St Ste 1025 |
| | Portland, OR, 97205-3813 |
Counsel for Respondent(s) |
| | Randall Avery Sutton |
| | Kitsap Co Prosecutor's Office |
| | 614 Division St |
| | Port Orchard, WA, 98366-4614 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re Personal Restraint Petition of No. 39448-1-II
NICHOLAS DANIEL HACHENEY,
Petitioner.
PART PUBLISHED OPINION
Van Deren, J. -- A jury convicted Nicholas Daniel Hacheney of first degree premeditated
murder. In this personal restraint petition (PRP), Hacheney first argues that the trial court
violated his Sixth Amendment right to confront witnesses when it admitted a toxicology
laboratory report from the Washington State Patrol (WSP) Crime Laboratory and allowed
testimony regarding the report without the forensic analyst testifying at trial and being subject to
cross-examination. He also asserts that newly discovered evidence of problems at the WSP Crime
Laboratory requires vacation of his conviction.
Hacheney also argues that the trial court (1) violated his confrontation clause1 rights when
it admitted the videotaped depositions of three witnesses at trial and violated his constitutional
right to a public trial2 when it excluded his father from these witnesses' depositions, (2)
improperly commented on the evidence by including the phrase "consciousness of guilt" in its ER
404(b) limiting instruction, and (3) violated his due process rights3 by giving the jury the limiting
1 U.S. Const. amend. VI.
2 U.S. Const. amend. VI; Wash. Const. art. I, § 22.
3 U.S. Const. amend. XIV.
No. 39448-1-II
instruction. Finally, Hacheney argues that both his trial and appellate counsel were ineffective and
that cumulative error requires reversal of his conviction. We deny his request for relief.
FACTS
On December 26, 1997, Hacheney left his home early in the morning to go hunting with
Phil Martini and Lindsey Latsbaugh. After Hacheney left, his neighbors noticed that the
Hacheney home was on fire. The fire damaged the bedroom. Firefighters found Hacheney's
wife's body in bed as well as propane canisters and an electric space heater in the bedroom.
Hacheney told investigators that he and his wife, Dawn Hacheney, 4 had opened Christmas
presents, including the propane canisters, the night before and had left the gifts in the room with
the wrapping paper in front of the space heater. He said that he had turned on the space heater
when he woke up that morning and that Dawn may have failed to escape the fire because she had
taken Benadryl during the night.
When Dr. Emmanuel Lacsina, a Kitsap County medical examiner, performed an autopsy
on Dawn's body, he found that she did not have soot in her trachea or lungs and that she had
pulmonary edema, a condition that can result from congestive heart failure, drowning, a drug
overdose, head injury, or suffocation. He also collected blood and lung samples. Dr. Lascina
requested a toxicology report after the autopsy results made him "suspicious" that Dawn may
have been dead before the fire consumed the Hacheneys' home based on his autopsy results. 5
Report of Proceedings (RP) at 943.
Egle Weiss, a WSP Crime Laboratory toxicologist, tested the blood and tissue samples
4 We refer to Dawn Hacheney by her first name and Nicholas Hacheney as "Hacheney" to avoid
confusion. No disrespect is intended.
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No. 39448-1-II
Dr. Lacsina provided. These tests revealed no carbon monoxide in Dawn's blood and lungs and
no propane in her lungs, indicating that Dawn did not inhale after the fire began. Weiss's tests
also revealed an elevated level of Benadryl in Dawn's body. But the original police and insurance
investigations concluded that Dawn's death was accidental. Based on Weiss's toxicology report,
the lack of suspicion of foul play, and other information available at the time, Dr. Lascina
concluded that Dawn's larynx had spasmed reflexively during the fire, causing her to suffocate.
In 2001, new facts came to light, causing investigators to take a second look at the
circumstances surrounding Dawn's death. Sandra Glass told investigators that she had an affair
with Hacheney during the summer and fall of 1997. Glass told investigators that, a few weeks
after Dawn's death, Hacheney had told her that God had told him to "[t]ake the land,"5 that he
had held a plastic bag over Dawn's head until she stopped breathing, and that he had then started
the fire. 12 RP at 2334. Investigators also discovered that, in the months following Dawn's
death, Hacheney had sexual relationships with at least three other women. The State charged
Hacheney with first degree premeditated murder, alleging that he had committed the murder in the
course of first degree arson.6
5 This is a biblical phrase that members of his church interpreted as a command to act. State v.
Hacheney, 160 Wn.2d 503, 508, 158 P.3d 1152 (2007).
6 The State initially charged Hacheney with first degree premeditated murder and/or first degree
felony murder committed in the course of, in furtherance of, or in flight from first degree arson.
Hacheney, 160 Wn.2d at 508. The State amended the information to charge Hacheney with
aggravated first degree murder, alleging that Hacheney committed the murder to conceal the
commission of a crime and/or he committed the murder in the course of, in furtherance of, or in
immediate flight from the crime of first degree arson. Hacheney, 160 Wn.2d at 508. Hacheney
successfully challenged the probable cause basis for charges of felony murder, murder to conceal a
crime, or murder in furtherance of or in immediate flight from arson and those charges were
dismissed, thus the case went to trial on the charge of aggravated premeditated first degree
murder committed in the course of first degree arson.
Hacheney, 160 Wn.2d at 508.
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No. 39448-1-II
Three months before trial, the trial court granted the State's request to take the
preservation videotaped depositions of three witnesses who were planning to be out of the
country during the scheduled trial to be used in place of live testimony at trial. The State had all
three witnesses under subpoena for trial, but two of the witnesses, a married couple, were moving
to Scotland for three years, and the third witness, an electrical engineer, was moving to Bolivia
for six months. The State argued, in part, that it would be burdensome for the witnesses to return
for trial and that it would be financially burdensome for the State to bring them back for trial. The
trial court denied Hacheney's father's request to attend these depositions.
By the time this matter came to trial, Weiss had died unexpectedly and was unavailable to
testify about her laboratory analyses, but Dr. Barry Logan and Weiss had both signed her report.
Dr. Logan was Weiss's supervisor in 1997, and he testified about the WSP Crime Laboratory's
testing procedures for blood and tissue samples. The trial court admitted Weiss's "Death
Investigation Toxicology Report," exhibit 323, over Hacheney's objections. Dr. Lacsina, Dr.
Daniel Selove, and Dr. Logan testified at trial. Drs. Lacsina and Selove testified that Dawn had
died from suffocation before the fire started and both doctors based their opinions, in part, on
Weiss's laboratory report.
At the close of trial, the trial court gave the following limiting instruction with regard to
evidence of Hacheney's sexual relationships shortly after Dawn died in the fire:
Evidence has been introduced in this case on the subject of the Defendant's
relationships with several women for the limited purposes of whether the
Defendant acted with motive, intent or premeditation, or as evidence of
consciousness of guilt. You must not consider this evidence for any other
purpose.
Clerk's Papers (CP) at 1355. The jury found Hacheney guilty of first degree premeditated murder
4
No. 39448-1-II
and found, by special verdict, that he had committed the murder in the course of first degree
arson.
On direct appeal, Hacheney raised 29 issues. State v. Hacheney, noted at 128 Wn. App.
1061, 2005 WL 1847160, at *1 (Aug. 3, 2005), aff'd/rev'd in part, 160 Wn.2d 503, 158 P.3d
1152 (2007). Hacheney's arguments included assertions that (1) the evidence was insufficient to
support the jury's finding that he committed the murder in the course of first degree arson; (2) the
trial court violated his right to confrontation by allowing Drs. Lacsina, Logan, and Selove to rely
on Weiss's written laboratory report; (3) the trial court violated his Sixth Amendment right to
confront witnesses against him when it admitted the pretrial depositions of three witnesses; (4) the
trial court violated his constitutional right to a public trial by not allowing his father to attend the
State's depositions of witnesses who were expected to be out of the country during the trial; and
(5) the trial court erred by including the phrase "consciousness of guilt" in the limiting jury
instruction. Hacheney, 2005 WL 1847160, at *3, 5-7. We affirmed his conviction, rejecting his
arguments. Hacheney, 2005 WL 1847160 at *15.
Our Supreme Court reviewed two of the arguments Hacheney had raised here: whether
(1) the evidence supported the jury's finding that Hacheney had committed the murder in the
course of first degree arson, and (2) the trial court violated his Sixth Amendment right to confront
witnesses by admitting the videotaped depositions of the three witnesses at trial. Hacheney, 160
Wn.2d at 506. It held that, as a matter of law, Hacheney did not murder his wife in the course of
arson and vacated the aggravating factor. Hacheney, 160 Wn.2d at 506, 520. Our Supreme
Court also held that Hacheney's rights under the confrontation clause were not violated by
admission of the videotaped depositions of the three witnesses because the witnesses were
5
No. 39448-1-II
unavailable. Hacheney, 160 Wn.2d at 506.
ANALYSIS
I. Retroactivity of Confrontation Rights Re Toxicology Report
Hacheney argues that Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 180 L.
Ed. 2d 610 (2011), and Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 174 L.
