No. 45744 -0 -11 THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION 11 STATE OF WASHINGTON, Respondent, vs. RICKY ALLEN RIFFE, Appellant. Appeal from the Superior Court of Washington for Lewis County Respondent's Brief JONATHAN L. MEYER Lewis County Prosecuting Attorney By: SARA I. BEIGH, WSBA No. 35564 Senior Deputy Prosecuting Attorney Lewis County Prosecutor's Office 345 W. Main Street, 2nd Floor Chehalis, WA 98532 -1900 360) 740 -1240 TABLE OF CONTENTS TABLE OF AUTHORITES v I. ISSUES 1 II. STATEMENT OF THE CASE 1 A. SUBSTANTIVE FACTS 1 B. PROCEDURAL FACTS 38 III. ARGUMENT 43 A. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED RIFFE'S REQUEST TO PRESENT AN EXPERT WITNESS TO TESTIFY ABOUT MEMORY AND EYE WITNESS IDENTIFICATION 43 1. Standard Of Review 43 2. Invoking The Compulsory Process Clause And The Right Of Confrontation Guaranteed By Sixth Amendment Does Not Guarantee A Criminal Defendant's Proposed Testimony Is Admissible...44 3. The Trial Court's Did Not Abuse Its Discretion When It Ruled Dr. Reinitz Could Not Testify As An Expert In Regards To Memory Or Eye Witness Identification 47 a. Riffe's trial counsel did not establish the foundational requirements for admission of an expert opinion by a preponderance of the evidence 49 i. Trial counsel did not establish if Dr. Reinitz's was a qualifying expert 50 i ii. Trial counsel did not establish by a preponderance that the proposed testimony was generally accepted in the scientific community 52 iii. Based upon the information provided to it by Riffe's trial counsel, the trial court did not abuse discretion when it concluded the proposed testimony would not be helpful to the jury 54 b. The trial court's exclusion of Dr. Reinitz was not an abuse of discretion 59 B. THERE WAS NO REQUEST FOR A MISTRIAL BY RIFFE'S TRIAL COUNSEL DURING OR FOLLOWING IRWIN BARTLETT'S TESTIMONY 61 1. Standard Of Review 61 2. There Was No Request For a Mistrial, Therefore There Was No Error 61 C. THE DEPUTY PROSECUTOR'S DID NOT COMMIT PROSECUTORIAL ERROR WHEN HE ARGUED ACCOMPLICE LIABILITY TO THE JURY 64 1. Standard Of Review 65 2. The Deputy Prosecutor Did Not Commit Error When Discussing Accomplice Liability During His Closing Argument 65 a. Accomplice liability in Riffe's case 67 b. The deputy prosecutor argued the correct accomplice liability standard 68 c. If There Was Error, It Was Not Flagrant 72 ii D. RIFFE DID NOT OBJECT TO THE ADMISSION OF THE COMPOSITE SKETCHES AND THEREFORE HAS WAIVED RAISING THE ISSUE FOR THE FIRST TIME ON APPEAL 73 1. Standard Of Review 74 2. The Admission Of The Composite Sketches, Without Objection From Riffe's Trial Counsel, Is Not A Manifest Constitutional Error And Therefore, It Cannot Be Raised For The First Time On Appeal 74 E. RIFFE'S TRIAL COUNSEL IMPEACHED NONNA PIERCE WITH A PRIOR INCONSISTENT STATEMENT AND THEREFORE, THERE WAS NO VIOLATION OF RICK'S RIGHT TO PRESENT A DEFENSE, RIGHT TO DUE PROCESS, OR RIGHT TO CONFRONTATION...79 1. Standard Of Review 79 2. Riffe's Trial Counsel Effectively Impeached Nonna Pierce, Therefore, There Were No Violations Of Riffe's Constitutional Rights 80 F. JOHN GREGORY RIFFE'S