State of Washington v. Adrian Sutlej Samalia ( 2016 )


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  •                                                                           FILED
    March 8, 2016
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                          )
    )         No. 31611-4-111
    Respondent,              )
    )
    v.                                     )
    )
    ADRIAN SUTLEJ SAMALIA,                        )         UNPUBLISHED OPINION
    )
    Appellant.               )
    KORSMO, J. -Adrian Samalia appeals his conviction for first degree robbery,
    arguing that the evidence was insufficient and that several errors deprived him of a fair
    trial. Concluding the evidence was sufficient, and the trial court properly dealt with the
    other issues, we affirm.
    FACTS
    This case has its genesis in the theft of packages from a United Parcel Service
    (UPS) truck parked in an alley in Yakima on December 9, 2011. A delivery driver left
    the door to the storage area of his truck open while he went inside a business to pick up
    some packages. When the driver returned, he saw two males inside the truck; each ran
    off with a package when they heard him speak out.
    No. 31611-4-III
    State v. Samalia
    The men fled down the alley with the driver and the business owner in pursuit.
    The second man dropped his package and pulled out a gun. He pointed it at the business
    owner and both pursuers stopped. The two men got into a vehicle and left. The business
    owner reported the license plate of the vehicle.
    Officer Tarin Miller located and stopped the vehicle. A passenger in the backseat
    fled; the officer pursued until the suspect discarded a gun. The officer then secured the
    weapon and called in the fleeing suspect's direction to other responding officers. A dog
    tracked the suspect to a carport where the police arrested Mr. Samalia. While Officer
    Miller pursued Samalia, the car fled. Police located it later that night. A search of the
    vehicle revealed Mr. Samalia's identification card in the back seat.
    Mr. Samalia was charged with first degree robbery as both a principal and as an
    accomplice. 1 Also charged with first degree robbery were Travis Cliett and Stacey
    Melton. Mr. Cliett was identified as the first robber who got away with the package,
    while Ms. Melton, the owner of the vehicle used in the escape, was accused of being the
    get-away driver. Mr. Cliett's case was tried separately.2 In exchange for her agreement
    to testify, Ms. Melton was allowed to plead guilty to a gross misdemeanor offense of
    1
    Mr. Samalia was also charged with unlawful possession of a firearm out of the
    incident. That charged was heard by the bench. Mr. Samalia was acquitted.
    2
    Mr. Cliett was convicted of the robbery and other charges. His appeal is pending
    in this court. See Court of Appeals no. 32253-0-III.
    2
    No. 31611-4-111
    State v. Samalia
    rendering criminal assistance. The prosecutor would recommend that she be sentenced to
    the 22 days she had already served in custody.
    The matter proceeded to jury trial in the Yakima County Courthouse, a building
    that generally closes at 4:00 p.m. Mr. Samalia's trial ran later than 4:00 p.m. on at least
    three occasions. On those days, the court had security keep the doors to the courthouse
    unlocked. However, the sign by the front door and the court's website both still indicated
    the court closed at 4:00 p.m.
    Issues in this appeal arise from the trial testimony of two of the witnesses. Officer
    Chris Taylor testified that he searched the Melton vehicle at the police garage and found
    Mr. Samalia' s identification card in a wallet in the back seat. Defense counsel cross-
    examined Officer Taylor at length on the fact that he had not observed the vehicle prior to
    the search. Counsel then got the officer to admit that he "assumed" Mr. Samalia had left
    the identification in the car. A series of questions ensued which confirmed that the
    officer did not know when the wallet had been placed in the car. Counsel then asked the
    officer if he only assumed that Mr. Samalia left the wallet in the car because it advanced
    the State's case. The court sustained the prosecutor's objection to the question. Counsel
    then asked why the officer would assume it. The officer answered:
    Because another officer stopped that car. Saw Mr. Samalia run from it. He
    was detained shortly thereafter in a very immediate proximity to where the
    car was. Based on my training experience I know these officers aren't lying.