Ed. 2d 314 (2009), establish that the trial court's admission of Weiss's toxicology report and
expert testimony relying on it to explain the basis of the experts' opinions violated his
confrontation clause rights. Although reexamination of the merits of Hacheney's claim in light of
the rapidly-evolving area of confrontation clause jurisprudence in a direct appeal may well
reach a different conclusion,7 and that emerging law may change the outcome,8 we hold that
7 See People v. Dendle, 289 Mich. App. 445, 458-468, 471, 473, 797 N.W.2d 645 (2010)
(holding that statements in toxicology report requested by medical examiner, who had not yet
ruled death was a homicide but had become suspicious of the manner of death, were testimonial
and subject to confrontation).
8 We note that Justice Sotomayor, a member of the Bullcoming majority, concurred to expressly
state that the majoritywas not reaching the issue of whether the confrontation clause bars expert
witnesses from testifying about out-of-court, testimonial statements on which they based their
independent opinions. 131 S. Ct. at 2722 (Sotomayor, J., concurring). Thus, neither Bullcoming
nor Melendez-Diaz reached that issue. Accordingly, under current federal case law, the admission
of out-of-court statements "for purposes other than establishing the truth of the matter asserted"
does not violate the confrontation clause. Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 (2004).
Further, under current Washington law, out-of-court statements on which experts base
their opinions are not offered at trial as substantive proof, i.e., the truth of the matter asserted.
See Group Health Co-op. of Puget Sound, Inc. v. State, 106 Wn.2d 391, 399-400, 722 P.2d 787
(1986) (citing State v. Wineberg, 74 Wn.2d 372, 382, 444 P.2d 787 (1968)). Rather, they are
offered "only for the limited purpose of explaining the expert's opinion." 5D Karl B. Tegland,
Washington Practice: Courtroom Handbook on Washington Evidence author's cmts. at 387, 400
(2011-2012 ed.); see also State v. Lui, 153 Wn. App. 304, 322-23, 221 P.3d 948 (2009), review
granted, 168 Wn.2d 1018 (2010) (stating that admission of out-of-court statements did not
implicate the confrontation clause because they were admitted to explain the bases for experts'
opinions, not for the truth of the matter asserted); State v. Anderson, 44 Wn. App. 644, 652-53,
723 P.2d 464 (1986) (stating that trial court did not abuse its discretion in allowing the State's
6
No. 39448-1-II
Washington law precludes retroactive application of Bullcoming and Melendez-Diaz with regard
to the admission of Weiss's toxicology report and the expert testimony relying on it in this PRP
collateral attack on Hacheney's conviction.
A. Standard of Review
A petitioner may request relief through a PRP when he is under unlawful restraint. RAP
16.4(a)-(c). In order to prevail on a PRP, the petitioner must show that there was a
"constitutional error that resulted in actual and substantial prejudice to the petitioner or that there
was a nonconstitutional error that resulted in a fundamental defect which inherently results in a
experts to testify about Anderson's out-of-court statements to them because the statements were
not offered to prove the truth of the matter asserted); State v. Fullen, 7 Wn. App. 369, 379, 499
P.2d 893 (1972) (quoting Dutton v. Evans, 400 U.S. 74, 88, 91 S. Ct. 210, 27 L. Ed. 2d 213
(1970)) ("'The hearsay rule does not prevent a witness from testifying as to what he has heard; it
is rather a restriction on the proof of fact through extrajudicial statements.'").
Thus, Hacheney fails to demonstrate a change in law regarding the interaction between the
confrontation clause and out-of-court statements offered at trial to explain the basis of an expert's
opinion under our existing law. Accordingly, the interests of justice do not require us to
reconsider Hacheney's confrontation clause claim with respect to Drs. Lacsina's, Selove's, and
Logan's testimony about out-of-court statements in Weiss's report on which they based their
independent opinions. See p. 9 infra.
But we further note that the United States Supreme Court recently heard oral argument in
People v. Williams, 238 Ill. 2d 125, 939 N.E.2d 268, 345 Ill. Dec. 425 (2010), cert. granted, 131
S. Ct. 3090 (2011). In Williams, the Illinois Supreme Court held that an expert's testimony about
the facts and out-of-court statements in another laboratory's report not admitted into evidence
was offered to explain the basis of the expert's opinion, not for the truth of the matter asserted,
and, thus, did not implicate the confrontation clause. 238 Ill. 2d at 132-33, 141, 143-45, 150. At
oral argument before the United States Supreme Court, however, some justices suggested that, at
least in Williams's case, such facts and out-of-court statements were admitted only for the truth of
the matter asserted. See, e.g., Transcript of Oral Argument at 6-8, 17-18, 22, 24-27, 30-31, 131
S. Ct. 3090 (2011) (No. 10-8505), available at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-8505.pdf.
We also note that the Washington State Supreme Court granted review in Lui and on
September 19, 2011, stayed review pending the United States Supreme Court's decision in
Williams. Although we continue to rely on existing case law about the purpose for which trial
courts admit facts and out-of-court statements forming the basis of expert opinions, we note the
uncertainty currently surrounding this area of law.
7
No. 39448-1-II
complete miscarriage of justice." In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d
607 (2005). The petitioner must show by a preponderance of the evidence that the error was
prejudicial. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004).
B. Intervening Change in Law
Kitsap County medical examiner Lascina requested the toxicology report after autopsy
results made him "suspicious" that Dawn may have been dead before a fire consumed the
Hacheneys' home. RP at 943. Weiss was not available to testify about her laboratory tests and
the results because she had died before trial. Thus, Drs. Lacsina, Selove, and Logan testified at
trial, relying in part on Weiss's report. Hacheney appeals the admission of Weiss's report and the
testimony relying on it, arguing that his confrontation rights were denied due to his inability to
cross-examine the laboratory technician responsible for the reports relied upon that suggest that
Dawn was dead before the fire in the bedroom started.
We previously rejected Hacheney's confrontation clause challenge in his direct appeal to
the admission of Weiss's toxicology report at trial. Hacheney, 2005 WL 1847160, at *9-10.
Hacheney now argues that the United States Supreme Court's subsequent decisions in
Bullcoming and Melendez-Diaz warrant reversal of his convictions and remand for a new trial.
But Bullcoming and Melendez-Diaz were direct appeals.
In contrast, a PRP is a collateral attack on a judgment. RCW 10.73.090(2). A collateral
attack may not renew an issue "raised and rejected on direct appeal unless the interests of justice
require relitigation of that issue." In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1
(2004) (footnotes omitted). Reexamination of an issue serves the interests of justice if there was
"an intervening change in law or some other justification for having failed to raise a crucial point
8
No. 39448-1-II
or argument in the prior application." Davis, 152 Wn.2d at 671 n.15.
The United States Supreme Court characterized Melendez-Diaz as a "rather
straightforward application of [its] holding in [Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004)]." Melendez-Diaz, 129 S. Ct. at 2533. But our Supreme Court
has stated that, despite the United States Supreme Court's characterization of its own cases, those
cases may still constitute a change to settled interpretations of the law in Washington. State v.
Robinson, 171 Wn.2d 292, 301-03, 253 P.3d 84 (2011).
Indeed, one panel of Division One of this court has recognized Melendez-Diaz as
superseding our Supreme Court's decisions in State v. Kirkpatrick, 160 Wn.2d 873, 161 P.3d 990
(2007), and State v. Kronich, 160 Wn.2d 893, 161 P.3d 982 (2007), on the issue of whether
public or business records may nonetheless contain testimonial statements. State v. Jasper, 158
Wn. App. 518, 529-30, 532 n.6, 245 P.3d 228 (2010), review granted, 170 Wn.2d 1025 (2011).
Another Division One panel observed that it is unclear whether Bullcoming, Melendez-Diaz, and
Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), may signal a
departure from Crawford's tenets. See State v. Dash, 163 Wn. App. 63, 72-74, 259 P.3d 319
(2011). We agree with Division One and hold, on this record, that Bullcoming and Melendez-
Diaz constituted a change in Washington law regarding the characterization of out-of-court
statements contained in Weiss's report as testimonial. The issue in this PRP, then, is whether this
change constitutes a "new" rule of criminal procedure that can be retroactively applied to grant
Hacheney's request for a new trial.
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No. 39448-1-II
C. Retroactivity of Collateral Attacks
Washington courts attempt to maintain congruence with the United States Supreme Court
in our retroactivity analysis. In re Pers. Restraint of Markel, 154 Wn.2d 262, 268, 111 P.3d 249
(2005). A rule is "'new'" under retroactivity analysis if it "'breaks new ground'" or "'was not
dictated by precedent existing at the time the defendant's conviction became final.'" Markel, 154
Wn.2d at 270 (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 103 L. Ed. 2d 334
(1989) (plurality opinion)).
Under our retroactivity analysis, we will not retroactively apply a new rule of criminal
procedure on collateral attack, subject to two exceptions: (1) the rule places "certain kinds of
primary, private individual conduct beyond the State's power to prohibit" or (2) the rule requires
"observance of procedures that are implicit in the concept of ordered liberty." In re Pers.
Restraint of Rhome, 172 Wn.2d 654, 666, 260 P.3d 874 (2011). The first exception does not
apply here, as neither Bullcoming nor Melendez-Diaz decriminalized the conduct for which
Hacheney was punished. See Rhome, 172 Wn.2d at 666. Thus, we turn to the second exception.
