STATE v. KENNEDY, 28229-1-II (Wash.App. 8-26-2003)

No. 28229-1-IIThe Court of Appeals of Washington, Division Two.
Filed: August 26, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Clallam County Docket No: 01-1-00054-2 Judgment or order under review Date filed: 12/14/2001

Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 331 NW Park St, Chehalis, WA 98532-2024.

Manek R. Mistry, Backlund Mistry, 331 NW Park St, Chehalis, WA 98532-2024.

Counsel for Respondent(s), Sharon Elizabeth Chirichillo, Law Ofc of Lewis County Prosecutors, P.O. Box 7332, Olympia, WA 98507.

HUNT, C.J.

January Kennedy appeals her conviction for unlawful possession of heroin found in the pocket of a jacket she was wearing and in her purse; she contended that the possession was unwitting. She argues that (1) the trial court erred in admitting evidence of drug dealing, an untimely lab report, and certain custodial statements; (2) the trial court erred in failing to give a unanimity instruction as to which quantity of heroin she possessed; (3) the trial court’s instruction on reasonable doubt was improper; (4) the prosecutor committed misconduct; and (5) the trial court violated the appearance of fairness doctrine. Finding no reversible error, we affirm.

FACTS I. Heroin Possession
Sequim Police Officer James Vorhies spotted Chris Worsey’s vehicle with expired tabs in the Sequim Safeway parking lot. Based on information he had received the prior evening, Vorhies believed that Worsey had a suspended license.

A few minutes later, two women exited the Safeway carrying groceries and approached the vehicle. After Worsey exited the vehicle, all three got in and drove out on to the street.

Vorhies stopped the vehicle and called for backup. Officer Corey Hall arrived just as Officer Vorhies was approaching the vehicle on foot. Vorhies discovered that (1) Kennedy was the driver, (2) Worsey was seated in the back, and (3) another passenger, Ellie Shultz, was in the front passenger seat. As Kennedy attempted to give her identification to Vorhies, Hall noticed Worsey making “furtive movements” with his hands. Hall asked Worsey to stop.

When Worsey did not comply, Hall removed him from the car. While Vorhies ran Kennedy’s license, Kennedy and Shultz remained in the car. Hall positioned Worsey between him and the car so that he could monitor both Worsey and the vehicle’s occupants. Vorhies discovered that Kennedy had a suspended license.

He returned to the vehicle, informed Kennedy that she was being arrested for driving while her license was suspended, and asked her to step out of the car. Vorhies then handcuffed Kennedy and placed her in his patrol vehicle.

The officers searched both Kennedy and the vehicle incident to her arrest. They found a piece of foil with suspected heroin residue in the pocket of the jacket that she was wearing. She told Vorhies that she had borrowed the jacket. The officers also found a glass tube with burnt brown residue in plain view on the backseat, close to where Worsey had been sitting. The officers then terminated the search of the vehicle and called for a canine search unit.

The police dog “hit on” a purse on the front floorboard of the vehicle, near the center console on the passenger side. Vorhies read Kennedy her Miranda[1] rights from a printed card. Hall asked Kennedy if she understood the rights that she had been read, and she said that she had “nothing to hide.”

Vorhies searched the purse at the scene and found a balloon containing suspected heroin at the bottom of the purse, as well as three glass pipes.

When Vorhies carried the purse back to his patrol vehicle, Kennedy thanked him for retrieving her purse. The officers searched the purse again at the police station and found three pipes containing suspected heroin residue.

They also found more suspected heroin, two pieces of foil with suspected heroin residue, a pocket torch, and a notebook containing notes in Kennedy’s handwriting with terms like “meths,” “G,” “tabs,” and “8-ball brick.”

Kennedy was again read her rights at the Sequim Police Department, where she signed a written waiver. Officer David Campbell interviewed Kennedy; she seemed shocked and surprised initially, but became increasingly nervous and flustered as the interrogation proceeded. Eventually, she said, “Maybe I should get a lawyer now, I know this doesn’t look good,” and she terminated the interview. Report of Proceedings (RP) Vol. I at 89.

II. Procedure
The State charged Kennedy with one count of unlawful possession of a controlled substance. Following a CrR 3.5 hearing, the trial court excluded Kennedy’s statement about wanting a lawyer, but otherwise allowed her statements into evidence.