    3 Tr. of Proceedings (TP) at 333.
    3
    No. 31611-4-III
    State v. Samalia
    Defense counsel objected to the answer and the court struck the final sentence. TP
    at 334. However, unchastened by the experience, counsel then confirmed that the officer
    was familiar with the rules about testifying before stating "you're willing to break those
    rules if you think it will help get a conviction." TP at 334. The court sustained an
    objection and counsel ended his cross-examination.
    Ms. Melton later testified to her involvement in the day's activities. She stated
    that Cliett and Samalia had run to her car. Cliett carried a package and Samalia sat in the
    back seat. Samilia fled when the officer stopped the vehicle. Defense counsel began his
    cross-examination by getting Ms. Melton to admit that she initially had lied to the police
    concerning her car and being with Mr. Samalia that day. Counsel had her confirm that
    she originally had been charged with first degree robbery and asked her what the
    penalties were for that crime. TP at 393. An objection was raised and the jury was
    excused.
    During the ensuing argument, defense counsel insisted that he was permitted to
    question the witness concerning the fact that the robbery charge carried a maximum
    sentence of life in prison. The court believed it would be prejudicial for the jury to know
    that fact. The court indicated that counsel could examine the witness about how she
    faced substantially less punishment for the rendering offense. Counsel then got Ms.
    Melton to agree that her expected punishment was much less significant than the robbery
    punishment would have been, "almost infinitesimal by comparison." TP at 433. She also
    4
    No. 31611-4-III
    State v. Samalia
    agreed that she received an "incredible benefit" for her testimony. TP at 434. She told
    jurors that the new charge was a gross misdemeanor offense and that she would only
    receive the "twenty-something" days she had already served. TP at 437.
    The court instructed the jury on accomplice liability. The court rejected two
    defense instructional requests that would have amended the "intent" and "use of force"
    instructions. The defense argued the case to the jury that the State had not shown that a
    robbery occurred or that his client was involved. Nonetheless, the jury found Mr.
    Samalia guilty of first degree robbery.
    Immediately after the verdict was read, the defense sought a new trial on the basis
    of Officer Taylor's testimony and the prosecutor's use in closing argument of one
    PowerPoint slide stating that the defendant was "GUILTY." The court denied the
    motion, reasoning that its actions in striking the challenged testimony was sufficient and
    that the slide did not amount to misconduct.
    The court ultimately imposed a standard range sentence. Mr. Samalia timely
    appealed to this court.
    ANALYSIS
    Mr. Samalia raises six challenges. We first consider his evidentiary sufficiency
    challenge. We then address whether the jury was instructed properly, whether cross-
    examination of Ms. Melton was unduly restricted, whether the court erred in denying the
    motion for a new trial, and whether the courtroom was erroneously closed to the public.
    5
    No. 31611-4-III
    State v. Samalia
    In light of our conclusion that there were not multiple errors, we do not address the
    cumulative error claim.
    Evidentiary Sufficiency
    Mr. Samalia argues that there was insufficient evidence of robbery for two
    reasons-he had already dropped his package before pulling out the gun and there was no
    evidence that he knew Cliett had retained his package. Properly viewed, the evidence did
    support the jury's determination.
    Well settled standards govern our review of this issue. Evidence is sufficient to
    support a verdict if the trier of fact has a factual basis for finding each element of the
    offense proved beyond a reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 319, 99 S.
    Ct. 2781, 61 L Ed. 2d 560 (1979); State v. Green, 
    94 Wash. 2d 216
    , 221-222, 
    616 P.2d 628
    (1980). The reviewing court will consider the evidence in a light most favorable to the
    prosecution. 
    Green, 94 Wash. 2d at 221
    .
    "A person commits robbery when he or she unlawfully takes personal property
    from the person of another or in his or her presence against his or her will by the use or
    threatened use of immediate force, violence, or fear of injury to that person or his or her
    property or the person or property of anyone." RCW 9A.56.190. This statute reflects a
    transactional view of the crime rather than the former common law standard that force
    used during a robbery needed to be contemporaneous with the taking. State v.
    Handburgh, 
    119 Wash. 2d 284
    , 
    830 P.2d 641
    (1992). Under the transactional view, a taking
    6
    No. 31611-4-III
    State v. Samalia
    can occur outside the presence of the victim, and the necessary force to constitute robbery
    can be found in the forceful retention of stolen property that was peaceably taken. 
