No. 48147-9-I.The Court of Appeals of Washington, Division One.
Filed: September 15, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 98-1-02618-5. Judgment or order under review. Date filed: 01/23/2001.
Counsel for Appellant(s), David L. Donnan, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Gregory Charles Link, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Andrea Ruth Vitalich, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
COLEMAN, J.
A jury convicted Craig Barfield of first degree rape and first degree burglary, and the trial judge sentenced him to life imprisonment without parole after finding that Barfield was a persistent offender. On appeal, Barfield contends that his due process rights were violated when the state crime lab destroyed and concealed favorable evidence that was material to the question of guilt.
We hold that the evidence at issue, preliminary deoxyribonucleic acid (DNA) test results excluding Barfield as a suspect and disciplinary action taken against the crime lab scientist who destroyed the test results, was not material because comparable evidence was available; thus, there was no Brady violation.[1] Additionally, we hold that neither the United States nor the Washington State Constitution prohibit the trial judge from determining Barfield’s prior criminal history for the purposes of the Persistent Offender Accountability Act (POAA). None of Barfield’s remaining arguments has merit. We affirm his convictions and sentence.
FACTS
Early in the morning of March 26, 1997, an intruder raped a Beacon Hill woman in her apartment. She immediately reported the rape to police and went to Harborview where medical personnel used four vaginal swabs to collect semen from her body. Seattle police submitted the swabs to the Washington State Patrol Crime Lab (WSPCL) for DNA testing.
In November 1997, WSPCL scientist John Brown removed two of the swabs from their packaging for testing. He used the RFLP[2] method of analysis, which involves placing radioactive probes on a membrane containing the DNA sample. The DNA sample is exposed to film, and images called `autorads’ (short for autoradiograms) are generated for the DNA bands. Several autorads are generated for each probe. A video system and computer are then used to measure the size of the DNA bands, and that sizing data is entered into a spreadsheet. The sizing data can be used to match the sample’s DNA profile to the DNA profiles contained in a database.
When Brown first attempted to match the DNA sample to the WSPCL’s database, which included Barfield’s DNA profile, he turned up no match. He submitted his test results to his supervisor, Donald MacLaren, who observed that Brown had made an error in sizing a DNA band designated as TBQ 7. Upon resizing and retesting, Brown matched the DNA sample to Barfield’s DNA profile. Brown discarded the sizing sheet and thermal print, as well as his original draft report. At the time of the assault, Barfield had been released from prison one week earlier and was living two blocks away from the victim. No evidence other than the DNA tied Barfield to the crime.
Trial was set for May 1998. In April 1998, defense counsel met with Brown. He initially denied running any tests that excluded Barfield as a suspect and denied discarding evidence, but later in the interview, he conceded that he had done the November 1997 testing and report and that he discarded his results. When the prosecutor learned of the testing irregularity shortly afterwards, he sent the remaining two swabs to a lab in California, Forensic Science Associates (FSA), for additional testing. FSA scientists concluded that Barfield was a DNA match for the sample. As a result of the additional testing and numerous pretrial motions, the trial court ordered multiple continuances of the trial date.
At trial on May 3, 2000, Brown testified that he had lied to defense counsel during their April 1998 meeting because he was embarrassed about making a mistake with the sizing. He claimed that he made an obvious error. On May 10, a King County prosecutor reported this testimony to WSPCL supervisors, who completed an internal investigative report on May 16. On May 15, prosecutors from King and Spokane Counties met with WSPCL to discuss the effect of Brown’s misconduct on other cases. WSPCL administratively reassigned Brown via written memo on May 17, relieving him of his duties with the DNA lab. He subsequently resigned. Defense counsel subpoenaed Brown’s personnel file during trial on May 19, with a return date of May 23. Closing arguments took place on May 30. No evidence of Brown’s administrative leave was disclosed until after trial.
On May 31, 2000, the jury found Barfield guilty of first degree rape and first degree burglary. When the defense learned that WSPCL had disciplined Brown during trial, it filed an unsuccessful posttrial motion to dismiss or to grant a new trial. At sentencing, the State presented evidence that Barfield had committed two prior `most serious offenses,’ thus this was his third strike under the POAA. He was sentenced to life imprisonment without the possibility of parole.