Before trial, Kennedy moved to exclude a certified state crime lab report that the substance on the foil found in the jacket pocket was heroin. She argued that the State’s delivery of the report to the defense a day before trial was not timely. The trial court denied the motion, finding that there had been no prejudice to Kennedy because the report had been previously mentioned in the probable cause affidavit, giving defense counsel adequate notice to prepare a defense to possession of the substance found in the jacket pocket.

Defense counsel also moved to exclude the notebook found in Kennedy’s purse, arguing that the notebook was evidence of uncharged misconduct (drug dealing) and was not relevant to the charge of simple possession. The trial court denied the motion, finding that the notebook was relevant to rebut the defense of unwitting possession.

At trial, Kennedy did not deny that there were drugs in the jacket or in her purse. Rather, she claimed that she did not put them there and did not know how they got there. She told the jury that the jacket she had been wearing was not hers but was a “man’s jacket” she had borrowed because she was cold. She strongly implied that her passenger Shultz had slipped the drugs and paraphernalia into her purse while she was alone in the car. Kennedy denied possession of any of the drug-related items in her purse, except for the litmus strips (which were initially thought to contain LSD, but were later found to contain no controlled substances) and the notebook.

Kennedy did not request a unanimity instruction, the trial court did not give one, and Kennedy did not object. The prosecutor neither elected a single instance of heroin possession to send to the jury nor focused on one or the other during closing argument. In addition, the prosecutor made several statements about his personal opinion of Kennedy’s guilt and the evidence, to which she did not object.

The jury convicted Kennedy as charged. She appeals.

ANALYSIS I. Evidence A. Kennedy’s Notebook
Kennedy argues that the court erred by admitting her notebook, which contained multiple references characteristic of drug dealing, during the State’s case-in-chief. The State replies that admission of the notebook was relevant to undermine Kennedy’s unwitting possession defense.

Before trial, Kennedy moved to exclude the notebook. When asked by the court if Kennedy planned on asserting an unwitting possession defense, Kennedy’s counsel equivocated, and the court admitted the notebook for the purpose of rebutting such a defense. The trial court told Kennedy that she should “make appropriate objections as the subject gets broached.” RP Vol. I at 17.

At trial, the State introduced the notebook during its case-in-chief specifically during direct examination of the first witness. Although Kennedy objected to various questions regarding the notebook, these objections went to foundation, form, and so on. But when the State sought to admit the notebook, Kennedy expressly responded, “No objection.”

When “the trial court indicates that further objections at trial are required,” a party who has lost an evidentiary ruling in a motion in limine must object again at the appropriate point in trial or error is not preserved for appeal. State v. Powell, 126 Wn.2d 244, 256-57, 893 P.2d 615 (1995) (quoting State v. Koloske, 100 Wn.2d 889, 895, 676 P.2d 456 (1984), overruled on other grounds, State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988)). Kennedy having failed to object, we do not consider this issue.

B. State Crime Laboratory Report
Kennedy next argues that the State untimely produced the results of the lab report showing that the jacket she was wearing at the time of her arrest contained heroin.

CrR 6.13(b) provides that an expert’s written lab report “shall be admitted in evidence without further proof or foundation as prima facie evidence of the facts stated in the report” if there is a proper certification. But “[t]he court shall exclude such report if”:

(i) a copy of the report and certificate has not been served on the defendant or the defendant’s attorney at least 15 days prior to the trial date or, upon a showing of cause, such lesser time as the court deems proper; or . . . (iii) at least 7 days prior to the trial date or, upon a showing of cause, such lesser time as the court deems proper, the defendant has served a written demand upon the prosecutor to produce the expert witness at the trial. CrR 6.13(b)(3).

Here, although the lab results were untimely given to defense counsel the day before trial, there was a showing of cause on the record that allowed the trial court to shorten CrR 6.13(b)’s time for service. Kennedy had notice that (1) the prosecutor intended to use the results, (2) the test results would be late, and (3) the prosecutor was diligently pressing the Sequim Police Department to submit the evidence to the lab and contacting the lab for the results. But Kennedy made no objection until the day before trial and did not request a continuance.[2]
Moreover, there was no prejudice to Kennedy, who had been aware of the State’s position that the jacket contained heroin as early as the statement of probable cause and, thus, had ample time to prepare for trial.