The second retroactivity exception applies to only a "'small set of watershed rules of
criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.'" Markel, 154 Wn.2d at 269 (internal quotation marks omitted) (quoting Schriro v.
Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004)). "'That a new
procedural rule is fundamental in some abstract sense is not enough; the rule must be one without
which the likelihood of an accurate conviction is seriously diminished.'" Rhome, 172 Wn.2d at
667 (internal quotation marks omitted) (quoting Summerlin, 542 U.S. at 352). "'[T]his class of
rules is extremely narrow, and it is unlikely that any . . . ha[s] yet to emerge.'"9 Markel, 154
10
No. 39448-1-II
Wn.2d at 269 (internal quotation marks omitted) (2d alteration in original) (quoting Summerlin,
542 U.S. at 352). It would appear that the "'small set'" is, in fact, an empty set of rules that
"'implicat[e] the fundamental fairness and accuracy of . . . criminal proceeding[s]'" sufficiently to
warrant retroactive application and, thus, the second exception may better be called a barrier to
retroactivity. See Markel, 154 Wn.2d at 269-70 (internal quotation marks omitted) (quoting
Summerlin, 542 U.S. at 352).
In Markel, our Supreme Court considered whether the United States Supreme Court's
decision in Crawford, 541 U.S. at 68, holding "testimonial" hearsay inadmissible at trial unless the
declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant,
was retroactively applicable on collateral attack. 154 Wn.2d at 264-65. Our court first rejected
the argument that Crawford did not constitute a "new" rule of criminal procedure to which
retroactivity analysis applied, observing that Crawford broke from previous United States
Supreme Court precedent. Markel, 154 Wn.2d at 270. It then reasoned that "Crawford is plainly
seen as a new definition of the confrontation clause requirements, intended to more accurately
reflect the constitutional framers' intent," and, thus, "[c]riminal defendants who were denied
Crawford's procedural requirements by reason of timing were not dispossessed of all meaningful
opportunityto challenge the admission of" testimony. Markel, 154 Wn.2d at 273. Accordingly,
it rejected the argument that Crawford announced a "'watershed rule[ ] of criminal procedure'"
"'without which the likelihood of an accurate conviction is seriously diminished'" that warranted
retroactive application on collateral review. Markel, 154 Wn.2d at 273 (internal quotation marks
9 Indeed, at the time of the Markel decision, the United States Supreme Court had yet to hold that
any rule fell within this exception. 154 Wn.2d at 269 n.2.
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No. 39448-1-II
omitted) (alteration in original) (quoting Summerlin, 542 U.S. at 352).
Here, it seems axiomatic that by demonstrating a change in the law, Hacheney has
demonstrated a "new" rule of criminal procedure for purposes of retroactivity analysis.
Furthermore, Division One's recent opinions establish that Melendez-Diaz has superseded two
Washington State Supreme Court decisions and has called into question Crawford's tenets.
Dash, 163 Wn. App. at 72-74; Jasper, 158 Wn. App. at 529-30. Accordingly, we hold that
Hacheney has demonstrated a "new" rule of criminal procedure for purposes of retroactivity
analysis.
But under the Markel court's reasoning, Bullcoming and Melendez-Diaz represent even
less of a watershed moment in criminal procedure than did Crawford. Where Crawford
completely redefined the confrontation clause's requirements, Melendez-Diaz further explored the
characteristics of testimonial statements under Crawford and, in turn, Bullcoming expanded upon
Crawford's and Melendez-Diaz's rationales. Bullcoming, 131 S. Ct. 2713-14, 2716-17;
Melendez-Diaz, 129 S. Ct. at 2532. Furthermore, in his direct appeal, Hacheney challenged the
admissibility of Weiss's report under previous confrontation clause jurisprudence, namely,
Crawford. Hacheney, 2005 WL 1847160, at *9-10. Thus, the Markel court's rationales barring
retroactive application of Crawford on collateral review apply with greater force to Crawford's
progeny, Bullcoming and Melendez-Diaz.
In sum, for us to reexamine Hacheney's confrontation clause challenge on collateral
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No. 39448-1-II
review, Hacheney must demonstrate a change in law.10 We hold that Hacheney has demonstrated
a change in law and a new rule of criminal procedure regarding the out-of-court statements in
Weiss's report. But that rule cannot be applied by us retroactively in this collateral attack on
Hacheney's conviction unless it constitutes a "'watershed rule,'" a class of rules from which "'it is
unlikely that any . . . ha[s] yet to emerge.'" Markel, 154 Wn.2d at 269 (internal quotation marks
omitted) (alteration in original) (quoting Summerlin, 542 U.S. at 352). Thus, our corollary
holding is that the "watershed rule" constitutes a barrier to collateral attack based on new rules of
criminal procedure, including the right to subject Weiss, whose report the State used during
Hacheney's prosecution, to cross-examination. Markel, 154 Wn.2d at 269.
Therefore, Hacheney cannot show that the change in the law wrought by Bullcoming and
Melendez-Diaz and the resulting criminal procedure rule support a legal finding that we now have
a "watershed rule" that allows relief when collaterally attacking a conviction. And here, the
admission of Weiss's report and the reliance placed on it by the testifying doctors cannot be
reviewed in Hacheney's PRP and we deny Hacheney's request for relief.
D. Status of Confrontation Clause Testimonial Analysis
We write further to address the general lack of clarity in current confrontation clause
10 We note further that RCW 10.73.100(6) allows for collateral relief from judgment based on a
"significant change in the law . . . which is material to the conviction . . . and . . . a court, in
interpreting a change in the law that lacks express legislative intent regarding retroactive
application, determines that sufficient reasons exist to require retroactive application of the
changed legal standard.'" We have applied this statutory language consistent with the United
States Supreme Court's retroactivityanalysis, although that analysis does not limit the scope of
relief we may provide under the statute. Markel, 154 Wn.2d at 268 n.1; see also State v. Abrams,
163 Wn.2d 277, 291-92, 178 P.3d 1021 (2008); State v. Evans, 154 Wn.2d 438, 448-49, 114
P.3d 627 (2005). We find no sufficient reason in this case to depart from the federal analysis and
to require retroactive application of this new rule on collateral attack. Accord Markel, 154
Wn.2d at 268 n.1.
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No. 39448-1-II
jurisprudence were we to consider Hacheney's claim for relief under the confrontation clause in
light of the emerging law on the issue. In Bryant, the United States Supreme Court considered
whether statements given in response to police interrogation during an ongoing emergency were
testimonial statements triggering the confrontation clause. 131 S. Ct. at 1166-67. In doing so, it
applied the "primary purpose" test:
"Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution."
Bryant, 131 S. Ct. at 1154, 1156 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006)).
In his dissent, Justice Scalia sharply criticized the Bryant majority's "'amorphous, if not
entirely subjective'" application of the test:
Where the prosecution cries "emergency," the admissibility of a statement now
turns on "a highly context-dependent inquiry[]" into the type of weapon the
defendant wielded; the type of crime the defendant committed; the medical
condition of the declarant; if the declarant is injured, whether paramedics have
arrived on the scene; whether the encounter takes place in an "exposed public
area"; whether the encounter appears disorganized; whether the declarant is
capable of forming a purpose; whether the police have secured the scene of the
crime; the formality of the statement; and finally, whether the statement strikes us
as reliable. This is no better than the nine-factor balancing test we rejected in
Crawford, 541 U.S., at 63, 124 S. Ct. 1354. I do not look forward to resolving
conflicts in the future over whether knives and poison are more like guns or fists
for [c]onfrontation [c]lause purposes, or whether rape and armed robbery are more
like murder or domestic violence.
Bryant, 131 S. Ct. at 1175-76 (Scalia, J., dissenting) (citations omitted) (quoting Crawford, 541
U.S. at 63). But he then acknowledged, "It can be said, of course, that under Crawford analysis
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No. 39448-1-II
of whether a statement is testimonial requires consideration of all the circumstances, and so is also
something of a multifactor balancing test.'" Bryant, 131 S. Ct. at 1176 (Scalia, J., dissenting).
We write out of concern that the Crawford test is, at a minimum, "something of a
multifactor balancing test" and, at most, an "'amorphous, if not entirely subjective'" test when
applied to autopsy reports and derivative forensic reports offered as evidence in criminal trials.
Bryant, 131 S. Ct. at 1175-76 (Scalia, J., dissenting) (quoting Crawford, 541 U.S. at 63). In
Crawford, the Supreme Court articulated three formulations of the "core class" of testimonial
statements but did not endorse a "comprehensive" definition:
Various formulations of this core class of testimonial statements exist: ex
parte in-court testimony or its functional equivalent-that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially; extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony, or
confessions; [and] statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.
541 U.S. at 51-52, 68 (internal quotation marks and citations omitted). These formulations are
more easily applied to forensic reports in cases such as Bullcoming and Melendez-Diaz, where the
reports were analogous to affidavits, than to Weiss's forensic report. 131 S. Ct. at 2717; 129 S.
Ct. at 2532.
Weiss's forensic report does not resemble the reports in Bullcoming and Melendez-Diaz.
Accordingly, were we to reach the merits of Hacheney's claim, we would necessarily apply
Crawford's other formulations, i.e., whether the challenged statements "were made under
circumstances which would lead an objective witness reasonably to believe that the statement[s]
would be available for use at a later trial," 541 U.S. at 52, an amorphous and, we suggest,
15
No. 39448-1-II
problematic subjective analytic framework.