DISCUSSION A. Trial Issues
Barfield’s primary argument on appeal is that the State’s failure to disclose the existence and destruction of exculpatory evidence that was material to guilt or punishment violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Failure to disclose evidence that is material to the guilt of a defendant or relevant to the punishment to be imposed may violate a defendant’s due process rights to a fair trial and require dismissal. Brady, 373 U.S. at 87. The prosecution has a duty to disclose material exculpatory evidence and a related duty to preserve such evidence for use by the defense. State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). `In order to be considered `material exculpatory evidence,’ the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ Wittenbarger, 124 Wn.2d at 475 (citing Trombetta, 467 U.S. at 489). There can also be a due process violation if the defense shows that the prosecution acted in bad faith in destroying potentially useful evidence. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). The duty to disclose and preserve evidence favorable to the defense applies to the prosecution as well as to `others acting on the government’s behalf.’ Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The standard of review for trial court determinations that evidence is or is not material and exculpatory is de novo. State v. Burden, 104 Wn. App. 507, 512, 17 P.3d 1211 (2001).
Barfield’s first contention on appeal is that the WSPCL’s destruction and concealment of preliminary DNA test results that excluded him as a suspect violated his due process rights under Trombetta and Brady. He also claims that the remedy for the due process violation is automatic dismissal. In response to Barfield’s argument, the State claims that: (1) the prosecution is not responsible for the acts of the WSPCL, but even if it is; (2) the discarded evidence was not exculpatory because it was wrong; and (3) even if exculpatory, it was not material because comparable evidence was available and there was no prejudice.
The State’s first two arguments are not persuasive. The WSPCL is an investigative arm of the prosecution and accordingly subject to the same duties and responsibilities applicable to the police. State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991). See In re Brown, 17 Cal.4th 873, 952 P.2d 715, 718-19, 72 Cal.Rptr.2d 698 (1998) (recognizing crime lab as part of the investigative team subject to Brady obligations). The trial court correctly concluded that the discarded evidence was exculpatory because on its face, it was favorable to the defense and tended to exclude Barfield as a suspect. Whether that information was erroneous or accurate is a question of fact that is properly for the jury, not the prosecution, to decide. Kyles, 514 U.S. at 440.
The State’s third argument was adopted by the trial court as its basis for denying the defendant’s motions to dismiss. Viewing the evidence in total, we agree with the trial court’s decision. Barfield has not shown prejudice from the destruction of the preliminary testing report that excluded him as a suspect in this crime.[3] The jury was aware that exculpatory information existed and was discarded, and it knew that Brown had misrepresented this information to defense counsel before trial. There is no evidence that Brown’s testing tainted the DNA tested by FSA, as different swabs were used and the chain of custody of those swabs is not challenged on appeal. Plus, Barfield had the same DNA evidence available to him for independent testing, as well as the sizing criteria upon which the exculpatory report was based. Despite the lack of the sizing sheet and the thermal print, he had a spreadsheet containing the exact sizing measurements Brown relied upon in his preliminary report. Moreover, he had a defense DNA expert review the work performed by Brown and FSA.
Therefore, Barfield had ample opportunity to use the evidence of Brown’s misconduct to his favor for impeachment purposes and had sufficient evidence to determine if the State’s claim that the DNA sample matched Barfield’s DNA profile was rebuttable. In short, nothing was destroyed that could not have been duplicated, and indeed the knowledge that certain evidence had been destroyed did more to undermine the State’s case than to prejudice Barfield’s.
Barfield also contends that automatic dismissal for acting in bad faith is required under Youngblood. We disagree. First, Youngblood’s holding applies only to `potentially useful evidence,’ whose value cannot be determined because it no longer exists. The Washington Supreme Court emphasized this distinction between material exculpatory evidence and potentially useful evidence when it held in State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991), that there was no due process violation in the absence of bad faith when the State failed to preserve “evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Lord, 117 Wn.2d at 868 (quoting Youngblood, 488 U.S. at 57). Here we are not left in a state of uncertainty regarding the value and content of the destroyed evidence: both its value and content are known. Because the value of the evidence destroyed and the prejudice from its destruction and concealment were minimal at best, Youngblood does not apply.
Second, both Lord and Youngblood declined to find a due process violation in the absence of bad faith. But this does not mean that this court must automatically find a due process violation every time there is bad faith destruction of potentially useful evidence. See also United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (‘{I}f evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense.’). Barfield cites no authority that supports his automatic dismissal argument.
Barfield’s second contention is that the trial court erred when it denied his motion for a new trial based upon newly discovered evidence of disciplinary action taken against Brown during trial. He also argues that the State’s failure to turn over Brown’s disciplinary memos constituted a Brady violation that warranted dismissal.