C. Custodial Statements
Kennedy also challenges admission of her custodial statements on grounds that (1) there was insufficient evidence that she had waived her Miranda[3] rights; (2) the trial court did not apprise her of her rights concerning testifying at the CrR 3.5 hearing; and (3) the trial court failed to enter written findings or issue a clear and comprehensive oral opinion about the voluntariness of her waiver.

The State replies that (1) substantial evidence supports the trial court’s determination that Kennedy gave her statements voluntarily; (2) defense counsel did not object to the court’s failure to advise Kennedy concerning her right to testify at the CrR 3.5 hearing; and (3) the trial court did enter written Findings of Fact and Conclusions of Law.

1. Miranda waiver
Upon arrest, an accused person must be advised of the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Here, there is substantial evidence that (1) Kennedy waived these rights when the officer read her the Miranda warnings at the scene; (2) she indicated that she understood the rights; and (3) she then volunteered information.[4] See State v. Johnson, 94 Wn. App. 882, 897-98, 974 P.2d 855 (1999), review denied, 139 Wn.2d 1028 (2001). And before her interview at the police station, she was re-advised of her rights, and signed a written waiver.

Kennedy suggests that because the State failed to enter the rights card into evidence, we cannot determine whether it adequately stated all Miranda warnings. But circumstantial evidence can be sufficient. See, e.g., State v. Zamora, 63 Wn. App. 220, 223, 817 P.2d 880 (1991), overruled on other grounds, State v. Silva-Baltazar, 125 Wn.2d 472, 886 P.2d 138 (1994). The officer’s testimony, that he gave Kennedy her Miranda warnings in the presence of another officer using a standard rights card, is adequate circumstantial evidence that the card contained the proper warnings and that they were read to her. Furthermore, the police department’s standard “advise of rights sheet” (although not the rights card) was in evidence. Most telling, however, was Kennedy’s own demonstration that she understood her rights when she exercised them during the interview at the police station: She stated that she thought she needed a lawyer and stopped the interview.

2. Rights at CrR 3.5 hearing
In a CrR 3.5 hearing, the trial court has the “duty” to “inform the defendant that”:

(1) he may, but need not, testify at the hearing on the circumstances surrounding the statement; (2) if he does testify at the hearing, he will be subject to cross examination with respect to the circumstances surrounding the statement and with respect to his credibility; (3) if he does testify at the hearing, he does not by so testifying waive his right to remain silent during the trial; and (4) if he does testify at the hearing, neither this fact nor his testimony at the hearing shall be mentioned to the jury unless he testifies concerning the statement at trial.

CrR 3.5(b). This did not happen here.

But Kennedy did not object to the trial court’s failure to apprise her of these rights. “[T]he mere failure to give the CrR 3.5(b) advice of rights is not constitutional error and [the defendant] cannot raise it for the first time on appeal.” State v. Williams, 137 Wn.2d 746, 753-54, 975 P.2d 963 (1999) (characterizing CrR 3.5(b) as merely a pretrial, procedural, mechanical device).

Kennedy also argues that we should exercise our discretionary power under RAP 2.5(a) to review this issue, despite her failure to raise it below. But she provides no reason to compel us to do so and we see none.[5] Thus, we decline to consider the issue.

3. Findings of Fact and Conclusions of Law
Kennedy also asserts that the trial court failed to enter written facts and conclusions as required under CrR 3.5(c) and that this error is not harmless because the trial court’s oral rulings are not clear. We need not address this argument because the trial court did enter written CrR 3.5 findings and conclusions on February 21, 2003.

Although this occurred well after both the CrR 3.5 hearing date (October 31, 2001) and after Kennedy filed her Appellant’s Brief (August 2, 2002), this does not render them non-compliant. On the contrary, late findings and conclusions may be “submitted and entered even while an appeal is pending” absent prejudice to the defendant. State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996) (no prejudice when “appeal was not delayed” and “State did not tailor or alter the findings and conclusions to meet issues and arguments” in defendant’s appellate brief) (quoting State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125, review denied, 102 Wn.2d 1024 (1984)). Kennedy has asserted no prejudice, and we see none.[6] Moreover, there has been no apparent delay of the appeal or alteration of the trial court’s oral ruling. Thus, we find no reversible error in the trial court’s timing of its entry of written findings of fact and conclusions of law.