Hacheney's claim is that Weiss's forensic laboratory report, requested by Kitsap County
medical examiner Lascina, detailing the results of toxicology tests performed by Weiss on blood
and tissue samples from Dawn's body, contained testimonial statements that should have been
subjected to cross-examination. To evaluate this claim under Crawford's subjective analytic
framework, we would likely have to consider many factors, including: (1) law enforcement's
involvement, if any, in the investigation of Dawn's death; (2) the nature of law enforcement's
involvement; (3) the facts resulting from that investigation; (4) the nature and purpose of the
medical examiner's investigation into her death; (5) facts, if any, made available to the medical
examiner by law enforcement in the course of the medical examiner's investigation; (6) questions
arising from the medical examiner's investigation; (7) the nature and purpose of Weiss's
toxicology testing in general, e.g., whether it was normally requested by law enforcement or
another state actor and whether the testing was performed pursuant to a statutory duty, as part of
a criminal investigation, or both; (8) issues or facts, if any, made available to Weiss by the medical
examiner; (9) the results of Weiss's tests; and (10) whether an objective witness in Weiss's
position would reasonably believe that her forensic laboratory report would be available for use at
a later trial. See 541 U.S. at 52; see also People v. Dendle, 289 Mich. App. 445, 458-68, 797
N.W.2d 645 (2010) (discussing numerous confrontation clause cases involving forensic reports
and holding that statements in analyst's report of glucose tests requested by medical examiner
were testimonial); Cuesta-Rodriguez v. State, 2010 OK Cr 23, ¶ 28-35, 241 P.3d 214, cert.
denied, 132 S. Ct. 259 (2011) (discussing numerous cases and holding statements in autopsy
report were testimonial).
16
No. 39448-1-II
Under Crawford's analysis, our legal inquiry begins to resemble the old-fashioned game of
"telephone," as we must attempt to reconstruct the investigation, chain of custody, and sequence
of testing from beginning to end, asking who knew what and when. We would suggest that
courts should not be forced to allow a defendant's constitutional right to confront witnesses to be
determined by something resembling a game, especially in the context of scientific forensic
evidence.
In Melendez-Diaz, the State of Massachusetts argued that the reliability of "'neutral,
scientific testing'" might warrant an exception from the confrontation clause's requirements. 129
S. Ct. at 2536 (quoting Melendez-Diaz Brief of Respondent at 29). The Supreme Court rejected
this argument, observing that it is not evident that scientific testing is as neutral or as reliable as
the State claimed and illustrating how cross-examination of analysts serves to weed out fraudulent
or erroneous analysis. Melendez-Diaz, 129 S. Ct. at 2536-38. Given a not uncommon perception
of scientific evidence as neutral, reliable, and possibly nigh-infallible, perhaps a more stringent
confrontation clause analysis is required for forensic analyses performed at state crime
laboratories.
Furthermore, it may be true that Washington medical examiners perform autopsies and
that toxicologists perform requested derivative tests pursuant to their duties under state law. But
due to the nature of their duties, i.e., investigating the cause and manner of an individual's death,
every autopsy and derivative test has "the potential to lead to criminal prosecution." See State v.
Hopkins, 137 Wn. App. 441, 456, 154 P.3d 250 (2007). And, as in this case, a medical
examiner's "investigatory role overlap[s] with and aid[s] law enforcement." See Hopkins, 137
Wn. App. at 457.
17
No. 39448-1-II
Here also, we have Hacheney's evidence of problems within the WSP Crime Laboratory,
issues that may form the core of cross-examination of a forensic scientist whose report is relied
upon by the State. See section II infra. In this instance and others, accordingly, it would seem
that an objective witness in the position of a medical examiner investigating a death or an analyst
performing tests at the examiner's request would reasonably believe that their statements would
be available for use at a later trial, thus satisfying the Crawford formulations, even within their
limitations. 541 U.S. at 51-52.
As the Supreme Court stated in Crawford, "By replacing categorical constitutional
guarantees with open-ended balancing tests, we do violence to [the Framers'] design. Vague
standards are manipulable." 541 U.S. at 67-68. We suggest that perhaps the better rule would be
to subject the authors of any autopsy report or derivative report to confrontation clause
requirements for testimonial statements.11 Such a categorical rule would serve as a bulwark
against the "unpardonable vice" of amorphous, multifactor tests with the "demonstrated capacity
to admit core testimonial statements that the [c]onfrontation [c]lause plainly meant to exclude."
Crawford, 541 U.S. at 63.
11 Such a rule would be preferable even in cases where Bryant's "'primary purpose'" test may
apply to the admissibility of autopsy reports and other derivative forensic reports. 131 S. Ct. at
1154 (quoting Davis, 547 U.S. at 822). Both the United States Supreme Court and our Supreme
Court have noted that this test applies in the context of police interrogations. Davis, 547 U.S. at
822; State v. Beadle, No. 84204-3, 2011 WL 5223072, at *5 (Wash. Nov. 3, 2011). The United
States Supreme Court has suggested that a police request for a forensic report is similar to a
police interrogation and, according to some of the Court's members, warrants application of the
primary purpose test. See Bullcoming, 131 S. Ct. at 2714 n.6, 2717 (majorityopinion), 2720-21
(Sotomayor, J., concurring); Melendez-Diaz, 129 S. Ct. at 2535. Although the record reflects no
police request for Dawn's autopsy or derivative tests, application of the amorphous primary
purpose test in this and other cases would suffer the same failings as Crawford's formulations.
See Bryant, 131 S. Ct. at 1175-76 (Scalia, J., dissenting).
18
No. 39448-1-II
A majorityofthe 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
in accordance with RCW 2.06.040, it is so ordered.
II. Newly Discovered Evidence
Hacheney also argues in this PRP that "newly discovered evidence regarding the
performance standards of the [WSP] Crime Lab[oratory] justifies a new trial" and that the State
committed a Brady12 violation by failing to disclose "material information regarding the
performance standards of the [WSP] Crime Lab[oratory]." PRP at 29, 36 (some capitalization
omitted).
Restraint is unlawful under RAP 16.4(c)(3) "where material facts exist that have not been
previously presented and heard, which in the interest of justice require vacation of the
conviction." In re Pers. Restraint of Delmarter, 124 Wn. App. 154, 162, 101 P.3d 111 (2004).
A petitioner must prove that (1) the results will probably change if a new trial is granted, (2) the
evidence was discovered after trial, (3) the evidence could not have been discovered before trial
through due diligence, (4) the evidence is material, and (5) the evidence is not merely cumulative
or impeaching. Delmarter, 124 Wn. App. at 162 (citing State v. Roche, 114 Wn. App. 424, 444,
59 P.3d 682 (2002)). Evidence is material if there is a reasonable probability that the result of the
proceeding would have differed if the evidence had been disclosed. See In re Pers. Restraint of
Stenson, 150 Wn.2d 207, 218, 76 P.3d 241 (2003) (citing In re Pers. Restraint of Rice, 118
Wn.2d 876, 887, 828 P.2d 1086 (1992)).
12 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
19
No. 39448-1-II
Under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), a
defendant's right to due process is violated when the prosecution suppresses material evidence
favorable to the defendant. In re Pers. Restraint of Sherwood, 118 Wn. App. 267, 270, 76 P.3d
269 (2003). A Brady violation occurs when (1) there is exculpatory or impeaching evidence, (2)
the State willfully or inadvertently suppresses the evidence, and (3) prejudice results. Delmarter,
124 Wn. App. at 167. The prosecution has no duty to independently search for exculpatory
evidence. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 399, 972 P.2d 1250 (1999).
To support his argument, Hacheney attaches Appendix B to his PRP. This appendix
generally contains various writings about the WSP Crime Laboratory, pointing out deficiencies or
concerns. The writings contained in Appendix B fall into four categories: (1) criticisms of
individual crime laboratory employees or general criticisms of crime laboratories,13 (2) criticisms
13 Hacheney includes four articles from the Seattle Post-Intelligencer, all of which were written in
2004, in his Appendix B, to outline criticisms of individual crime laboratory employees or general
criticisms of crime laboratories. One article discusses oversights at the WSP Crime Laboratory,
citing problems with individual employees unrelated to the Hacheney investigation. PRP, App. B
at 1 (Ruth Teichroeb, Oversight of crime-lab staff has often been lax, Seattle Post-Intelligencer,
July 23, 2004). Another article discusses the termination of Arnold Melnikoff, a forensic scientist
who did not work on Hacheney's case, after an internal audit raised questions about his drug
analyses. PRP, App. B at 14 (Ruth Teichroeb, State Patrol fires crime lab scientist, Seattle Post-
Intelligencer, March 24, 2004). A third article raises concerns regarding whether crime labs
should be required to produce error rates for deoxyribonucleic acid (DNA) testing to help courts
weigh the importance of DNA evidence. PRP, App. B at 17 (Ruth Teichroeb, Produce crime lab
error rates, some urg, Seattle Post-Intelligencer, July 22, 2004). The final article offers general
criticisms of crime labs and proposes some solutions including removing crime laboratories from
the WSP, blind testing of laboratory work, licensing for forensic scientists, and increased funding
for crime labs. PRP, App. B at 18 (Ruth Teichroeb, Crime labs too beholden to prosecutors,
critics say, Seattle Post-Intelligencer, July 23, 2004).
