Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,
                             Respondent,                         No.  41307-8-II

       v.                                                PART PUBLISHED OPINION

KEITH RAGNER BERLIN,
                             Appellant.

       Van Deren, J.  --  Keith Berlin appeals his conviction for first degree assault and the trial 

court's imposition of domestic violence and firearm sentence enhancements.  He argues (1) we 

should vacate his enhanced sentence based on a Bashaw1 instructional error and (2) we should 

reverse and remand for a new trial because the trial court violated his constitutional right to 

confront adverse witnesses by limiting the scope of cross-examination of one witness and denying 

Berlin's offer of testimony from another witness.  We hold that Berlin may not raise the issue of 

instructional error under Bashaw for the first time on appeal and that the confrontation clause 

violation, if any, was harmless error.  We affirm.

                                            FACTS

       Berlin and Jacob Griffith began living together in Berlin's mother's small mobile home in 

October 2009.  On February 15, 2010, according to Griffith, he awoke around 6:00 p.m., walked 

1 State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010).   

No.  41307-8-II

into the kitchen, and saw Berlin sitting at a desk while speaking on the telephone.  When Berlin 

hung up, the two had an "exchange of words," and Berlin went into his bedroom and closed the 

door.  Report of Proceedings (RP) at 84-85.  Griffith, thinking Berlin's behavior was odd, 

followed him, knocked on the bedroom door, and asked what was wrong.  Without opening the 

door, Berlin replied that Griffith had been rude and inconsiderate because he had interrupted 

Berlin's telephone call.  

       Griffith returned to the living room, sat down on a couch, and called his girlfriend, Erika 

Delgado.  He told her that something was wrong with Berlin and concluded the conversation 

when Berlin walked into the room.  Berlin "glared" at Griffith and again accused him of being 

rude and disrespectful and Griffith returned the sentiment.  Berlin, who appeared angry and 

intoxicated, threatened to call Griffith's grandmother and tell her "how sorry of a person" Griffith 

was, and then Griffith threatened to call Berlin's mother.  RP at 88.  After the two agreed not to 

make the telephone calls, Berlin told Griffith, "'Just leave me alone . . . I'm going to sleep it off,'"

went back into his room, and closed the door.  RP at 89.  

       Griffith telephoned Delgado a second time, told her about his difficulties with Berlin, and 

asked if he could move in with her.  Berlin came back into the living room and angrily accused 

Griffith of calling Berlin's mother; Griffith responded that he had called only Delgado.  Berlin 

demanded that Griffith move out and, when Griffith told him that he was arranging to do that but 

could not leave that night, Berlin insisted that he leave immediately.  Griffith threatened to call 

Berlin's mother and ask for permission to stay another night, the two continued to argue, and 

Berlin again returned to his room.  

       Soon after, Berlin exited the mobile home and went to his car.  Griffith warned Berlin not 

                                               2 

No.  41307-8-II

to drive because he was intoxicated, and the two continued to argue until Berlin came back inside.  

Griffith grabbed Berlin by the shoulders, asked him what was wrong, and hugged him in an 

attempt to calm him down.  The two embraced for a moment before Berlin shoved Griffith away, 

warned Griffith never to touch him again, and threatened to call the police.  

       Griffith returned to the couch, called Delgado a third time, and told Berlin that he was 

leaving that night and that Delgado would pick him up the next morning.  When Berlin expressed 

disbelief, Griffith enabled his cell phone's speaker phone function and Griffith asked Delgado if 

she was willing to take him in despite Berlin's claim that he had "laid hands" on Berlin; Delgado 

said she was and that she would pick Griffith up the next morning.  RP at 98.  Berlin said, 

"Okay," and left the room.  RP at 99.