STATEMENT TO CATHY THOLA WAS PROPERLY ADMITTED AS AN ADOPTIVE ADMISSION 88 1. Standard Of Review 89 2. Ricky Riffe Adopted Greg's Statement That They Have Killed Before And They Could Kill Again 89 3. There Is No Violation Of The Confrontation Clause Because The Statement Is Not Hearsay But An Admission By A Party Opponent 91 4. Riffe Does Not Show That The Adoptive Admission Exception Is Incorrect And Harmful 92 iii G. ROBIN'S QUESTION TO DETECTIVE NEISER WAS PROPERLY ADMITTED BECAUSE IT WAS A QUESTION, NOT AN ASSERTION 93 1. Standard Of Review 93 2. A Question Is Not An Assertion And Therefore Not Hearsay 93 H. THE STATE ALREADY DEALT WITH THE ALLEGED ERRORS RAISED AND THERE IS NO NEED TO CONDUCT A CONSTITUTIONAL HARMLESS ERROR ANALYSIS 95 IV. CONCLUSION 98 iv TABLE OF AUTHORITIES Washington Cases In re Elmore, 162 Wn.2d 236, 172 P.3d 335 (2007) 45 In re Morris, 176 Wn.2d 157, 288 P.3d 1140 (2012) 47 In re Pers. Restraint ofMorris, 176 Wn.2d 157, 288 P.3d 1140 2012) 44 In re Stranger Creek, 77 Wn.2d 649, 466 P.3d 508 (1970) 92 Kane v. Smith, 56 Wn.2d 799, 355 P.2d 827 ( 1960) 63 Lawson v. Boeing Co., 58 Wn. App. 261, 792 P.2d 545 (1990) 76 State v. Aguirre, 168 Wn.2d 350, 229 P.3d 669 (2010) 44 State v. Allen, 159 Wn.2d 1, 147 P.3d 581 ( 2006) 61 State v. Allery, 101 Wn.2d 591, 682 P.2d 312 ( 1984) 48 State v. Belgrade, 110 Wn.2d 504, 755 P.2d 174 (1988) 65 State v. Bourgeois, 133 Wn.2d 389, 945 P.2d 1120 (1997) 59 State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007(1998) 66 State v. Camarillo, 115 Wn.2d 60, 794 P.3d 850 (1990) 17 State v. Cheatam, 150 Wn.2d 626, 814 P.3d 830 (2003) 48, 49 State v. Ciskie, 110 Wn.2d 263, 751 P.2d 1165 (1988) 48 State v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003) 59, 88 State v. Collins, 76 Wn. App. 496, 886 P.2d 243 (1995) 94 v State v. Cotton, 75 Wn. App. 669, 879 P.2d 971 ( 1994), review denied, 126 Wn.2d 1004 (1995) 89, 90, 92 State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000) 70 State v. Darden, 145 Wn.2d 616, 41 P.3d 1189 (2002) 80 State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984) 61 State v. Davis, 141 Wn.2d 798, 10 P.3d 977 (2000) 45 State v. Edwards, 169 Wn. App. 561, 280 P.3d 1152 (2012) 74 State v. Ehrhardt, 167 Wn. App. 934, 276 P.3d 332 (2012) 75 State v. Finch, 137 Wn.2d 792, 975 P.2d 967 1999) 43 -44, 59, 89, 93 State v. Fisher, 165 Wn.2d 727, 202 P.3d 937 (2009) 64 State v. Florczak, 76 Wn. App. 55, 882 P.2d 199 ( 1994) 75 State v. Garland, 169 Wn. App. 869, 282 P.3d 1137 (2012) 85 State v. Gilcrist, 91 Wn.2d 603, 590 P.2d 809 (1979) 62 State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 ( 2006) 66, 67 State v. Greiff, 141 Wn.2d 910, 10 P.3d 390 (2000) 96 State v. Harris, 97 Wn. App. 865, 989 P.2d 553 (1999) 62 State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994) 44 State v. Hilton, 164 Wn. App. 81, 261 P.3d 683 (2011) 49 State v. Hudlow 99 Wn.2d 1, 659 P.2d 514 (1983) 80 State v. Hughes, 118 Wn. App. 713, 77 P.3d 681 ( 2003) 66 State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011) 80 vi State v. Ish, 170 Wn.2d 189, 241 P.3d 389 (2010) 65 State v. Johnson, 158 Wn. App. 677, 