20
No. 39448-1-II
of the State's Breath Testing Program for driving while under the influence (DUI) evidence,14 (3)
state audits or reports regarding the WSP toxicology and crime laboratories,15 and (4) the writings
of Dr. Logan.16 We hold that Hacheney's restraint was not unlawful given the various writings in
14 Criticism of the State's Breath Testing Program for DUI evidence includes a press release, an
article, and an order granting the defendants' motion to suppress evidence in State v. Ahmach,
Sanafim, et al, No. C00627921 (King County District Court, Redmond, Wash. Jan. 30, 2008).
The Washington Association of Criminal Defense Lawyers sent out a press release on October 16,
2007, titled "State Forensics Council Asked to Instigate Crime Lab" that details their request to
have the state's Forensic Investigations Council investigate alleged negligence and misconduct in
the WSP's crime laboratory system stemming from the conduct of two employees unrelated to
Hacheney's case, Ann Marie Gordon and Evan Thompson. PRP, App. B at 20. Hacheney also
attaches an article which focuses on problems with the laboratory's Breath Testing Program.
PRP, App. B at 89 (Bob Geballe, Test Anxiety: Scandal at the state's DUI lab has defendants
lathered, Washington Law & Politics, Spring 2008 ed., at 39-40). Finally, the order granting
defendant's motion to suppress evidence from Ahmach pertained only to breath tests in the named
defendants' cases and concerned only the simulator solutions prepared and tested by the
Washington State Toxicology Laboratory (WSTL); the order specifically did not relate to any of
the other work of the WSTL. PRP, App. B at 21 (Order Granting Defs.' Mot. To Suppress,
State v. Ahmach, Sanafim, et al, No. C00627921 at 1, 25 n.15 (King County District Court,
Redmond, Wash. Jan. 30, 2008)).
15 Hacheney includes the following State audits or reports regarding the WSP toxicology and
crime laboratories in his Appendix B: a report from the Forensic Investigations Council, a report
from the Forensic Lab Services Bureau to the Chief of the WSP, and a media release from the
WSP. None of the audits or reports covered time periods, employees, or programs relevant to
Hacheney's case. The report from the Forensic Investigations Counsel reviewed one crime
laboratory employee, Thompson; the toxicology laboratory's evidence audits from 2004-2007;
problems with the Breath Testing Program and its manager, Gordon; and a data quality audit from
2007 which audited toxicology files signed or co-signed by Gordon for the period of time from
July of 2005 through June of 2007. PRP, App. B at 50 (Forensic Investigations Council Report
on the Washington State Toxicology Laboratory and the Washington State Crime Laboratory,
Forensics Investigations Council, at 2-7, April 17, 2008). The report from the Forensic Lab
Services Bureau was based on an audit of the evidence system at the WSTL in Seattle conducted
in August of 2007. PRP, App. B at 64 (Washington State Patrol: Report to the Chief, Forensic
Lab Services Bureau, at 1, September 4, 2007). Finally, the media release announced that the
WSP accepts all findings from audits of the WSTL. PRP, App. B at 91 (State Patrol Accepts All
Findings in Audits of State Toxicology Lab, Washington State Patrol, February 7, 2008). These
audits were also reviewed in the aforementioned Forensic Investigations Counsel report.
16 The writings of Dr. Logan from Petitioner's Appendix B include (1) an issue paper prepared by
Logan regarding the WSP Crime Laboratory's Breath Testing Program, PRP, App. B at 81; (2)
21
No. 39448-1-II
Appendix B, nor did the State commit a Brady violation.
Hacheney's unlawful restraint claim under RAP 16.4(c)(3) fails because his attachments
do not show that information about the WSP Crime Laboratory is material, rather than merely
impeaching. Delmarter, 124 Wn. App. at 162. There is no reasonable probability that the
attachments in Hacheney's Appendix B would have changed the result of Hacheney's trial
because the attachments largely cover crime laboratory issues that occurred several years after
Hacheney's trial relating to DUI cases or problems pertaining to individual employees unrelated to
Hacheney's case. Only the attachments categorized as writings of Dr. Logan contain evidence
relating to laboratory employees relevant to Hacheney's case. None of those writings, however,
contain new evidence that would have been reasonably likely to change the result of Hacheney's
trial because they do not allege any facts damaging to Weiss's performance or to her report's
accuracy. Had the information in Hacheney's Appendix B been available during Hacheney's trial,
evidence of the conduct at the WSP Crime Laboratory could, at best, have been used to attempt
to impeach Dr. Logan's testimony. Therefore, we hold that Hacheney has failed to establish that
material facts exist that require vacation of his conviction in the interest of justice.
Hacheney's Brady claim fails because he cannot show that employee misconduct
prejudiced him because the employees and programs detailed in Petitioner's Appendix B did not
process the evidence in his case. Delmarter, 124 Wn. App. at 167. Hacheney was not prejudiced
Logan's resignation letter dated February 12, 2008, which was addressed to Chief John R. Batiste
of the WSP, outlining Logan's retirement schedule, PRP, App. B at 88; (3) an email chain from
July and August of 2000 detailing Glenn Case's announced retirement after Case responded
"angrily" to a minor scheduling conflict with some coworkers, PRP, App. B at 93; and finally (4)
Logan's signed declaration, dated June 26, 2009, which is consistent with Logan's testimony at
trial, PRP, App. B at 94.
22
No. 39448-1-II
by his inability to present problems with employees unrelated to Hacheney's case and problems in
the Breath Testing Program.
Further, Hacheney cannot show that the State willfully or inadvertently suppressed the
evidence contained in his Appendix B, given that the State has no independent duty to search for
exculpatory evidence. Delmarter, 124 Wn. App. at 167; Gentry, 137 Wn.2d at 399. It was not
until 2007, five years after Hacheney's trial, that Dr. Logan became aware that Gordon, the
laboratory manager at the Washington State Toxicology Laboratory (WSTL), was falsely
certifying that she had prepared and tested simulator solution on breath test analyses in DUI
cases.17 Other problem employees mentioned in the attachments of Appendix B were dealt with
as the State became aware of their transgressions. Therefore, we also hold that no Brady
violation occurred.
III. Videotaped Depositions of Unavailable Witnesses
Hacheney also argues that the trial court violated his Sixth Amendment right to confront
witnesses by admitting the videotaped depositions of three witnesses at trial. He asserts that
newly discovered evidence shows that the State did not make a good faith effort to secure the
presence of these witnesses at trial, thus the witnesses were not unavailable to testify. We
disagree.
17 Hacheney relies on a King County District Court order which found that "Dr. Logan testified
that he had been told in 2000 by Ms. Gordon that her predecessor in the WSTL had fraudulently
signed CrRLJ 6.13 certificates when he was the manager of the WSTL." PRP, App. B at 21
(Order Granting Defs.' Mot. To Suppress, State v. Ahmach, Sanafim, et al, No. C00627921 at 22
(King County District Court, Redmond, Wash. Jan. 30, 2008)). But the King County District
Court found that Gordon began engaging in this practice in 2003, which was after Hacheney's
trial. PRP, App. B at 21 (Order Granting Defs.' Mot. To Suppress, State v. Ahmach, Sanafim, et
al, No. C00627921 at 3 (King County District Court, Redmond, Wash. Jan. 30, 2008)). Further,
the false certifications affected breath tests, which were not conducted in the Hacheney case.
23
No. 39448-1-II
Before trial, the State moved to perpetuate the depositions of the three witnesses, who
were under subpoena but scheduled to be out of the country at the time of trial. Hacheney, 160
Wn.2d at 520-21. At trial, the State submitted letters from each of the three witnesses confirming
that they were out of the country. Hacheney, 160 Wn.2d at 521. The State sought to show the
videotaped depositions in lieu of live testimony; defense counsel unsuccessfully objected, arguing
that the State had not taken steps to show that the witnesses were truly unavailable and had done
nothing to secure the three witnesses' presence at trial. Hacheney, 160 Wn.2d at 521.
In his direct appeal, Hacheney argued that the State did not establish the witnesses'
unavailability. Hacheney, 160 Wn.2d at 520. Our Supreme Court concluded that the trial court
could have reasonably inferred from the record that, even if the State had offered to pay for the
witnesses' travel expenses, they would have remained out of the country. Hacheney, 160 Wn.2d
at 522. The Supreme Court reasoned that Hacheney was present at the depositions, the jury was
able to observe the demeanor of the witnesses on videotape, and Hacheney's attorneys knew that
the witnesses would be out of the country at the time of the two-month trial. Hacheney, 160
Wn.2d at 522-23.18
Now Hacheney submits an email from a witness, stating that he and his wife would have
testified if the State had paid their travel expenses; a declaration, signed by an attorney who spoke
with the third witness, which declares, "I asked [the witness] what prosecutors told him with
respect to his responsibility to return and testify at the trial. [The witness] said, 'as far as I knew,
I was done'"; and emails from the State to the witnesses discussing the necessity of unavailability
18 Further, the Supreme Court noted, "Hacheney's conviction did not rest entirely on the
testimony of any of the three deposed witnesses." Hacheney, 160 Wn.2d at 523.