       Griffith, who remained on the couch speaking with Delgado on the telephone, saw 

movement three to four feet away and heard a "pow" or "bam" sound.  RP at 100.  Berlin shot 

Griffith in the right side of his face with a .22 caliber rifle loaded with birdshot.  Berlin dropped 

the rifle at the foot of the couch; he stood over Griffith while brandishing a pocketknife and said, 

"'I'm going to stab you.  I'm going to cut you.  I'm going to kill you.'" RP at 102.  Hearing 

Delgado screaming over the telephone, Griffith shouted for her to call the police and fled the 

residence.  Delgado's subsequent recitation of the evening's events was consistent with Griffith's.  

       Berlin's account of the night's events substantially differed from Griffith's and Delgado's.  

According to Berlin, earlier that morning he had angered Griffith because he told Griffith that he 

would no longer purchase methamphetamine for them both and Griffith felt it was unfair that 

Berlin would purchase alcohol for himself but would not purchase methamphetamine they both 

could use.  That evening, Berlin was sitting at his desk and drinking whiskey.  After Griffith came 

                                               3 

No.  41307-8-II

into the room, Griffith became "increasingly agitated" because Berlin was drinking.  RP at 321.  

Suddenly, he stood right beside Berlin and said, "'I'll kill you.'" RP at 321.  

       Although Berlin did not immediately feel threatened because he and Griffith had "joked 

around in the past," he told Griffith to move out that night.  RP at 322.  Griffith told him that he 

could not do so, the argument "escalated," and Berlin told Griffith to ask Delgado if he could stay 

with her. RP at 324.  After Griffith called Delgado, Griffith reiterated to Berlin that he could not 

move out that night.  Berlin again demanded that he do so, and Griffith said, "I could kill you."  

Berlin felt fearful after this second threat because Griffith was "very agitated"; he had "a look in 

his eye that [Berlin] didn't like"; he had told Berlin in the past that he had "Navy SEAL training";

and he was bigger, stronger, and in better health than Berlin.  RP at 327, 329.  Berlin admitted 

that he "[m]ay have been" too intoxicated to drive and that he "may have" smoked marijuana that 

evening.  RP at 352.  

       Berlin told Griffith to call Delgado again, and he did so.  Griffith then put Berlin on 

speaker phone; Berlin asked Delgado whether she wanted Griffith living with her when he had 

threatened Berlin's life, and she said, "'Yeah.'" RP at 326.  While Griffith continued speaking 

with Delgado, Berlin went into the bathroom; when he came out, Griffith grabbed him by the 

shoulders and told him that if he "tried to call [Berlin's] family, [Griffith's] family, or 9-1-1 that 

[Griffith] could get to [him] before they got there." RP at 332.  Griffith released him and then 

went into the living room, where he sat on the couch and resumed speaking with Delgado.  

       Berlin felt that his life was in danger at this point due to the repeated threats; Griffith's 

agitated demeanor; and his "height advantage, size, youth, strength, [and] his training." RP at 

332.  Berlin stated that he retrieved the .22 rifle, took a few steps into the room, and shot Griffith 

                                               4 

No.  41307-8-II

without warning from six feet away because he feared Griffith would take the rifle away and use it 

on him if he called out or got too close.  Berlin intended to disable Griffith, so he aimed for 

Griffith's shoulder, but he shot him in the face because Griffith turned toward him as he fired the 

gun.  He then stood over Griffith with a pocketknife and said, "'Get out, and don't make me 

finish it.'" Griffith then fled the mobile home.  Berlin did not observe that Griffith was armed at 

any time during the evening.  

       Griffith suffered "a number of very small puncture wounds to the face" and lost some 

vision in his eye.  RP at 61.  A number of the birdshot pellets penetrated the inner and outer bones 

of the sinus cavity beneath his eye, and a few crossed the nasal septum.  The pellets could have 

penetrated to Griffith's brain or severed arteries and veins in his neck, possibly resulting in fatal 

infection or blood loss.  

       Griffith required plastic surgery to repair his face and multiple procedures to remove as 

many of the pellets as possible from his face and eye.  Over 200 pellets remained in his face, and 

some could not be removed without causing further damage.  Forensic evidence showed that 

Berlin shot Griffith from a distance of two to four feet.  