    Id. Washington's robbery
    statute simply requires that the force be used either to obtain or
    retain property, or to overcome resistance to the taking. State v. Johnson, 
    155 Wash. 2d 609
    , 611, 
    121 P.3d 91
    (2005).
    To convict Mr. Samalia on a theory of accomplice liability, the State had to prove
    that (1) "With knowledge that it will promote or facilitate the commission of the crime"
    he (2) "Aids ... such other person in planning or committing it." RCW 9A.08.020. The
    knowledge requirement is general knowledge of the crime: '" Specific knowledge of the
    elements of the coparticipant's crime need not be proved to convict one as an
    accomplice.'" State v. Roberts, 
    142 Wash. 2d 471
    , 512, 14 P .3d 713 (2000) ( quoting State
    v. Rice, 
    102 Wash. 2d 120
    , 125, 
    683 P.2d 199
    (1984)). Because of this, the person must be
    generally aware of the type of crime charged, but not necessarily the degree of it. In re
    Pers. Restraint of Sarausad, 
    109 Wash. App. 824
    , 836, 
    39 P.3d 308
    (2001). Where the
    elements of a crime are split between accomplices, all of the participants are guilty of the
    crime. See State v. Haack, 
    88 Wash. App. 423
    , 427-428, 
    958 P.2d 1001
    (1997).
    Mr. Samalia first argues that because he abandoned his purloined property before
    pulling a weapon, he was not guilty of robbery under Johnson. While his view of
    Johnson is factually accurate, it does not aid him here. In Johnson, a man stole items
    from a store, but abandoned them when chased by a security guard. He then used force
    7
    No. 31611-4-III
    State v. Samalia
    to escape from the 
    guard. 155 Wash. 2d at 610
    . The court ruled that force used after
    abandonment of property is not force used to take or retain property under the terms of
    the statute. 
    Id. at 611.
    Johnson did not involve an accomplice. Because Mr. Cliett
    retained his stolen package after Mr. Samalia pulled a gun on the pursuers, the evidence
    supported the view that Mr. Samalia was guilty as an accomplice to that taking.
    To counter this argument, Mr. Samalia contends that the evidence was insufficient
    to show that he aided Mr. Cliett because he did not know Cliett had retained the property
    since they were out of sight of each other. The facts, however, supported a contrary view
    of the evidence. The business owner testified that the two men ran off on the same side
    of the truck with one a little ahead of the other. There was no evidence that Cliett
    dropped his package or that Samalia had any reason to believe he did. Further, Ms.
    Melton testified that Cliett had a package with him when the two men returned to her car.
    A jury could infer from this testimony that Mr. Samalia knew that Mr. Cliett still retained
    his package when he pulled out his gun. There was no reason for him to believe
    otherwise.
    Properly viewed, the evidence supported the jury's verdict. It was sufficient.
    Jury Instructions
    Mr. Samalia argues that the court erred by failing to give his two requested
    instructions, resulting in the court's instructions misstating the law. The court's
    8
    No. 31611-4-III
    State v. Samalia
    instructions were proper and allowed the defense to argue its theory of the case. There
    was no error.
    Long settled standards also govern this argument. Jury instructions are sufficient if
    they correctly state the law, are not misleading, and allow the parties to argue their
    respective theories of the case. State v. Dana, 
    73 Wash. 2d 533
    , 536-537, 
    439 P.2d 403
    (1968). The trial court also is granted broad discretion in determining the wording and
    number of jury instructions. Petersen v. State, 
    100 Wash. 2d 421
    , 440, 
    671 P.2d 230
    (1983).
    Discretion is abused when it is exercised on untenable grounds or for untenable reasons.
    State ex rel. Carroll v. Junker, 
    79 Wash. 2d 12
    , 26, 
    482 P.2d 775
    (1971).