24
No. 39448-1-II
letters and the language the witnesses were to include in their letters. PRP, App. C. Hacheney
argues that these demonstrate that the State did not act in good faith to secure the witnesses at
trial.
That the State did not offer to pay for the witnesses' travel expenses is not newly
discovered evidence and was a fact already considered in Hacheney's direct appeal. See
Hacheney, 160 Wn.2d at 522. Further, with regard to the State's proposed language for the
unavailability letters, the State persuasively asserts, "It is not at all uncommon for an attorney to
explain to a lay person what facts are relevant and needed in a statement to be submitted to the
court. This hardly raises an inference that [the] attorney is dictating the witness's conduct." Br.
of Resp't at 39. The ends of justice do not require us to reconsider Hacheney's claim relating to
the videotaped depositions of three witnesses at his trial.
IV. Public Trial
Hacheney also argues that, because new evidence demonstrates that the three witnesses
were available, their depositions constituted part of the trial. Thus, he contends that the trial
court violated his right to a public trial when it did not allow his father to attend these depositions.
Hacheney argued in his direct appeal that "the trial court violated his constitutional right to a
public trial by not allowing his father to attend the depositions." Hacheney, 2005 WL 1847160,
at *6. We held that Hacheney's right to a public trial was not violated because the depositions
were later used in a public trial that his father had every right to attend. Hacheney, 2005 WL
1847160, at *7.19
19 As we discussed above, Hacheney fails to prove that the State did not make a good faith effort
to secure the presence of witnesses at trial. Thus, the State did not "mis[lead] the trial court and
this [c]ourt to conclude that the closed court hearing was merely a discovery deposition and not
part of the trial." PRP at 45.
25
No. 39448-1-II
Our Supreme Court recently held, in Tacoma News, Inc. v. Cayce, 172 Wn.2d 58, 79-80,
256 P.3d 1179 (2011), that article I, section 10 of the Washington State Constitution and the First
Amendment to the United States Constitution do not provide a constitutional right of access to a
pretrial deposition until the deposition is ruled admissible for trial. Moreover, our Supreme Court
has already resolved this issue on whether the depositions were properly admitted and its decision
is binding on us. Hacheney, 160 Wn.2d at 506. Hacheney fails to establish that the ends of
justice require us to reconsider this issue.
V. Limiting Jury Instruction
Next, Hacheney argues that (1) the trial court improperly commented on the evidence by
including the phrase "consciousness of guilt" in its limiting jury instruction on the jury's use of
evidence of Hacheney's sexual relationships following his wife's death and (2) the limiting
instruction violated his right to due process. Although we already considered the issue of whether
the trial court should be reversed for giving the limiting jury instruction and held that it should
not, Hacheney contests the jury instruction on different grounds in this petition.
On direct appeal, Hacheney unsuccessfully argued that the trial court erred by including
the phrase "consciousness of guilt" in its ER 404(b) limiting instruction. Hacheney, 2005 WL
1847160, at *7. We held that, even if the trial court erred, the jury would not have understood
consciousness of guilt to mean anything different from motive, thus any error was harmless within
reasonable probabilities. Hacheney, 2005 WL 1847160, at *7. Here, we consider whether the
trial court improperly commented on the evidence and whether the instruction violated
Hacheney's due process rights.
26
No. 39448-1-II
A. Comment on the Evidence
First, Hacheney asserts that the limiting jury instruction constituted a comment on the
evidence in violation of article IV, section 16 of the Washington State Constitution. He asserts
that the instruction "allows the jury to draw an impermissible and unwarranted inference. It fails
to contain necessary limiting language." PRP at 69.
"Judges shall not charge juries with respect to matters of fact, nor comment thereon, but
shall declare the law." Washington Const. art. IV, § 16. "It is error for a judge to instruct the
jury 'that matters of fact have been established as a matter of law.'" State v. Boss, 167 Wn.2d
710, 720, 223 P.3d 506 (2009) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321
(1997)). "[A]ny remark that has the potential effect of suggesting that the jury need not consider
an element of an offense could qualify as judicial comment." State v. Levy, 156 Wn.2d 709, 721,
132 P.3d 1076 (2006). Whether an instruction constitutes a comment on the evidence depends on
the facts and circumstances of each case. State v. Stearns, 61 Wn. App. 224, 231, 810 P.2d 41
(1991). Judicial comments on jury instructions are presumed prejudicial and the State has the
burden to show that the defendant was not prejudiced, unless the record affirmatively shows that
no prejudice could have resulted. Levy, 156 Wn.2d at 725.
The trial court gave the limiting jury instruction for the express purpose of limiting the
jury's use of testimony regarding Hacheney's sexual relationships with other women following
Dawn's death and the limiting instruction does not indicate the trial court's opinion concerning
the evidence presented at trial.
Further, the jury also received the following instruction:
The law does not permit a judge to comment on the evidence in any way.
A judge comments on the evidence if the judge indicates, by words or conduct, a
27
No. 39448-1-II
personal opinion as to the weight or believability of the testimony of a witness or
of other evidence. Although I have not intentionally done so, if it appears to you
that I have made a comment during the trial or in giving these instructions, you
must disregard the apparent comment entirely.
CP at 1342. We presume that the jury follows the trial court's instructions. State v. Sivins, 138
Wn. App. 52, 61, 155 P.3d 982 (2007). We hold that the limiting jury instruction was not an
impermissible comment on the evidence.
B. Due Process
Next, Hacheney asserts that the trial court violated his constitutional right to due process
by giving the limiting jury instruction because "Hacheney's sex life had no probative value to [the
issue of consciousness of guilt]," "the instruction was not clearly phrased as a permissive
inference," "no cautionary language was included in the instruction," the trial court "did not
further give an instruction on 'multiple hypothesis,'" the trial court "did not require the State to
prove the inference beyond a reasonable doubt," and the trial court "failed to give a corresponding
'consciousness of innocence' instruction." PRP at 68 (some capitalization omitted).
To prevail on a PRP, the petitioner must show that there was a constitutional error that
resulted in actual and substantial prejudice to the petitioner. Woods, 154 Wn.2d at 409. We
already held that, even if the trial court erred, the jury would not have understood consciousness
of guilt to mean anything different from motive, thus any error was harmless within reasonable
probabilities. Hacheney, 2005 WL 1847160, at *7. Hacheney fails to show that even if there was
a constitutional error, it resulted in actual and substantial prejudice.
VI. Ineffective Assistance of Counsel
Hacheney now argues that both his trial and his appellate counsel rendered ineffective
28
No. 39448-1-II
assistance of counsel. Hacheney contends that his trial counsel (1) failed to investigate "the
performance standards of the W[SP] Crime Lab[oratory]," PRP at 29 (some capitalization
omitted); (2) "failed to investigate and present an accurate timeline," PRP at 46 (capitalization
omitted); (3) failed to object to Dr. Selove's testimony that Dawn died when she was suffocated
with a plastic bag; (4) "failed to cross-examine Ms. Glass regarding her plan to kill her
husband,"20 PRP at 63 (some capitalization omitted); (5) "failed to request that the 'consciousness
of guilt' instruction include language stating that the inference was not mandatory, and that where
the evidence was susceptible of two equally valid constructions the jury must draw the inference
consistent with innocence," PRP at 68 (capitalization omitted); and (6) "failed to request a
corresponding 'consciousness of innocence' instruction," PRP at 68 (capitalization omitted).
Hacheney also asserts that his appellate counsel was ineffective for failing to assign error to Dr.
Selove's comment on direct appeal.
A. Standard of Review
In a PRP, the petitioner must satisfy the Strickland two-part test to succeed on a claim of
ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). A petitioner "must show that '(1) defense counsel's
representation was deficient, i.e., it fell below an objective standard of reasonableness based on
consideration of all the circumstances; and (2) defense counsel's deficient representation
prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's
unprofessional errors, the result of the proceeding would have been different.'" Davis, 152
20 Apparently, Glass planned to drive her car into a tree, causing the death of her husband, while
she and her children would survive the crash. RP (March 27, 2002) at 66. Glass later told
Hacheney that she was unable to kill her husband. RP (March 27, 2002) at 66.
29
No. 39448-1-II
Wn.2d at 672-73 (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)).
"Failure to raise all possible nonfrivolous issues on appeal is not ineffective assistance." In re
Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994).
B. Failure to Investigate WSTL
Hacheney argues that he received ineffective assistance of counsel when his defense
counsel failed to investigate "the performance standards" of the WSTL. PRP at 29 (capitalization
omitted). We disagree.
An attorney breaches his duty to a client if he fails "'to make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary.'" Davis, 152
Wn.2d at 721 (quoting Strickland, 466 U.S. at 690-91). "Not conducting a reasonable
investigation is especially egregious when a defense attorney fails to consider potentially
exculpatory evidence." Davis, 152 Wn.2d at 721. "'An attorney's action or inaction must be
examined according to what was known and reasonable at the time the attorney made his
choices.'" Davis, 152 Wn.2d at 722 (quoting Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th
Cir. 1995)).