       The State charged Berlin with attempted second degree murder and first degree assault, 

with firearm and domestic violence enhancements on each count.  Before trial, the State moved to 

preclude Berlin from introducing an out-of-court statement written by Berlin's now-deceased 

mother, Evelyn Berlin.  

       According to Evelyn's2 statement, Griffith called her twice on April 25, 2010, after Berlin 

was charged, and offered to "sign a statement saying he would not ask for the maximum sentence 

2 We refer to Evelyn Berlin by her first name for clarity.  We mean no disrespect.  
                                               5 

No.  41307-8-II

and would not pursue a civil suit against [Berlin]" in exchange for $1,500.  Ex. 55, at 1.  Her 

statement also recited that, on May 14, Griffith called her again, asked for $1,000, and stated that 

he could "either say [Berlin] didn't know the gun was loaded and shot him by accident" or Berlin 

"deliberately shot him then attacked him with a knife." Ex. 55, at 2.  The statement also said that 

Evelyn never accepted Griffith's offer, that her daughter was present during one call, and that her 

granddaughter was present during the other.  

       Berlin argued that the written statement provided a "good faith basis to inquire of . . . 

Griffith whether he in fact solicited [Evelyn] for money in order to change or shape his 

testimony." RP at 28.  The trial court reserved its ruling until it could examine Griffith outside 

the presence of the jury, stating:

       [T]here's no way . . . to substantiate [whether Griffin solicited Evelyn] since 
       [Evelyn] is now deceased.  And I believe it would be inappropriate to suggest to 
       the jury that a witness is willing to sell his testimony without the ability to 
       substantiate such a suggestion or an ability to rebut or disprove it. . . . [I]f you 
       look at the rules in regard to impeachment and -- on bias and so forth that if you're 
       using . . . extrinsic evidence of a prior act to do that, then if a witness gets up and 
       says, no, it didn't happen, that's the end of the inquiry, at least on impeachment 
       purposes.

RP at 50-51.  Before Griffith testified at trial, the trial court examined him outside the presence of 

the jury and he denied making the statements set out in the proffered letter.  Over Berlin's 

objection, the trial court prohibited him from cross-examining Griffith about the writing 

containing Evelyn's statements.  

       On the third day of trial, Berlin notified the trial court that his cousin, Robert Haines, had 

visited Evelyn in May during one of Griffith's calls.  Berlin offered evidence that, according to 

Haines, Evelyn had hearing problems and had Haines listen to the call, during which Griffith 

                                               6 

No.  41307-8-II

offered -- in exchange for $1,500 -- to alter his testimony and to state that Berlin did not intend to 

shoot or to hurt him and that a sentence of three to five years would be appropriate.  

       The trial court prohibited Haines from testifying on the subject, reasoning (1) Evelyn's 

written statement did not mention Haines' presence during any of the calls; (2) Haines' proposed 

testimony was not relevant because it appeared to refer to Griffith's April 15 call offering 

settlement of a potential civil suit and a recommendation of leniency, not alteration of his 

testimony; and (3) Haines was disclosed as a witness very late in the trial and after the parties had 

excused Griffith from the proceedings.  The trial court allowed Haines to testify at trial on other 

matters.  

       Jury instruction 12 provided, "A person commits [first degree assault] when, with intent to 

inflict great bodily harm, he or she assaults another with a firearm or with any deadly weapon or 

by any force or means likely to produce great bodily harm or death."  Clerk's Papers (CP) at 46.  