The standard of review for an order denying a motion for a new trial is abuse of discretion. State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868
(1981). A new trial based upon newly discovered evidence will be granted only if the defendant demonstrates that the evidence: (1) will probably change the result of the trial; (2) was discovered after trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. State v. Roche, 114 Wn. App. 424, 435, 59 P.3d 682 (2002). The newly discovered evidence that Barfield relies upon are disciplinary memos dated May 17 and May 19 placing Brown on administrative leave. The State argues that this evidence would not have changed the result of the trial and, in addition, is merely cumulative or impeaching. We agree.
On May 23, 2000, WSPCL attempted to quash a subpoena requesting personnel records of several WSPCL employees, including John Brown. WSPCL submitted to the court certain documents for an in camera review. Its submission did not contain copies of the two memos dated May 17 and May 19 that immediately placed Brown on administrative leave and `administratively reassigned’ him to very restricted duties at his home. The WSPCL took these disciplinary steps after the prosecutor informed it on May 10 that Brown had testified that he intentionally lied to defense counsel. The absence of these materials permitted the prosecutor to argue in closing arguments that Brown had an unblemished career at the WSPCL. During closing arguments, the prosecutor also buttressed Brown’s credibility by comparing his reprimand-free record to that of a defense expert whom the WSPCL had reprimanded several times for poor performance when he worked there.[4] The WSPCL completed its investigation of Brown several months after trial, and Brown was forced to resign. When these memos were disclosed to the trial court in a posttrial motion to dismiss for trial irregularities, the trial court sanctioned the WSPCL $5,000 for its failure to include them in its subpoena response.
Reviewing the newly revealed evidence under the first prong of the test, we conclude that it is very unlikely that any information regarding WSPCL’s disciplinary actions against Brown would have changed the outcome of the case in light of the independent DNA testing performed by FSA and the jury’s knowledge of Brown’s misconduct. Brown’s credibility was severely undermined both by his initial error in testing the DNA and by his later attempts to conceal his error, and the jury was on notice that his actions were not ethical or in accordance with lab procedures. The subsequent testing by FSA provided strong evidence linking Barfield to the crime, evidence that was likely very influential in the jury’s decision. Furthermore, the memos were merely cumulative and impeaching, i.e., they tended to affect Brown’s credibility and personal character, which were already severely damaged. Thus, we conclude that the trial court did not abuse its discretion when it denied Barfield’s motion for a new trial.
This case also differs from this court’s recent decision in Roche, in which misconduct by a WSPCL crime lab employee undermined his credibility and the testing he performed on drugs for which the chain of custody had been broken. Roche, 114 Wn. App. at 428. Brady was not a factor in that decision. Roche, 114 Wn. App. at 446. Unlike Roche, ample untainted evidence supports the conviction of Barfield.
Barfield also claims that the WSPCL’s nondisclosure of Brown’s disciplinary memos violated Brady. Impeaching materials are subject to the Brady disclosure rules, but a due process violation does not arise unless there is a reasonable probability that the outcome of the trial would have been different if the materials had been disclosed. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481
(1985).
While these memos could have been helpful to the defense, we conclude that their absence does not rise to a Brady violation because these materials were merely impeaching and cumulative. As previously noted, the jury had all of the facts surrounding the misconduct that ultimately led to Brown’s resignation, even if it did not know of the disciplinary actions already set in motion. This is clearly distinguishable from Benn v. Lambert, 283 F.3d 1040, cert. denied, 123 S.Ct. 341 (9th Cir. 2002), which reversed a criminal conviction after the defendant learned that the prosecution had withheld numerous material facts directly affecting the credibility of a police informant who implicated the defendant. These facts never arose during trial, and the jury would not have known of numerous incidents which severely undermined the informant’s credibility and affected the primary evidence against the defendant. Barfield claims that the trial court’s failure to conduct a Brady analysis regarding these materials was itself an abuse of discretion; but after conducting the same Brady analysis de novo, we conclude that the evidence of WSPCL’s disciplinary actions against Brown does not qualify as `material exculpatory evidence.’
Moreover, the record does not make clear the extent of the prosecutor’s knowledge of the WSPCL’s disciplinary actions against Brown. Under State v. Blackwell, 120 Wn.2d 822, 826, 845 P.2d 1017 (1993), the State does not ordinarily have the obligation to obtain and produce to the defense a third-party’s personnel records, which are considered human resource files not typically in the prosecution’s control. This does not mean, however, that the State would be exempt from its Brady disclosure obligations in the event it had such information or records.