    The elements instruction accurately stated the law of robbery. It read:
    To convict the defendant of the crime of First Degree Robbery, each
    of the following elements of the crime must be proved beyond a reasonable
    doubt:
    (1) That on or about December 9, 2011, the defendant or an
    accomplice unlawfully took personal property of Vernon Place
    and/or UPS in the presence of Vernon Place;
    (2) That the defendant or an accomplice intended to commit theft of
    the property;
    (3) That the taking was against Vernon Place's will by the defendant
    or an accomplice's use or threatened use of immediate force,
    violence or fear of injury to that person;
    (4) That force or fear was used by the defendant or an accomplice to
    obtain or retain possession of the property or to prevent or overcome
    resistance to the taking;
    (5) That in the commission of these acts or in immediate flight
    therefrom the defendant or an accomplice
    (a) was armed with a deadly weapon; or
    9
    No. 31611-4-III
    State v. Samalia
    (b) displayed what appeared to be a firearm or other deadly
    weapon; and
    (6) That the acts occurred in the State of Washington.
    Clerk's Papers (CP) at 89. The above instruction mirrors the robbery statutes. Cf RCW
    9A.56.190 and RCW 9A.56.200. 3
    This instruction also allowed Mr. Samalia to argue his theory of the case that
    because he abandoned the property prior to pulling out the gun he did not commit
    robbery. The instruction's fourth element requires that "force or fear was used ... to
    obtain or retain possession of the property or to prevent or overcome resistance to the
    taking." CP at 89 (emphasis added). Mr. Samalia was free to use this language to argue
    that because he had dropped the box, he was not using force to "retain possession of the
    property." 
    Id. In fact,
    defense counsel made this argument in closing. TP at 621.
    Mr. Samalia also proposed an additional instruction that read:
    The force used must relate to the taking or retention of the property, either
    as force used directly in the taking or retention or as force used to prevent
    or overcome resistance "to the taking." Force used merely in an attempt to
    escape after abandoning the property is not a robbery.
    CP at 72 (emphasis added). The trial court rejected this instruction because the final
    sentence could confuse the jury. Specifically, the court believed that due to the
    accomplice instruction, the proposed last sentence on abandonment would cause
    3Element two contains the nonstatutory element of intent to commit theft. In re
    Pers. Restraint of Lavery, 
    154 Wash. 2d 249
    , 255, 
    111 P.3d 837
    (2005) (robbery includes
    the nonstatutory element of specific intent to steal).
    10
    No. 31611-4-III
    State v. Samalia
    confusion. Because Mr. Samalia was still able to argue his theory of the case absent this
    instruction, the instructions were sufficient and the trial court did not abuse its discretion.
    Mr. Samalia's next argument is that the accomplice liability instruction was
    improper because it would allow the jury to convict him even ifhe only had the intent to
    commit theft. For accomplice liability, the person must have knowledge that his or her
    conduct will aid in the commission of the crime. RCW 9A.08.020(3); State v. 
    Roberts, 142 Wash. 2d at 513
    . In this case, the accomplice liability instruction stated in relevant part:
    A person is an accomplice in the commission of a crime if, with
    knowledge that it will promote or facilitate the commission of the crime of
    First Degree Robbery, he either:
    ( 1) Solicits, commands, encourages, or requests another person to
    commit the crime; or
    (2) Aids or agrees to aid another person in planning or committing
    the crime.
    CP at 82. This instruction also mirrors the accomplice liability statute. See RCW
    9A.08.020(3). It accurately stated the law of accomplice liability.
    Mr. Samalia argues that this instruction and the to-convict instruction allowed the
    jury to convict a person of robbery even if he only intended to commit theft. He
    compares this situation with State v. Grendahl, 
    110 Wash. App. 905
    , 908, 
    43 P.3d 76
    (2002). The comparison fails because of a critical factual difference between the two
    cases.
    11
    No. 31611-4-111
    State v. Samalia
    In Grendahl this court concluded that identical jury instructions were erroneous
    because the defendant, who was driving the get-away car while an accomplice was
    stealing a woman's unattended purse, was unaware of the fact that the accomplice
    actually used force to accomplish the theft, thereby elevating the crime to robbery. 
    Id. at 906-910.
    Since the two defendants did not share the same intent, the instructions were
    erroneous as to Mr. Grendahl who had agreed to take part only in a theft. 