Jury instruction 14 defined "[g]reat bodily harm" as "bodily injury that creates a probability of 

death, or that causes significant serious permanent disfigurement, or that causes a significant 

permanent loss or impairment of the function of any bodily part or organ." CP at 48.  Jury 

instruction 15 stated that "[a] firearm, whether loaded or unloaded, is a deadly weapon." CP at 

49.3  

3 We recite the pertinent jury instructions for later reference.  Jury instruction 25, the assault self 
defense instruction, provided: 
              The use of force upon or toward the person of another is lawful when used 
       by a person who reasonably believes that he is about to be injured in preventing or 
       attempting to prevent an offense against the person, and when the force is not 
       more than is necessary.
              The person using the force may employ such force and means as a 
       reasonably prudent person would use under the same or similar conditions as they 
       appeared to the person, taking into consideration all of the facts and circumstances 
       known to the person at the time of and prior to the incident.
                                               7 

No.  41307-8-II

       The jury returned a guilty verdict on the first degree assault charge.  It also returned 

special verdicts finding that (1) Berlin was armed with a firearm when he assaulted Griffith and (2) 

Berlin and Griffith were members of the same household.  When polled by the trial court, the jury 

was unanimous in its special verdict findings.  At sentencing, the trial court imposed a standard 

range sentence of 153 months, including a 60-month firearm enhancement.  Berlin appeals.  

                                          ANALYSIS

                             Special Verdict Unanimity Instruction

       Citing Bashaw, Berlin argues for the first time on appeal that the trial court erred in 

instructing the jury that it must be unanimous to return a "Yes" or "No" answer on a special 

verdict about whether he committed a crime while armed with a firearm and whether he and 

Griffith were members of the same household, and that this error requires reversal of his firearm 

and domestic violence sentence enhancements.  We hold that Berlin may not raise this issue for 

the first time on appeal.  State v. Grimes, 165 Wn. App. 172, 175, 267 P.3d 454 (2011), petition 

CP at 59.  Jury instruction 29 provided:
       If you find [Berlin] guilty of these crimes, you will then use the Special Verdict 
       Forms and fill in the blanks with the answer "Yes" or "No"' according to the 
       decision you reach.  Because this is a criminal case, all twelve of you must agree in 
       order to answer the Special Verdict Forms. In order to answer the Special Verdict 
       Forms "Yes," you must unanimously be satisfied beyond a reasonable doubt that 
       "Yes" is the correct answer.
CP at 64.  Jury instruction 30 stated, "For purposes of a special verdict, the State must prove 
beyond a reasonable doubt that [Berlin] was armed with a firearm at the time of the commission 
of the crime in Counts I or II.  A 'firearm' is a weapon or device from which a projectile may be 
fired by an explosive such as gunpowder." CP at 65.  Finally, jury instruction 31 provided, "For 
purposes of this case, 'family or household members' means adult persons who are presently 
residing together or who have resided together in the past." CP at 66.  

                                               8 

No.  41307-8-II

for review filed, No. 86869-7 (Wash. Jan. 3, 2012).

       RAP 2.5(a)(3) provides, "The appellate court may refuse to review any claim of error 

which was not raised in the trial court.  However, a party may raise the following claimed error[ ] 

for the first time in the appellate court: . . . manifest error affecting a constitutional right."

       A.  Berlin's Alleged Error Not "Constitutional"

       Here, the jury received a special verdict instruction substantially similar to the erroneous 

jury instruction the Bashaw jury received, "Because this is a criminal case, all twelve of you must 

agree in order to answer the Special Verdict Forms." CP at 64; see also 169 Wn.2d at 139.  

Division One and Division Three of this court recently held that unanimous "no" special verdict 

jury instructions held erroneous under Bashaw do not constitute constitutional error that 

defendants can raise for the first time on appeal under RAP 2.5(a)(3).  State v. Morgan, 163 Wn. 

App. 341, 352-53, 261 P.3d 167 (2011), petition for review filed, No. 86555-8 (Wash. Oct. 3, 

2011); State v. Nunez, 160 Wn. App. 150, 158-60, 164-65, 248 P.3d 103, review granted, 172 

Wn.2d 1004 (2011); but see State v. Ryan, 160 Wn. App. 944, 948-49, 252 P.3d 895, review 

granted, 172 Wn.2d 1004 (2011).4 We also recently reached the same holding.  Grimes, 165 Wn. 