Barfield’s third contention is that the trial court erred when it denied his motion for dismissal under CrR 8.3(b) for governmental mismanagement. Immediately after the prosecutor and defense counsel learned of Brown’s discarded DNA test results, the prosecutor requested a continuance of the original May 1998 trial date in order to perform independent testing of the remaining DNA samples. Barfield moved for dismissal under CrR 8.3 on the grounds of governmental mismanagement. CrR 8.3(b) sets forth the standard for dismissal due to governmental misconduct:
On Motion of Court. The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial. The court shall set forth its reasons in a written order.
Dismissal is an extreme remedy to be granted only where arbitrary action or governmental misconduct, including mismanagement, has resulted in prejudice to the accused’s right to a fair trial. Blackwell, 120 Wn.2d at 830. We review a trial court’s decision on a motion to dismiss for abuse of discretion. State v. Dailey, 93 Wn.2d 454, 456, 610 P.2d 357 (1980).
The State argues that the WSPCL’s mismanagement cannot be attributed to the prosecutor. It is not necessary to reach that issue, however, because we have already decided that Barfield has shown no prejudice from Brown’s misconduct. Accordingly, the trial court did not abuse its discretion when denying Barfield’s motion to dismiss.
Moreover, as the State correctly argues in response to Barfield’s claim that governmental mismanagement caused him to forego his right to a speedy trial, dismissal is only appropriate where there is no justifiable explanation for a delay in revealing information critical to the defense. See State v. Michielli, 132 Wn.2d 229, 244, 937 P.2d 587 (1997) (dismissal warranted where prosecutor’s unexplained addition of new charges days before trial forced defendant to either proceed unprepared or waive speedy trial rights). Here, there was a reasonable explanation for the prosecutor’s decision to seek a continuance. The facts surrounding Brown’s misconduct were revealed to the defense before the original trial date, and all continuances granted afterward were based upon good cause. Even Barfield’s own counsel stated that he needed additional time to effectively represent Barfield at trial, although his client would object to any continuances. And, as in State v. Cannon, 130 Wn.2d 313, 922 P.2d 1293 (1996), cited by the State, Barfield was on notice from the outset that DNA testing was the primary evidence that would be used. Therefore, there was no prejudice resulting from the prosecutor’s requests to delay trial in order to confirm that the DNA test results from WSPCL were accurate.
Barfield’s next contention is that the trial court violated his constitutional right to present a defense when it declined to instruct the jury that it could infer that the State’s failure to provide missing evidence meant that the missing evidence was favorable.
A defendant has a constitutionally guaranteed right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). According to Barfield, he was denied this right when the trial court rejected his proposed `missing evidence’ instruction. The State counters that such an instruction is only appropriate if the failure to produce evidence is unexplained under State v. LaPorte, 58 Wn.2d 816, 824, 365 P.2d 24 (1961). The State is correct.
In State v. Jordan, 17 Wn. App. 542, 564 P.2d 340 (1977), this court addressed the same issue and held that the defendant was not entitled to a missing evidence instruction where the absence of the evidence was explained. Here, the only evidence that was missing was the original preliminary report, the thermal print, and the sizing sheet. The reason for the State’s failure to produce this evidence was amply explained.
Because the jury was aware of the undisputed reason for its absence, Barfield was not entitled to a missing evidence instruction.
Barfield next claims that the trial court abused its discretion in admitting the victim’s description of the race of her attacker as a statement made for medical diagnosis under ER 803(a)(4). A Harborview medical worker testified that the victim identified her attacker to medical personnel as a black man.
Evidentiary rulings are reviewed by appellate courts for abuse of discretion. State v. Woods, 143 Wn.2d 561, 595-96, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001). This court may affirm an evidentiary ruling on any basis that is supported by the record and the law. State v. Kelly, 64 Wn. App. 755, 764, 828 P.2d 1106 (1992).
Conceding that this statement was not made for medical diagnosis, the State argues that the statement was admissible under ER 801(d)(1) as a prior consistent statement. ER 801(d)(1)(ii) defines a prior consistent statement as a statement consistent with the declarant’s testimony and offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Such statements are admissible and not considered hearsay.
At trial, the victim testified that her attacker was black, but at an earlier interview with a detective, she stated that her attacker could have been Hispanic, Asian, or Samoan. Barfield’s defense counsel used these conflicting descriptions to challenge the victim’s credibility. The victim’s statement informing medical personnel that her attacker was black predated her interview with a police detective where she expressed confusion over her attacker’s race; thus, the statement was admissible under ER 801(d)(1) to allow the prosecution to rebut the defense’s implication that the victim’s testimony was influenced by the defendant’s race African-American. Because its admission was proper, it is not necessary to address Barfield’s argument that the trial court’s evidentiary decision was not harmless error.