II. Instructions A. Unanimity
Kennedy argues that the trial court should have given a unanimity instruction because the State charged her with one count of possession but presented evidence of two instances of possession the purse and the jacket.[7] The State contends that such an instruction was unnecessary because the two instances of possession constituted a continuing course of conduct.

“In a prosecution for unlawful possession under RCW 69.50.401(a) and (d) the State must establish two elements: the nature of the substance and the fact of possession by the defendant.” State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Kennedy asserted the defense of unwitting possession. The defense of unwitting possession implicitly concedes the elements of the State’s charge, but it argues that the possession was excusable for one reason or another. The defendant bears the burden of proving unwitting possession by a preponderance of the evidence. See City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304
(2000). See also State v. Cleppe, 96 Wn.2d 373, 380-81, 635 P.2d 435
(1981).

“[A] defendant may be convicted only when a unanimous jury concludes the criminal act charged in the information has been committed.” State v. King, 75 Wn. App. 899, 902, 878 P.2d 466 (1994), review denied, 125 Wn.2d 1021 (1995). In order to ensure jury unanimity in cases where the State introduces evidence of multiple criminal acts but files only a single charge, the State must elect a single act on which it will rely for conviction or the jury must be instructed that all members must agree as to what act was proved beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). The jury verdict should be overturned “if a rational trier of fact could have a reasonable doubt as to whether each incident established the crime beyond a reasonable doubt.” State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988) (quoting State v. Loehner, 42 Wn. App. 408, 411, 711 P.2d 377 (1985) (Scholfield, J., concurring)). “This approach presumes that the error was prejudicial and allows for the presumption to be overcome only if no rational juror could have a reasonable doubt as to any one of the incidents alleged.” Kitchen, 110 Wn.2d at 411.

But a Petrich instruction is not required where the evidence indicates a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). “To determine whether criminal conduct constitutes one continuing act, the facts must be evaluated in a commonsense manner.” Handran, 113 Wn.2d at 17.

Both parties cite King, 75 Wn. App. 899, to support their arguments.

In King, the driver of the car was pulled over and arrested on a warrant; King was a passenger. As King and the driver got out of the vehicle, they both made throwing motions toward the car’s interior. Police arrested King after finding a Tylenol bottle containing rock cocaine between the driver and passenger seats. Police also claimed to have found cocaine inside a fanny pack King was wearing, which King maintained an officer had planted. King was charged with one count of unlawful possession of a controlled substance. King, 75 Wn. App. at 901-02.

At King’s trial, the State failed to rely on one incident of possession for a conviction, and the court failed to give a unanimity instruction. King, 75 Wn. App. at 903. Division One reversed the conviction because it could not “say that the jury acted with unanimity as to one act of possession.” King, 75 Wn. App. at 903. Specifically, the court reasoned that the evidence demonstrated “two distinct instances of cocaine possession occurring at different times, in different places, and involving two different containers the Tylenol bottle and the fanny pack.” King, 75 Wn. App. at 903. The court noted that conflicting evidence as to which of the car’s occupants constructively possessed the Tylenol bottle, and whether King possessed the cocaine in the fanny pack, creating reasonable doubt as to his guilt. King, 75 Wn. App. at 903-04.

The State also cites State v. Love, 80 Wn. App. 357, 908 P.2d 395, review denied, 129 Wn.2d 1016 (1996). In Love, police officers monitoring the defendant’s residence before executing a search warrant noticed Love leaving the residence in his car. The officers stopped Love a few blocks away and served him with the warrant. While patting him down, the police found a hollow lip balm container holding five rocks of cocaine. In his residence, the police found 40 additional rocks of cocaine, guns, a large sum of money, plastic bindles, two scales, a cocaine pipe, and a scanner. Love was charged with one count of unlawful possession with intent to deliver. At trial, Love contended that the police had planted the cocaine on him and in his residence. No unanimity instruction was given, and Love was convicted as charged. Love, 80 Wn. App. at 358-60.