App. at 175.  Accordingly, we hold that Berlin may not raise this error for the first time on appeal 

because it is not constitutional in nature. 

       B.  Berlin's Alleged Error Not "Manifest"  

       But even if our Supreme Court ultimately holds in Ryan and Nunez that this particular 

4 In August 2011, our Supreme Court granted review in Nunez and Ryan and consolidated them.  
Grimes, 165 Wn. App. at 184 n.13.  The Supreme Court stayed Morgan and State v. Campbell, 
163 Wn. App. 394, 404, 260 P.3d 235 (2011), petition for review filed, No. 86593-1 (Wash. Oct. 
12, 2011) pending resolution of Nunez and Ryan. We discuss Campbell later in this opinion.

                                               9 

No.  41307-8-II

instructional error is based on constitutional protections, in Berlin's case it is not "manifest."5 For 

an error to be "manifest," the defendant must show that the asserted error had practical and 

identifiable consequences at trial.  State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).  

To ascertain whether the trial court could have corrected the error given its knowledge at the 

time, the appellate court must place itself in the trial court's shoes when determining if the alleged 

error had practical and identifiable consequences.  State v. O'Hara, 167 Wn.2d 91, 100, 217 P.3d 

756 (2009).  

       In Grimes, we held that the instructional error could not have had a practical and 

identifiable consequence at trial because (1) "unlike Bashaw, Grimes did not cast doubt on the 

existence of the evidence supporting the imposition of the sentence enhancement on the record at 

trial," (2) "unlike in [State v.] Goldberg, [149 Wn.2d 888, 891-892, 894, 72 P.3d 1083 (2003)], 

the record d[id] not show that the jury disagreed about whether the sentence enhancement was 

prove[n] beyond a reasonable doubt," and (3) "Grimes's jury was not instructed to deliberate to 

unanimity after first returning a verdict that was not unanimous on the sentence enhancement."  

Grimes, 165 Wn. App. at 189-190.

       As in Grimes, Berlin does not cast doubt on the existence of the evidence supporting the 

domestic violence and firearm sentence enhancements.  His testimony established that he used a 

rifle to shoot Griffith, who lived with him and was, thus, a member of the same household.  

       Further, the record shows that the jury unanimously agreed during polling that the State 

had proved the factual basis of the sentence enhancements beyond a reasonable doubt and, thus, 

5 We address whether the error Berlin asserts is "manifest" under RAP 2.5(a)(3) because our 
analysis will serve as an alternative basis for ruling that Berlin does not meet the test for raising 
this error for the first time on appeal, even if our Supreme Court ultimately holds that this type of 
instructional error is constitutional.
                                               10 

No.  41307-8-II

there was no instruction to deliberate until unanimous after first returning a verdict that was not 

unanimous on the enhancements, as in Goldberg.  Accordingly, Berlin fails to demonstrate a 

"manifest" constitutional error capable of review for the first time on appeal under RAP 2.5(a)(3).  

       C.  Berlin's Alleged Error Is "Harmless"

       Because the instructional error that Berlin challenges for the first time on appeal is not 

manifest, we need not address whether, in the context of the entire record, the error is harmless 

beyond a reasonable doubt.  O'Hara, 167 Wn.2d at 99.  But again, in light of the Supreme 

Court's consolidated review of Nunez and Ryan, we address this issue.  Accord Grimes, 165 Wn. 

App. at 184 n.13.  Assuming without deciding that the instructional error was constitutional in 

nature, the error was harmless if we find beyond a reasonable doubt that it did not contribute to 

the verdict obtained.  State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002).