243 P.3d 936 (2010), review denied, 171 Wn.2d 1013 (2011) 67 State v. Jones, 168 Wn.2d 713, 230 P.3d 576 (2010) 45, 46, 47 State v. King, 113 Wn. App. 243, 54 P.3d 1218 (2002) 92 State v. Kwan Fai Mak, 105 Wn.2d 692, 718 P.2d 407 (1986) 66 State v. Lamar, 180 Wn.2d 576, 327 P.3d 46 (2014) 77 State v. Lewis, 156 Wn. App. 230, 233 P.3d 891 ( 2010) 66 State v. Lohr, 164 Wn. App. 414, 263 P.3d 1287 (2011) 44 State v. McDaniel, 83 Wn. App. 179, 920 P.2d 1218 (1996) 79 State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 ( 1995).... 74, 75 State v. McGhee, 57 Wn. App. 457, 788 P.2d 603, review denied, 115 Wn.2d 1013 (1990) 90 State v. McKenzie, 157 Wn.2d 44, 134 P.3d 221 ( 2006) 66 State v. Monday, 171 Wn.2d 667, 257 P.3d 551 ( 2011) 66 State v. Nava, 177 Wn. App. 272, 311 P.3d 83 (2013) 49 State v. Nelson, 74 Wn. App. 380, 874 P.2d 170 ( 1994), review denied 125 Wn.2d 1002 85, 86 State v. Neslund, 50 Wn. App. 531, 749 P.2d 725, review denied, 110 Wn.2d 1025 (1988) 89, 92 State v. Newbern, 95 Wn. App. 277 975 P.2d 1041 1999) 80, 81, 82, 83 State v. O'Hara, 167 Wn.2d 91, 217 P.3d 756 2009) 63 -64, 74, 75, 77 vii State v. Post, 118 Wn.2d 596, 837 P.2d 599 ( 1992) 61, 62 State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000) 70 State v. Rodriguez, 146 Wn.2d 260, 45 P.3d 541 ( 2002) 62 State v. Russell, 125 Wn.2d 24, 882 P.2d 747 (1994) 65 State v. Smith, 155 Wn.2d 496, 120 P.3d 559 (2005) 74 State v. Statler, 160 Wn. App. 622, 248 P.3d 165 (2011), review denied, 172 Wn.2d 1002 (2011) 45 State v. Stenson, 132 Wn.2d 668, 940 P.2d 1239 (1997) 59 State v. Swenson, 62 Wn.2d 259, 382 P.2d 614 (1963) 62 State v. Taylor, 50 Wn. App. 481, 749 P.2d 181 ( 1988) 53 State v. Thorgerson, 152 Wn.2d 438, 258 P.3d 43 (2011) 65 State v. Turnispeed, 162 Wn. App. 60, 255 P.3d 843 (2011) 44 State v. Wade, 138 Wn.2d 460, 979 P.2d 850 (1999) 63 State v. Walker, 164 Wn. App. 724, 265 P.3d 191 ( 2011) 67 State v. Watt, 160 Wn.2d 626, 160 P.3d 640 ( 2007) 96 State v. Weber, 99 Wn.2d 158, 659 P.2d 1102 (1983) 62 State v. Williams, 79 Wn. App. 21, 902 P.2d 1258 (1995) 82 Sterling v. Radford, 126 Wn. 372, 218 P. 205 (1923) 81 Other State Cases Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1 ( Pa. 2008) 64 Johnson v. State ofDelaware, 587 A.2d 444 (Del. 1991) 64 viii State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007) 64 State v. Leutschaft, 759 N.W.2d 414 (Minn. App. 2009) ), review denied, 2009 Minn. LEXIS 196 (Minn., Mar. 17, 2009) 64 Federal Cases Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L.Ed.2d 297 (1973) 45 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004) 93, 94 Hunt v. Smith, 856 F. Supp. 251 ( D. Md. 1994) 97 Mullen v. Blackburn, 808 F.2d 1143 (5th Cir. 1987) 97 Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 1988) 46, 47 Thompson v. Calderon, 109 F.3d 1358 (9th Cir. 1996) 97 United States v. Moskowitz, 581 F.2d 14 ( 1978) 77 Washington Statutes RCW 2.44.010(a) 85 RCW 9A.08.020 67, 71 RCW 9A.32.030(1)( a) 67 RCW 9A.32.050(1)( b) 68, 71 Constitutional Provisions Washington Constitution, Article I § 22 77, 80 U.S. Constitution, Amendment VI 43, 46, 77, 80, 88, 91, 93 ix