On appeal, Love argued that a unanimity instruction was required because the State did not rely on a single instance of possession. Love, 80 Wn. App. at 360. Division One affirmed the conviction, reasoning that “[t]he State’s theory at trial was that Love was a drug trafficker engaging in a continuous course of unlawful conduct.” Love, 80 Wn. App. at 360.

The court distinguished King on the basis of (1) the charged crimes possession versus possession with intent to deliver, Love, 80 Wn. App. at 362; and (2) the defenses asserted King denied that the Tylenol bottle belonged to him and argued that the police had planted the cocaine in his fanny pack. Love, 80 Wn. App. at 363.[8] The Love court reasoned that a rational juror in King could have concluded that the Tylenol bottle belonged to the driver and that the cocaine in the fanny pack belonged to King, or that the Tylenol bottle belonged to King and the police had planted cocaine in the fanny pack. Love, 80 Wn. App. at 363.

But in Love, the defendant alleged that the police planted all of the cocaine, both on his person and in the house. Thus, a rational juror was left with only two reasonable conclusions: The police planted all of the cocaine or none of the cocaine. Love, 80 Wn. App. at 363. Division One concluded that this sufficiently distinguished King from Love, negating the need for a unanimity instruction in the latter case.

Similarly here, Kennedy has not denied that she possessed both the heroin in her jacket pocket and the heroin in her purse. Rather, her defense was that her possession was unwitting someone else put it there without her knowledge, similar to Love’s defense above. Thus, as in Love, a rational juror was left with only two reasonable conclusions: (1) Someone other than Kennedy placed the heroin in her possession, or (2) she was lying and knew that she possessed it. And, again as in Love, there was no need for a Petrich unanimity instruction.

Thus, the State proved beyond a reasonable doubt each of the elements of the charged crime with respect to each instance of possession, no rational juror could find otherwise, and any error in failing to give a unanimity instruction was harmless beyond a reasonable doubt.

B. Reasonable Doubt
The trial court departed from the traditional pattern instruction defining reasonable doubt[9] and, instead, gave the following instruction accepted by Division One in State v. Castle, 86 Wn. App. 48, 52-58, 935 P.2d 656, review denied, 133 Wn.2d 1014 (1997):

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find her guilty. If on the other hand, you think there is a real possibility that she is not guilty, you must give her the benefit of the doubt and find her not guilty.

Clerk’s Papers (CP) at 22.

Kennedy argues that this instruction relieved the State of its burden of proving the charged crime beyond a reasonable doubt in at least two respects. First, it required the jury to find a “real possibility” of non-guilt for acquittal, which Kennedy asserts impermissibly implies a greater degree of doubt than does the phrase “reasonable doubt.” Second, Kennedy contends that the phrase “possible doubt” is likely to confuse the jury in that it is similar to “reasonable doubt,” yet the trial court did not distinguish the phrases in any way. Furthermore, the sentence that contains this phrase focuses on what the State need not do, rather than on defining the State’s burden in an affirmative manner.

The State responds simply that Kennedy expressly agreed to the instruction at trial and, thus, may not complain about it on appeal.

The invited error doctrine prohibits a party from setting up an error at trial and then complaining of it on appeal. In re Tortorelli, 149 Wn.2d 82, 94, 66 P.3d 606 (2003). Accordingly, we do not consider the propriety of the instruction to which Kennedy expressly agreed.[10]

III. Prosecutorial Misconduct
Kennedy next argues that the prosecutor committed misconduct warranting reversal during his closing argument by expressing his personal opinion of her guilt and about the evidence. The State replies that the misconduct was not so egregious as to warrant reversal.

A prosecutor may not express a personal opinion about a witness’s credibility or the defendant’s guilt. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984); RPC 3.4(f). “However, prejudicial error does not occur until it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion.” State v. Swan, 114 Wn.2d 613, 664, 790 P.2d 610 (1990). Despite this, unless prosecutorial conduct is flagrant and ill-intentioned, and the prejudice resulting therefrom so marked and enduring that corrective instructions or admonitions could not neutralized its effect, any objection to such conduct is waived by failure to make an adequate timely objection and request a curative instruction.