       In a recent Division One case, State v. Campbell, 163 Wn. App. 394, 404, 260 P.3d 235 

(2011), petition for review filed, No. 86593-1 (Wash. Oct. 12, 2011), the State argued that a 

Bashaw special verdict instructional error was harmless based on the strength of the evidence 

supporting the jury's special verdict.  The Division One panel, however, rejected this approach in 

a split decision, holding that "Supreme Court decisions -- and simple logic -- make clear that 

neither the strength of the State's evidence nor the jury's findings on a general verdict can 

substitute for a properly instructed jury's determination on a special verdict regarding sentence 

enhancements."  Campbell, 163 Wn. App. at 406. 

       In support of its holding, the Campbell majoritycited State v. Recuenco, 154 Wn.2d 156, 

159, 110 P.3d 188 (2005), rev'd and remanded, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 

466 (2006), aff'd, 163 Wn.2d 428, 180 P.3d 1276 (2008) and State v. Williams-Walker, 167 

                                               11 

No.  41307-8-II

Wn.2d 889, 893-94, 225 P.3d 913 (2010).  Campbell, 163 Wn. App. at 404-06.  But, as the 

dissenting opinion correctly observed, those were cases in which the trial court erroneously 

imposed firearm sentence enhancements after the jury returned a special verdict that the defendant 

was armed with a deadly weapon, thus supporting only imposition of a lesser deadly weapon 

enhancement.6  Campbell, 163 Wn. App. at 410-11 (Appelwick, J., dissenting).  Thus, "[t]he 

question in those cases was whether the [trial] court had the authorityto enter its verdict without 

a jury finding."  Campbell, 163 Wn. App. at 411.  In contrast, the question in Bashaw special 

verdict instruction cases is whether we can conclude beyond a reasonable doubt and in the context 

of the entire record that the instructional error did not contribute to the jury's special verdict 

finding.  

       The Campbell majorityalso relied on our Supreme Court's focus on the "'flawed 

deliberative process'" caused by the erroneous special verdict jury instruction.  Campbell, 163 

Wn. App. at 404 (quoting Bashaw, 169 Wn.2d at 147).  Although the Campbell majoritystated 

that this focus "allow[s] for the theoretical possibility of harmless error in this context," it later 

concluded that "being told the wrong thing . . . is not harmless, as Bashaw makes clear." 163 

Wn. App. at 404, 406.  

       In Grimes, we acknowledged that the Bashaw court "suggest[ed], but d[id] not hold, that 

an erroneous unanimous special verdict instruction cannot be deemed harmless beyond a 

reasonable doubt because the instructional error affects the procedure by which unanimity would 

6 In fact, the Williams-Walker court expressly stated that harmless error analysis did not apply to 
the errors in that case and in Recuenco because the trial courts' errors "occurred in the sentencing 
phase," not during trial or in the jury instructions, findings, or verdicts.  167 Wn.2d at 901.  If 
anything, Williams-Walker undermines, not supports, the Campbell court's reasoning.  

                                               12 

No.  41307-8-II

be achieved."  165 Wn. App. at 190 (citing Bashaw, 169 Wn.2d at 147-48).  But we cannot 

divorce the focus on the "flawed deliberative process" in our analysis of these instructional errors 

from the context of the entire record, including the State's evidence.  If we focused only on the 

"flawed deliberative process," then this error would automatically require reversal in every case in 

which the jury receives the flawed special verdict instruction.  Thus, the error could never be 

harmless, i.e., it would be a "structural"7 error.  State v. Jennings, 111 Wn. App. 54, 62-63, 44 

P.3d 1 (2002).  The Bashaw court, however, did not hold that an erroneous unanimous special 

verdict instruction was structural error; instead, it applied harmless error analysis.  169 Wn.2d at 

147.  Thus, despite any contrary suggestions in Bashaw and Campbell, under harmless error 

analysis, we must consider the effect of the "flawed deliberative process" in the context of the 

entire record, including the State's evidence.  See O'Hara, 167 Wn.2d at 99.   