Defense counsel did not fail to conduct a reasonable investigation based on the documents
Hacheney attaches in Appendix B because the attachments would not have been potentially
exculpatory in the present case. Here, many of the documents Hacheney attaches in his Appendix
B, specifically the state audits or reports and the writings of Dr. Logan, did not exist when
defense counsel represented Hacheney at trial, thus his counsel was not deficient for failing to
uncover those documents.
Furthermore, Hacheney himself argues that the documents in his Appendix B are "newly
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No. 39448-1-II
discovered evidence." PRP at 29 (capitalization omitted). Finally, the criticisms of individual
crime laboratory employees or general criticisms of crime laboratories and the criticisms of the
State's Breath Testing Program attached in Hacheney's Appendix B that were known at the time
of Hacheney's trial were not relevant to his case. None of the employees cited in the articles, or
in the motion to suppress evidence, handled evidence presented at Hacheney's trial. We hold that
his defense counsel cannot be deemed ineffective for failing to investigate these unrelated
incidents.
C. Failure to Investigate Timeline
Hacheney argues that he received ineffective assistance of counsel when defense counsel
"failed to investigate and present an accurate timeline." PRP at 46 (capitalization omitted). The
timeline was disputed at trial, with both the State and Hacheney producing evidence on the time
he must have left his home, when the fire started, and whether Hacheney could have been where
he claimed to be when the fire started.
The trial testimony showed that on December 26, 1997, Hacheney went duck hunting with
Latsbaugh and Martini; he met the two at the Hood Canal Bridge. RP at 581-82. At trial,
Detective Robert Davis testified that before trial, he drove, following the speed limit, from the
Hacheney house to Indian Island. RP at 2582. The drive took him 28 minutes from the house to
the Hood Canal Bridge. RP at 2584. It then took him 23 minutes to travel from the bridge to
Indian Island. RP at 2584-85. Davis did not drive to the hunting site or walk to the duck blinds.
RP at 2590.
At trial, Latsbaugh stated that the hunting party met at the Hood Canal Bridge between 7
am and 7:15 am. RP at 582. According to Latsbaugh, the ensuing drive from the bridge to Indian
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No. 39448-1-II
Island took approximately 25 minutes. RP at 584. Latsbaugh testified that when she, Martini,
and Hacheney arrived at the hunting blinds, it was light enough that they did not need flashlights.
RP at 796. Latsbaugh testified that she and Hacheney usually tried to arrive at their hunting spots
a couple minutes before daylight, when it was visible to shoot. RP at 581. She testified that they
usually arrived by actual sunrise and seldom arrived at the site by legal shooting time, because, at
legal shooting time, it was too dark to see the birds. RP at 699. On that date, legal shooting time
was at 7:28 am. RP at 795. Latsbaugh testified that sunrise occurs when the sun peeks over the
horizon. RP at 702. At trial, Martini, a witness for the State, testified that he arrived at the
hunting blinds with Hacheney and Latsbaugh a few minutes before dawn. RP at 541-42. Martini
testified that the hunters planned to meet at the bridge between 45 and 60 minutes before daylight,
and the drive to the island was between 30 and 45 minutes. RP at 513. Martini testified that,
when they arrived at the blinds, "[i]t was still a little bit dark but you could see the beginnings of
dawn." RP at 514.
Defense counsel impeached Latsbaugh with a defense investigator's testimony. RP at
4802, 4805.21 The defense investigator testified that Latsbaugh had stated in a pretrial interview
that she was in the shooting blinds between 5 and 10 minutes before "shooting light"; however,
the two did not discuss the difference between shooting light and legal shooting time. RP at
4808. Further, defense counsel criticized the State's timeline during closing argument. RP at
5101-04.
Defense expert Jim White testified that the fire began around 7:00 am and lasted for
21 This portion of the record refers to Lindsey Smith, but the record establishes that Lindsey Smith
is Lindsey Latsbaugh.
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No. 39448-1-II
approximately 20 minutes. See RP at 4598-99. Hacheney asserts, "[I]t was impossible for
Hacheney to have started the fire" because the fire began at 7:00 am and by then "[Hacheney] had
been gone from the house for over an hour." PRP at 55 (emphasis omitted).
According to the State's expert witness, fire investigator Scott Roberts, the fire could
have smoldered for hours, but burst into open flame, burned, and caused the heaviest amount of
damage to the Hacheneys' bedroom for an hour or less. RP at 3592-93. Hacheney's neighbors
reported the fire at 7:13 am, and firefighters extinguished the fire at approximately 7:25 am.22 RP
at 118-19. Thus, according to the State, the fire burst into open flame, at the earliest, around
6:25 am. The State argued, during closing argument, that Hacheney departed his home at 6:45
am. RP at 5028.
Now, in raising the issue of ineffective counsel with regard to a timeline of his actions on
the day Dawn died, Hacheney first asks us to review images from a webcam on December 24, 25,
and 26, 2009. This particular webcam did not exist until July 2006, so counsel could not have
been deficient by failing to introduce the photos into evidence. Br. of Resp't at 49 (citing Jeff
Chew, Go to www.cityofpt.us and take control of Port Townsend's new web cam, Peninsula Daily
News, August 1, 2006), available at
http://www.peninsuladailynews.com/apps/pbcs.dll/article - AID=2006608020306). Additionally,
the State asserts that "the camera is on a tower some 200 feet above sea level, while the hunters
were on a beach some 10 miles to the south. Plainly at an altitude of 200 feet, the horizon would
22 First responders arrived on the scene at 7:18 am. According to Joel Wulf, a responding
firefighter, suppression of the bedroom fire took seven to eight minutes. Dana Normandy,
another responding firefighter, also testified that he arrived "[w]ithin a couple minutes" of the first
responders, spent "no more than a couple minutes" conducting a primary search of the residence,
and entered the bedroom where "[t]he fire had been extinguished." RP at 984, 989, 990.
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No. 39448-1-II
appear further to the east, and dawn would be perceived earlier. As such, these photographs
cannot be considered to be relevant to the issue of the lighting conditions on the beach at Indian
Island." Br. of Resp't at 49. We reject Hacheney's invitation to view evidence bearing on this
disputed point when that evidence was not available to his counsel when his trial occurred. His
late-produced evidence does not suggest that his trial counsel in 2002 was ineffective for failing to
use a webcam showing the dawn of the day.
Hacheney also now alleges that on December 26, "[t]he first signs of daylight breaking
over the horizon . . . took place between 6:45 and 7:00 am. Civil twilight, where you can
distinguish objects, . . . took place at 7:22 am and sunrise . . . took place at 7:58 am." PRP at 52.
Hacheney also attaches other data relating to sunrise and the travel time from the house and the
hunting site: a photograph of the hunting site, taken on December 29, 2003, at 7:31 am; a
Google map, showing that the distance between Hacheney's house and Indian Island is 41 miles,
with a driving time of 1 hour and 13 minutes; and a digital video disc (DVD) recording of the
drive from the Hacheney home to the hunting blinds.23 PRP at 5054; PRP, App. D.
Hacheney argues,
The images presented [from the webcam] plainly show that from 6:45-7:00
am it is still dark but you can see the cracks of dawn on the horizon. There is
absolutely no possible way for the hunters to have arrived at the hunting blinds
when it was dark and a few minutes later see the cracks of dawn cover over the
horizon any later than 7:00 am.
23 The DVD reenacts the alleged timeline of the events that occurred on the morning of December
26, 1997. In the video, two men and a videographer travel in a car from the Hacheney home to
Indian Island, leaving at 6:45 am, according to the car's clock. The car makes several stops: (1)
at the location where Hacheney allegedly purchased coffee; (2) at the Hood Canal Bridge, where
Latsbaugh got into Hacheney's car; and (3) at the location where Hacheney and Martini parked at
the hunting blinds. According to the DVD, the drive and the walk to the hunting blinds took an
hour and fourteen minutes. However, the DVD assumes that Hacheney drove at or below the
speed limit. Further, at points in the video, the driver is "slowed by a school bus and traffic
moving below the speed limit." Br. of Resp't at 53.
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No. 39448-1-II
PRP at 51. According to Hacheney, an investigation would have revealed that he "left home at
5:56 a.m. -- at the latest." PRP at 55 (emphasis omitted).
But the additional evidence Hacheney presents with his PRP only demonstrates that, as at
his trial, conflicting evidence exists about the timeline and his whereabouts when the fire started,
but it does not conclusively demonstrate, as Hacheney asserts, that "[i]t was impossible for
Hacheney to have started the fire." PRP at 55 (emphasis omitted).
Further, on January 2, 1998, Hacheney told Safeco Insurance Company that he had left his
house on December 26, 1997, at 5:10 am. Even using Hacheney's newly submitted information
and considering his current argument, if Hacheney had left his home at 5:10 am, he would have
arrived at the hunting blinds around 6:30 am when it would have been too dark to walk to the
blinds without flashlights. As the State points out, "Counsel could well have determined that
making too much of the time issue would only have served to prove that his statements to the
insurance company and the police at the time of the murder had to have been false. He would
have then only reinforced the State's theme of guilty knowledge." Br. of Resp't at 55.
We hold that Hacheney's defense counsel's decision not to emphasize the timeline on the
morning of Dawn's death can be characterized as a legitimate trial tactic, thus it did not constitute
ineffective assistance of counsel.