    Id. at 910-911.
    This case, however, is in the opposite fact pattern. Here it was Mr. Samalia whose
    actions elevated the planned theft into a robbery. There was no possibility that he
    erroneously could be convicted as an accomplice to robbery due to Mr. Cliett acting
    beyond the mutually agreed upon theft. Instead, he was the one who used force and
    converted the package theft into a robbery.
    The court's instructions were correct. There was no error in denying the
    defendant's requested instructions because the defense was still able to argue its theory of
    the case.
    Cross-examination of Ms. Melton
    Mr. Samalia next argues that he was deprived of his right to cross-examine Ms.
    Melton effectively because he was not permitted to ask her the maximum penalty for the
    original charge of first degree robbery. The trial court did not abuse its discretion in this
    matter, nor was the defense harmed by the limitation.
    12
    No. 31611-4-III
    State v. Samalia
    An accused has the right under the Sixth Amendment to the United States
    Constitution to confront the witnesses against him. U.S. Const. amend. VI; Crawford v.
    Washington, 
    541 U.S. 36
    , 42, 51, 
    124 S. Ct. 1354
    , 
    158 L. Ed. 2d 177
    (2004). This right,
    which applies to the states via the Fourteenth Amendment's Due Process Clause,
    necessarily speaks to a defendant's right to cross-examine adverse witnesses. Pointer v.
    Texas, 
    380 U.S. 400
    , 404-405, 
    85 S. Ct. 1065
    , 
    13 L. Ed. 2d 923
    (1965). However, the
    right to cross-examine witnesses is not absolute; the subject-matter of the cross-
    examination is "limited by general considerations of relevance." State v. Darden, 
    145 Wash. 2d 612
    , 621, 
    41 P.3d 1189
    (2002) (citing ER 401 and ER 403).
    Washington follows a three-pronged approach to determine the limitations of a
    defendant's confrontation clause right to cross-examination. 
    Id. at 622.
    First, the
    evidence sought must have at least minimal relevance. 
    Id. Second, if
    relevant, the
    burden is on the State to show that the evidence is "so prejudicial as to disrupt the
    fairness of the fact-finding process at trial." 
    Id. Third, the
    court must balance the State's
    interest in excluding prejudicial evidence against the defendant's need for the
    information; "only if the State's interest outweighs the defendant's need can otherwise
    relevant information be withheld." 
    Id. Ultimately, restrictions
    on cross-examination are
    within the discretion of the trial court. This court reviews for abuse of discretion. State
    v. Fisher, 
    165 Wash. 2d 727
    , 752, 
    202 P.3d 937
    (2009).
    13
    No. 31611-4-III
    State v. Samalia
    Bias evidence is generally relevant. State v. Tate, 
    2 Wash. App. 241
    , 247, 
    469 P.2d 999
    (1970). Further, a defendant enjoys more latitude to expose the bias of a key
    witness. 
    Darden, 145 Wash. 2d at 619
    . In situations where the accomplice has entered a
    plea of guilty, but not yet been sentenced, it is even more important that the trial court
    give counsel "great latitude in cross-examination" to ascertain whether the witness
    expected favorable treatment as a result of his testimony. 
    Tate, 2 Wash. App. at 247
    .
    Mr. Samalia argues that he should have been able to ask about what sentence Ms.
    Melton faced under the original charge in order to expose the jury to her motivations and
    biases for testifying. The initial problem with this argument is that the defense never
    attempted to ask Ms. Melton what sentence she faced nor did the trial court prohibit him
    from doing so. Under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A. RCW, a
    felon will be sentenced within a specified sentence range dependent on the seriousness of
    the offense and the offender's prior criminal history unless aggravating or mitigating
    circumstances exist. RCW 9.94A.505(2)(x), .530(1), .535; see generally State v. Jones,
    
    159 Wash. 2d 231
    , 236-237, 
    149 P.3d 636
    (2006); State v. Nordby, 
    106 Wash. 2d 514
    , 516,
    723 P .2d 1117 ( 1986). An exceptional sentence may only exceed the standard range if
    the prosecutor provides notice and proves the existence of an aggravating factor. RCW
    9.94A.535-.537; State v. Siers, 
    174 Wash. 2d 269
    , 277, 
    274 P.3d 358
    (2012). There is no
    indication that the prosecutor ever sought an exceptional sentence against any of the
    robbery suspects.