       For example, in Bashaw, the jury heard no properly admitted, direct evidence establishing 

the necessary distance for the three alleged school bus route stop enhancements.  169 Wn.2d at 

138, 143; see also Grimes, 165 Wn. App. at 191 (stating the same).  The only properly admitted 

evidence the jury heard regarding the necessary distance was either indirect or conflicting, thus 

casting doubt on the procedure by which the jury achieved unanimity on the special verdicts.  See 

Bashaw, 169 Wn.2d at 138-39; see also Grimes, 165 Wn. App. at 191.  In contrast, because 

7 A "'structural'" error not subject to harmless error review is a "'defect affecting the framework 
within which the trial proceeds, rather than simply an error in the trial process itself.'"  Neder v. 
United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (internal quotation marks 
omitted) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 
(1991)).  "An error is structural when it 'necessarily render[s] a criminal trial fundamentally unfair 
or an unreliable vehicle for determining guilt or innocence.'"  State v. Momah, 167 Wn.2d 140, 
149, 217 P.3d 321 (2009) (internal quotation marks omitted) (quoting Recuenco, 548 U.S. at 218-
19), cert. denied, 131 S. Ct. 160 (2010).  Only in a very limited number of cases are errors 
"structural" and, thus, subject to automatic reversal.  Neder, 527 U.S. at 8. 
                                               13 

No.  41307-8-II

Grimes did not challenge the uncontroverted evidence that his crime occurred the necessary 

distance from a school bus route stop, we concluded that the procedure by which the jury 

achieved unanimity was harmless beyond a reasonable doubt.  Grimes, 165 Wn. App. at 191.  

       Like Grimes, Berlin does not challenge the uncontroverted evidence that he shot Griffith, 

his roommate, in the face with a rifle.  His testimony established both facts.  Thus, the procedure 

by which the jury unanimously found that Berlin was (1) armed with a firearm when he assaulted 

(2) a member of the same household was harmless beyond a reasonable doubt.

       We hold that Berlin fails to demonstrate either a "constitutional" or "manifest" error under 

RAP 2.5(a)(3), as he offered no evidence that it had practical and identifiable consequences at his 

trial.  Thus, this error was not preserved for appeal and it is not subject to review for the first time 

on appeal.  Nevertheless, for completeness, we have reviewed the entire record on appeal and 

hold that any such error was harmless beyond a reasonable doubt in the context of Berlin's trial as 

it did not affect his rights at trial or the jury's verdict.

       A majority of the panel having determined that only the foregoing portion of this opinion 

will be printed in the Washington Appellate Reports and that the remainder shall be filed for 

public record pursuant to RCW 2.06.040, it is so ordered.

                                    Right To Confrontation

       Berlin also argues that the trial court violated his constitutional right to confront witnesses 

with impeachment evidence of bias when it precluded Haines' testimony and Berlin's cross-

examination of Griffith about Griffith's alleged offers to Evelyn to change his testimony in 

exchange for money.  We hold that the trial court did not abuse its discretion in limiting Berlin's 

proffered evidence.  Moreover, even if it did abuse its discretion, failure to admit the evidence was 

                                               14 

No.  41307-8-II

harmless. 

       The Sixth Amendment's confrontation clause guarantees a defendant the opportunity to 

confront the witnesses against him through cross-examination.  State v. Fisher, 165 Wn.2d 727, 

752, 202 P.3d 937 (2009).  But the right to cross-examine witnesses is not absolute.  State v. 

Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).  "The trial court retains the authority to set 

boundaries regarding the extent to which defense counsel may delve into the witness's alleged 

bias 'based on concerns about, among other things, harassment, prejudice, confusion of the issues, 

the witness' safety, or interrogation that is repetitive or only marginally relevant.'"  Fisher, 165 

Wn.2d at 752 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed.

2d 674 (1986)).