D. Failure to Object to Dr. Selove's Testimony
Hacheney also argues that his trial and appellate counsel were ineffective because they
failed to object, or assign error, to Dr. Selove's testimony that Dawn died when she was
suffocated with a plastic bag. Hacheney asserts that Dr. Selove's expert testimony included an
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No. 39448-1-II
opinion that Glass, the woman who told investigators that Hacheney had suffocated his wife, was
credible.
"Because issues of credibility are reserved strictly for the trier of fact, testimony regarding
the credibility of a key witness may also be improper." City of Seattle v. Heatley, 70 Wn. App.
573, 577, 854 P.2d 658 (1993). But testimony that is not a direct comment on the defendant's
guilt or on a witness's credibility, that is helpful to the jury, and that is based on inferences from
the evidence, is not improper opinion testimony. Heatley, 70 Wn. App. at 578. Hacheney
mischaracterizes Dr. Selove's testimony and his counsel's performance. At trial, Dr. Selove
testified that Dawn died by suffocation with a plastic bag because
[t]he conditions of the fire scene were described as not one of a flash fire. I am
speaking of the fire investigative reports that I have reviewed. They are reports
that are stating an apparent arson occurred.
I am also considering alleged statements by Nicholas Hacheney made to
Sandra Glass about how he killed Dawn Hacheney. I am finding pulmonary edema
foam, that might be the only finding from a plastic bag asphyxia. I am finding
evidence of death before the fire began. These are the foundations for my opinion
and the reason I believe asphyxia by plastic bag suffocation occurred rather than
laryngospasm.
7 RP at 1417.
On cross-examination, defense counsel asked Dr. Selove, "So you've never been in
[Glass's] presence to try and judge her credibility about her version of events?" 8 RP at 1444.
Dr. Selove responded, "No, I have not." 8 RP at 1444. Defense counsel also asked Dr. Selove,
"Now, concerning the suffocation by a plastic bag, your basis for that opinion relies completely
and solely on the statements of Sandy Glass, is that right?" 8 RP at 1467. Dr. Selove responded,
"That's right." 8 RP at 1467. Defense counsel then asked, "So if you made a determination that
Sandy Glass was not credible, the statements about the plastic bag, would that change your
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No. 39448-1-II
opinion concerning the mode of suffocation?" 8 RP at 1467. Dr. Selove responded,
Yes. Then I would say asphyxia, not knowing if there had been initially
strangulation, a gag, what had caused the asphyxia. The use, in my opinion of
plastic bag, I have no independent way of knowing that from the autopsy report or
photographs. The only basis is the statement by Sandra Glass.
So I would generically just say asphyxia, if I did not have that statement
concerning the bag.
8 RP at 1467-68.
Dr. Selove did not make a direct comment on Hacheney's guilt or on Glass's credibility.
He admitted that if Glass was not credible, his opinion would change concerning the mode of
suffocation. RP at 1467. The jury had the role of deciding whether Glass was a credible witness
and whether Hacheney committed the offense. Even without Glass's statement, Dr. Selove
testified that his opinion remained that Dawn's death was caused by asphyxiation. RP at 1468.
Defense counsel did not perform deficiently when he failed to object to Dr. Selove's proper
testimony accordingly and even if Hacheney's trial counsel erred in failing to object, Hacheney
cannot show that the failure to object affected the verdict given that Hacheney's defense counsel
elicited clarifying responses from Selove that indicate he has no knowledge of Glass's credibility.
Davis, 152 Wn.2d at 672-73.
We also hold that Hacheney's appellate counsel was not ineffective for failing to raise this
issue on direct appeal because (1) the legal issue that Hacheney's appellate counsel failed to raise
lacked merit, as discussed previously, and (2) Hacheney fails to show he was actually prejudiced
by appellate counsel's failure to raise the issue. In re Pers. Restraint of Maxfield, 133 Wn.2d
332, 344, 945 P.2d 196 (1997).
E. Failure to Cross-Examine Glass
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No. 39448-1-II
Hacheney next argues that his counsel was ineffective because he "failed to cross-examine
Glass regarding her plan to kill her husband." PRP at 63 (some capitalization omitted). We
disagree.
When Glass told Hacheney of her plan, he indicated that he wanted to tell her what to do,
but that she should not expect him to help. RP (March 27, 2002) at 66. During the same
conversation, Hacheney commented that he now "felt like a man who just got his life back," a
comment that could be interpreted unfavorably by a jury. RP (March 27, 2002) at 67. Hacheney
was successful in suppressing these statements before trial under ER 403. RP (March 29, 2002)
at 4. When his defense counsel referenced Glass's plan in its opening statement, the State
objected. RP at 69. Defense counsel argued that the pretrial ruling did not cover Glass's plan;
the trial court agreed, but ruled that no further reference to Glass's plan should be made without
another offer of proof. RP at 106-07. Hacheney now argues that his counsel was ineffective for
failing to cross-examine Glass regarding her plan.
Decisions about questions to ask witnesses are tactical. At one point during trial, defense
counsel stated,
I think it certainly does tarnish her as a witness. It was more than just a thought.
She actually had a specific plan in which to kill her husband, and on one specific
day was actually, was contemplating taking that step to actually do it.
I would say at this point in time, though, I would agree with the [S]tate to
leave that out. Just obviously again I would raise the issue again depending on
what her testimony might be on direct, on whether or not I thought that was a
necessary area to go into.
11 RP at 2157. Clearly, the issue was discussed and defense counsel made a strategic decision
not to question Glass about her plan to murder her husband after her direct examination. One
possible reason for the defense counsel's decision is that cross-examining Glass about her plan
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No. 39448-1-II
could have supported the State's theory of the case that Hacheney killed his wife so that he would
be free to pursue relationships with other women, including Glass. Furthermore, eliciting this
information about Glass's plan could have opened the door to Hacheney's own incriminating
statements that he successfully moved to suppress under ER 403. Finally, defense counsel did
attack Glass's credibility during cross-examination, including questioning Glass about another
prior prophecy in 1992 that her husband would die and questioning her extensively about whether
she can distinguish between statements from God and her general thoughts.
Therefore, we conclude that defense counsel's failure to cross-examine Glass on her
alleged plan to kill her husband did not constitute ineffective assistance.
F. Failure to Object to ER 404(b) Instruction
Hacheney also argues that his counsel should have requested "that the 'consciousness of
guilt' instruction include language stating that the inference was not mandatory, and that where
the evidence was susceptible of two equally valid constructions the jury must draw the inference
consistent with innocence." PRP at 68 (capitalization omitted). We held in Hacheney's direct
appeal that, even if the trial court erred by including the phrase "consciousness of guilt" in its jury
instruction, any error was harmless within reasonable probabilities. Hacheney, 2005 WL 1847160
at *7. Accordingly, Hacheney's ineffective assistance of counsel claim on this issue fails for lack
of prejudice.
G. Failure to Request "Consciousness of Innocence" Instruction
Finally, Hacheney argues that his counsel was ineffective for failing "to request a
corresponding 'consciousness of innocence' instruction" to accompany the "consciousness of
guilt" instruction. PRP at 68 (capitalization omitted). Hacheney cites Commonwealth v. Porter,
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No. 39448-1-II
384 Mass. 647, 654 n.10, 429 N.E.2d 14 (1981), in support of this proposition. Porter, however,
does not support his proposition that counsel should request a "consciousness of innocence"
instruction to accompany a "consciousness of guilt" instruction. Instead, Porter merely
transcribes a trial court judge's discussion with the jury regarding the "consciousness of guilt"
instruction; the trial judge said in relevant part, "[s]o it is for you to determine upon the evidence
whether this defendant was conscious of guilt of a crime with which he is now charged, or
whether his conduct was indicative of innocence or at least consistent with innocence." 384
Mass. at 654 n.10. Because Porter does not support Hacheney's proposition that counsel erred in
failing to request an accompanying "consciousness of innocence" instruction, and because he fails
to cite to any other supporting authority, we decline to consider Hacheney's ineffective assistance
of counsel claim on this issue. RAP 10.3(a)(6).
VII. Cumulative Error
Finally, Hacheney argues that he is entitled to a new trial under the cumulative error
doctrine. Cumulative error may warrant reversal, even if each error standing alone would
otherwise be considered harmless, when the errors combined denied the defendant a fair trial.
State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006); State v. Greiff, 141 Wn.2d 910, 929,
10 P.3d 390 (2000). The defendant bears the burden of proving an accumulation of error of
sufficient magnitude that retrial is necessary. State v. Yarbrough, 151 Wn. App. 66, 98, 210 P.3d
1029 (2009).
40
No. 39448-1-II
We hold that Hacheney's claims fail to satisfy his burden to prove that he was denied a fair
trial and that the interests of justice demand remand for trial, thus we deny his petition.
VAN DEREN, J.
I concur:
JOHANSON, J.
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No. 39448-1-II
Penoyar, C.J. (concurrence) -- I write separately only in relation to our dicta on the
confrontation clause. I agree with the majority's conclusion that exactly what is "testimonial" is
far from clear, and I find the majority's discussion of how that issue might be clarified to be very
insightful and persuasive. But, in recent years, I have been surprised enough by developments in
this area of the law that I am not comfortable saying where this boat might be headed.
Penoyar, C.J.
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