Barfield also argues that the prosecution should not have been permitted to connect his refusal to appear in a lineup with his consciousness of guilt. He claims he refused because the State was planning to allow a third party to view the lineup for this crime in connection with an unrelated crime, and he did not want to be `set up.’ While the State admits that one, but not the only, purpose of the lineup was to allow a third party to view the lineup, it argues that a person has no right to refuse to appear in a lineup, regardless of its purpose. We agree that Barfield did not have the right to refuse to appear.
If a defendant refuses to appear in a lineup for a crime, the prosecution may argue that the refusal is evidence of guilt for that crime. United States v. Parhms, 424 F.2d 152, 154 (9th Cir. 1970). The prosecution may make such an inference, and the defense may explain the defendant’s refusal. Parhms, 424 F.2d at 154. Whether the lineup was for just the crimes charged or for other crimes in addition, Barfield did not have the right to refuse to appear. A refusal logically implies a suspicion of guilt which may be mentioned by the prosecution. The trial court correctly exercised its discretion to allow the prosecution to infer guilt from Barfield’s refusal.
B. Sentencing Issues
Barfield raises a number of challenges to his sentence of life imprisonment without the possibility of parole. Barfield’s main contention is that it violates his constitutional rights to have a jury determine any facts which increase his sentence beyond the statutory maximum for his crimes and that his sentence exceeds the statutory maximum. To support these arguments, he relies upon the Supreme Court’s recent decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that it is a violation of the Sixth and Fourteenth Amendments for a judge to determine `any fact on which the legislature conditions an increase in {a defendant’s} maximum punishment.’ Ring, 536 U.S. at 589. Barfield’s arguments fail.
First, Barfield’s sentence of life without the possibility of parole does not exceed the statutory maximum for the charged crime. There was no constitutional violation when the trial judge found that Barfield had two prior convictions for `most serious offenses,’ because this finding does not increase the maximum sentences for Barfield’s two class A felony convictions. Former RCW 9A.20.021(1)(a) states that the maximum sentence for these crimes is life imprisonment. Barfield’s maximum sentence under the POAA is life. Thus, the POAA does not increase the maximum sentence for his crimes.
Second, we are not persuaded by Barfield’s contention that Ring applies to sentencing enhancements based upon recidivism and has overruled Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S.Ct. 2348, 140 L.Ed.2d 435
(2000). Neither of those cases can be read to require a jury determination of a defendant’s prior criminal history for the purposes of sentencing, and this is the same conclusion the Washington Supreme Court recently reached in State v. Smith, No. 73113-6, 2003 WL 22019776
(Wash.Sup.Ct. Aug. 28, 2003). As noted in Smith, both Ring and Apprendi involve aggravating factors related to the commission of the crime being sentenced. Apprendi, 530 U.S. at 483; Ring, 535 U.S. at 609. Apprendi states, `Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ Apprendi, 530 U.S. at 490. Thus, Apprendi specifically exempts prior criminal history from the jury requirement, and Ring does not address the issue of prior convictions.
Barfield further contends that Washington’s state constitution grants him the right to have a jury determine any facts related to his criminal history. This contention was also recently raised and rejected in Smith, which affirmed a line of decisions upholding the constitutionality of the POAA’s sentencing provisions. See, e.g. State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996); State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799
(2001), cert. denied, 535 U.S. 1037 (2002); State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996); State v. Ben, 114 Wn. App. 148, 55 P.3d 1169
(2002).
Relying upon State v. Oster, 147 Wn.2d 141, 52 P.3d 26 (2002), Barfield further argues that prior convictions that increase the punishment of a crime must be proved as an element of the crime. Barfield misreads Oster. The primary issue decided in Oster was whether the `to convict’ jury instruction for felony violation of a no-contact order contained a complete statement of the law, which statutorily defined the defendant’s prior convictions for violating a no-contact order as an element of the crime. Oster, 147 Wn.2d at 147. In contrast, Barfield’s prior convictions are not essential elements of the crimes for which he was convicted. Accordingly, Oster does not apply.