       A defendant has a right to confront adverse witnesses with bias evidence if the evidence is 

at least minimally relevant.  Fisher, 165 Wn.2d at 752.  Bias refers to "the relationship between a 

party and a witness which might lead the witness to slant, unconsciously or otherwise, his 

testimony in favor of or against a party."  United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 

83 L. Ed. 2d 450 (1984).  A defendant may establish bias through cross-examination or by 

introducing extrinsic evidence, including third party testimony.  Abel, 469 U.S. at 49.  "A 

defendant enjoys more latitude to expose the bias of a key witness."  Fisher, 165 Wn.2d at 752.  

       We review a trial court's ruling on the scope of cross-examination for manifest abuse of 

discretion.  Fisher, 165 Wn.2d at 752.  A trial court abuses its discretion when it bases its 

decision on unreasonable or untenable grounds.  State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 

86 (2009).  Moreover, we review confrontation clause violations under the constitutional 

harmless error test.  State v. Koslowski, 166 Wn.2d 409, 431, 209 P.3d 479 (2009).  A 

                                               15 

No.  41307-8-II

confrontation clause violation is harmless if "the untainted evidence is so overwhelming that it 

necessarily leads to a finding of the defendant's guilt."  Koslowski, 166 Wn.2d at 431.    

       Here, even if the trial court had admitted the evidence of Griffith's alleged bias and the 

jury believed Berlin's account instead of Griffith's, jury instruction 25 provided that self-defense 

was lawful when the force used was no more than was necessary and the force and means used 

were what "a reasonably prudent person would use under the same or similar conditions." CP at 

59.  Berlin's own testimony established that he committed the crime of first degree assault in a 

domestic violence situation and that he used a firearm.  He testified that, while intoxicated and 

possibly under the influence of marijuana, he intentionally shot Griffith without warning based on 

Griffith previously threatening him and grabbing him by the shoulders.  According to Berlin, when 

he shot Griffith, Griffith was unarmed, sitting on the couch, and speaking on the telephone.  He 

then pulled out a pocketknife and told Griffith to leave immediately.  Further, forensic evidence 

established that Berlin shot Griffith from a distance of two to four feet.  Thus, the overwhelming 

untainted evidence from Berlin himself about how the incident itself occurred plus the 

unchallenged forensic evidence necessarily established that Berlin used excessive, unreasonable, 

and, thus, unlawful force in allegedly defending himself against Griffith.  

       Furthermore, jury instructions 12 and 14 provided that Berlin was guilty of first degree 

assault if he assaulted Griffith with intent to cause "great bodily harm," i.e., "bodily injury that 

creates a probability of death, or that causes significant serious permanent disfigurement." CP at 

46, 48.  Intent to kill can be inferred from a defendant firing a gun at a victim.  State v. Hoffman, 

116 Wn.2d 51, 84-85, 804 P.2d 577 (1991).  

       The untainted evidence established not only that Berlin shot Griffith, but also that he did 

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No.  41307-8-II

so from the extremely close range of two to four feet while Griffith was unarmed, non-

threatening, and sitting on the couch talking on the telephone.  Thus, the evidence 

overwhelmingly established that Berlin shot Griffith with intent to kill or otherwise cause "great 

bodily harm." And, based on the medical evidence of the numerous injuries caused Griffith by the 

pellets in his face and eye, the jury could reasonably conclude that Berlin caused him great bodily 

harm.  

       Accordingly, the trial court ultimately did not abuse its discretion in limiting Berlin's cross-

examination of Griffith and in limiting Haines' testimony as such evidence had no relevance to the 

facts of the incident as testified to by Berlin and the forensic evidence.  Any violation of Berlin's 

confrontation rights was harmless in light of the overwhelming evidence.  His claim fails.  

       We hold that Berlin may not raise the issue of instructional error under Bashaw for the 

first time on appeal, that the claimed confrontation clause violation fails, and that even if the 

limitation on cross-examination of Griffith's and the limitation on Haines' testimony impaired 

Berlin's right of confrontation, any such impairment was harmless.  

                                                 Van Deren, J.
We concur:

Worswick, A.C.J.

Johanson, J.

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