    14
    No. 31611-4-III
    State v. Samalia
    There was no effort to identify the standard range sentence Melton faced for the
    first degree robbery charge. Instead of comparing the high end of her range to the actual
    sentence she anticipated receiving, thereby showing exactly what she gained from
    testifying, defense counsel sought to ask about the statutory maximum sentence facing a
    person convicted of first degree robbery. That information simply was not relevant to
    Ms. Melton's situation. 4 She did not face a potential maximum sentence.
    The information also was potentially prejudicial to both Mr. Samalia and to the
    State. Although jurors are told they have no role in punishment decisions, some juror
    could be misled by the maximum sentence information and consider it to either the
    benefit or detriment of Mr. Samalia when adjudging the case. The potential for
    prejudicial misuse of the information was a tenable reason for excluding it.
    Exclusion of the maximum sentence also was not prejudicial to Mr. Samalia. He
    was allowed to do what he professed he wanted to do--show that Ms. Melton was getting
    a good deal. He had her testify to the "twenty-something" days she expected to serve on
    4
    Prior to the SRA the information would have been relevant. Under the prior
    indeterminate sentencing scheme, the court was required to sentence a felon to the
    maximum sentence and the parole board would impose a minimum term. After the
    minimum term was served, the parole board would then determine ·whether the offender
    would be released at some point prior to serving the maximum sentence. See RCW
    9.95.001, .010, .040. After enactment of the SRA, the trial judge took on the function of
    setting a minimum term for anyone sentenced under the indeterminate sentencing act.
    RCW 9.95.011.
    15
    No. 31611-4-III
    State v. Samalia
    the amended charge and obtained her agreement that the sentence was "almost
    infinitesimal by comparison" with the robbery charge. TP at 433. Counsel was then able
    to argue that her good deal was a reason to discredit Ms. Melton's testimony. 5 The
    defense was not prevented from doing what it wanted to do. As noted in Fisher,
    examination of the reasons for a witness's bias is different than examining the facts
    underlying those 
    reasons. 165 Wash. 2d at 752-753
    . The defendant is allowed to get the
    reasons for bias into the record, but not the factual basis. 
    Id. at 753.
    That was done here.
    The trial court properly excluded the irrelevant and potentially prejudicial
    information. The defense was left with alternative ways of obtaining similar information
    and did so. There was no error.
    Motion for a New Trial
    Mr. Samalia also argues that the trial court erred in denying his motion for a new
    trial. Once again the trial court did not abuse its discretion.
    We review a trial court's ruling on a motion to declare a mistrial or grant a new
    trial for abuse of discretion. E.g., State v. Weber, 
    99 Wash. 2d 158
    , 166, 
    659 P.2d 1102
    (1983) (mistrial); State v. Marks, 
    71 Wash. 2d 295
    , 302, 
    427 P.2d 1008
    (1967) (new trial).
    5 While Ms. Melton did help identify Mr. Samalia as one of the actors in this
    criminal drama, she was not the only one to do so. Between the shop owner's testimony,
    that of Officer Tarin Smith, the identification card, and the tracking of Mr. Samalia by the
    dog, he was tied to the offense.
    16
    No. 31611-4-111
    State v. Samalia
    "The question is not whether this court would have decided otherwise in the first
    instance, but whether the trial judge was justified in reaching his conclusion." State v.
    Taylor, 
    60 Wash. 2d 32
    , 42, 
    371 P.2d 617
    (1962).
    Mr. Samalia argues that the testimony of Officer Taylor vouched for other
    witnesses and that the prosecutor committed misconduct in concluding a PowerPoint
    presentation during closing argument with a slide that said "GUILTY". In each instance,
    the trial court struck the challenged conduct from the record. In ruling on the motion, the
    court concluded that its previous actions had adequately addressed the respective
    situations. That was a tenable rationale.