The next issue that we address is whether the State provided sufficient evidence of Barfield’s prior `most serious’ convictions. The State has the burden of proving by a preponderance of the evidence that the defendant being sentenced under the POAA has prior `most serious’ convictions. State v. Ammons, 105 Wn.2d 175, 190, 713 P.2d 719, 718 P.2d 796 (1986). This may be established by presenting certified court records of prior judgments and sentences, institutional packets, fingerprints, and testimony of witnesses. Ammons, 105 Wn.2d at 190.
Specifically, Barfield challenges his sentence on the grounds that there was insufficient evidence that he was convicted of a 1986 burglary because the State’s fingerprint expert could not match Barfield’s fingerprints to the ones on the 1986 judgment and sentence. The State argues that its evidence, which consisted of prison intake forms, intake photos, and the applicable judgments, as well as a certified copy of a 1986 judgment and sentence against Craig Barfield, No. 86-1-00656-3, was sufficient to show that Barfield was convicted of burglary in 1986.
In the absence of a denial that the person identified in a judgment is not the same person being sentenced, the trial court may rely upon supporting evidence to determine the identity of the defendant in previous adjudications. Ammons, 105 Wn.2d at 190. Here, Barfield did not deny that he was the person identified in the 1986 judgment and sentence. The State submitted a certified copy of that judgment and sentence, along with undisputed evidence that Barfield served the sentence for that burglary. Barfield’s subsequent convictions include the 1986 burglary conviction as part of his criminal history. The inability of the State fingerprint expert to determine if Barfield’s fingerprints matched those on the 1986 judgment did not prevent the trial court from deciding by a preponderance of the evidence that Barfield was convicted of burglary in 1986. We affirm his sentence.
Barfield next argues that he was deprived of his constitutional right to meaningful allocution, reasoning that because a life sentence was mandatory under the POAA once the jury found him guilty of a class A felony, the right of allocution before the judge imposed his sentence was meaningless. This court recently rejected an identical argument in State v. Snow, 110 Wn. App. 667, 669, 41 P.3d 1233, review denied, 147 Wn.2d 1017 (2002). For the same reasons expressed in Snow, we do the same here.
Lastly, arguing pro se, Barfield appeals his conviction on the basis of prosecutorial misconduct and ineffective assistance of counsel. Under State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991), Barfield bears the burden of showing that the prosecutor’s comments were improper and their resulting prejudice.
Regarding prosecutorial misconduct, Barfield argues, without citation to the record, that the prosecutor improperly inferred guilt from the defendant’s failure to conduct independent testing of the DNA specimen.
The State claims that no such comment was made and that the only reference to the defendant’s failure to present independent DNA evidence was to mention in rebuttal that the defense had called no DNA experts. This comment was immediately followed by an objection, which the trial court sustained, instructing the jury that the defense had no duty to present evidence.
Assuming without deciding that the comment was improper, Barfield does not meet his burden of showing prosecutorial misconduct because he has failed to show any prejudice in light of the contemporaneous objection and instruction to the jury. We find no error.
Barfield’s ineffective assistance of counsel claims stem from his attorney’s failure to: (1) introduce character evidence against the victim; (2) fully investigate criminal activity in the Beacon Hill neighborhood that might have revealed similar crimes committed by others; and (3) object to a videotape simulating how an intruder might have entered the victim’s apartment through the kitchen window.
A criminal defendant claiming ineffective assistance of counsel must show that counsel’s performance fell below an objective standard of reasonableness and prejudice resulting therefrom. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). The reviewing court begins with a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. State v. Israel, 113 Wn. App. 243, 270, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1015 (2003).
We find no evidence that counsel rendered ineffective assistance. Barfield’s first two arguments contain no indication of what evidence he sought to introduce, therefore it is impossible to find that counsel’s failure to pursue that evidence was unreasonable or prejudicial. Regarding the third alleged error, Barfield has not shown that counsel’s decision not to object to the tape was deficient strategy. Even assuming that an objection to the videotape based upon its unreliability as a reenactment was proper, it is highly unlikely that its exclusion would have affected the trial. Evidence of forced entry was present at the scene. And in this case, the identity of the attacker was the primary issue at trial, not the means of entry. The videotape merely demonstrated the likelihood that entry through the window was theoretically possible.
Barfield also fails to raise a sufficient challenge to the trial court’s order of restitution covering the victim’s counseling expenses. Barfield’s brief mentions this issue only in passing by citing an unpublished case concerning restitution and attaching a copy of a letter to the trial judge asking for documentation of counseling expenses. We decline to address this argument as unsupported by any argument or citation to the record.
We affirm Barfield’s convictions and sentence.
ELLINGTON and COX, JJ., concur.
(1963).