Swan, 114 Wn.2d at 661.

“Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney’s comments as well as their prejudicial effect.” State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). “Allegedly improper arguments should be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.” Russell, 125 Wn.2d at 85-86. “[A] conviction must be reversed only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.” Russell, 125 Wn.2d at 86. Here, Kennedy has failed to show reversible prosecutorial misconduct.

Although the prosecutor improperly expressed his opinion as many as five times during closing argument, Kennedy failed to object at trial to every remark to which she now assigns error, including the remark that she now cites as the prosecutor’s “most egregious” statement: “I believe the state has proved its case beyond a reasonable doubt.” RP Vol. III at 55.[11] “[C]ounsel may not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use the claimed misconduct as a life preserver on a motion for new trial or an appeal.” Swan, 114 Wn.2d at 661 (quoting Jones v. Hogan, 56 Wn.2d 23, 27, 351 P.2d 153
(1960)).

Furthermore, the court instructed the jury that

The attorneys’ remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.

CP at 20.

We presume that a jury will follow the court’s instructions. State v. Graham, 59 Wn. App. 418, 428, 798 P.2d 314 (1990). Kennedy offers no proof that the jury failed to do so. Given this presumption, coupled with Kennedy’s failure to object below or show prejudice and the futility of a curative instruction, her prosecutorial misconduct argument fails.

IV. Appearance of Fairness
Finally, Kennedy argues that the trial court’s harsh comments to defense counsel suggested an appearance of unfair bias and impeded her vigorous defense. The State replies that trial court reprimanded both the prosecutor and defense counsel and, thus, showed no bias against the defense.

“The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of bias or prejudice.” State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972). “The critical concern in determining whether a proceeding appears to be fair is how it would appear to a reasonably prudent and disinterested person.”, 96 Wn. App. 346, 354, 979 P.2d 885
(1999) (quoting Brister v. Council of the City of Tacoma, 27 Wn. App. 474, 486-87, 619 P.2d 982, review denied, 95 Wn.2d 1006
(1980)). To prevail on such a claim, a party must provide some evidence of the judge’s actual or potential bias. State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992).

Here, Kennedy cites two instances where the trial court essentially told defense counsel to speed up. First, at the CrR 3.5 hearing, after defense counsel cross-examined, re-cross-examined, and further cross-examined a police officer, defense counsel repeated a just-asked question about drawing an inference of intent to traffic in drugs from possession of the notebook. The trial court interjected, “Mr. Gasnick, I have a jury waiting.” RP Vol. I at 84.

Second, Kennedy cites voir dire of an officer outside the jury’s presence about a state crime lab report that had detected heroin. In context, (1) defense counsel objected to the State’s questioning of an officer on whether the substance was heroin before admitting the results of the lab report (Exhibit 3); (2) the State mistakenly thought defense counsel was objecting to a different exhibit (Exhibit 2); then (3) defense counsel began to voir dire the officer on a different subject, chain of custody. After clarifying that defense counsel was apparently trying to raise a chain of custody argument, the trial court stated:

Let’s put it this way, we are not going to play these games . . . Mr. Gasnick’s last two trials had generated angry letters from jurors about wasting their time. And, in this case, if you want to raise a chain of custody argument you may do so, but let’s do it with some efficiency. . . .

But throughout the course of this morning, Mr. Gasnick, your arguments have been a waste of the Court’s time in large part. When you argue over the identification of the defendant and make a record on that, frankly, you’re wasting our time.

. . .

And I’m going to control this trial so that doesn’t happen.

RP Vol. II at 41-42.

The trial court later seemed to sustain defense counsel’s chain of custody objection, but it allowed the State to “inquire further” of the officer. An atmosphere of confusion seemed to pervade this sequence of events, but the court’s major concern both here and throughout the trial was maintaining control of the trial. Furthermore, the judge also chastised the prosecutor on more than one occasion.

These incidents do not show bias. Rather, they show a trial judge exercising his broad discretion “to control the trial of the case,”, 61 Wn.2d 102, 105, 377 P.2d 252 (1962), and to enforce the central purpose of the Rules of Evidence of eliminating “unjustifiable expense and delay.” ER 102.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON and BRIDGEWATER, JJ., concur.