    With respect to the testimony of Officer Taylor, it was arguable whether the
    answer to counsel's question was error. One witness may not vouch for another. E.g.,
    State v. Jones, 
    117 Wash. App. 89
    , 91, 
    68 P.3d 1153
    (2003). Nonetheless, defense counsel
    asked why the officer believed as he did and the officer told him-he relied on fellow
    officers who he knew from his own experience were not lying to him. The answer was
    offered to answer the question asked, not to bolster the testimony of others. There was no
    good reason for asking the officer why he believed as he did, but once the question was
    asked, the defense was bound by the answer.
    Assuming error, however, this was not such egregious error that the court's
    direction to strike the testimony failed to cure the prejudice. It is unlikely that the jury
    17
    No. 31611-4-III
    State v. Samalia
    was unduly influenced by the non-surprising testimony that an officer relied on
    information from other officers and believed it credible.
    The issue of prosecutorial misconduct is even clearer. Use of a single slide with
    the word "GUILTY" does not amount to misconduct. State v. Walker, 
    182 Wash. 2d 463
    ,
    
    341 P.3d 976
    , cert. denied, 
    135 S. Ct. 2844
    (2015). There the court clarified an earlier
    decision and determined that mere use of the word "guilty," even in all capital letters,
    does not always constitute an improper expression of the prosecutor's personal opinion.
    
    Id. at 480
    n.6.
    Moreover, the court's decision to strike the slide certainly cured any error arising
    from the brief display. Jurors being asked by the prosecutor to find the defendant
    "guilty" cannot be surprised when the prosecutor actually uses the word "guilty" in
    closing argument. It was not an impermissible expression of personal opinion. It was the
    action the prosecutor asked the jury to take after deliberating on the case.
    The trial court did not abuse its discretion in denying the motion for a new trial.
    Courtroom Closure
    Finally, Mr. Samalia argues that the courtroom was improperly closed by a sign
    stating that the building would close at 4:00 p.m. This argument is one appellate courts
    have addressed on several occasions and is controlled by a decision of the Washington
    Supreme Court on virtually identical facts.
    18
    No. 31611-4-III
    State v. Samalia
    A defendant has a right to public trial. Const. art. I, § 22. This court reviews an
    alleged public trial violation de novo. State v. Easterling, 
    157 Wash. 2d 167
    , 173-174, 
    137 P.3d 825
    (2006). The defendant has the burden of showing that a courtroom closure
    occurred. State v. Koss, 
    181 Wash. 2d 493
    , 503, 
    334 P.3d 1042
    (2014).
    Here, nothing in records suggests there was a courtroom closure. While the
    courthouse normally closed at 4:00 p.m., the trial court continually commented on the
    record that it was keeping the courthouse unlocked when trial ran later than 4:00 p.m. to
    ensure public access. Mr. Samalia moved to supplement the record in this case with the
    record from a reference hearing in State v. Andy, No. 31018-3-III, another Yakima
    County case. See Commissioner's Ruling, State v. Samalia, No. 31611-4-III (Wash. Ct.
    App. Apr. 17, 2014) (granting motion). There, the trial court made findings of fact
    regarding the openness of the Yakima County Courthouse after 4:00 pm in Andy's trial.
    The trial court found that in spite of the sign, "members of the public will ... try the door
    before walking away." Verbatim Report of Proceedings (May 22, 2013) at 179. Further,
    the court found that "no member of the public was barred or prevented from entering the
    courthouse and attending the ... trial if they so desired because of the existence of [the
    sign]." 
    Id. Andy's case
    eventually reached the Washington Supreme Court. The court held
    that there was no public trial violation. State v. Andy, 
    182 Wash. 2d 294
    , 302, 
    340 P.3d 840
    (2014). Specifically the court relied on the trial court's finding that "the sign did not
    19
    No. 31611-4-III
    State v. Samalia
    deter any member of the public from accessing the courtroom." 
    Id. While the
    trial
    court's findings in the Andy record are specific to that trial, the general finding that
    members of the public will try the door before being deterred by the sign is equally
    applicable here. Given that finding and the holding in Andy, these facts are insufficient to
    demonstrate that the courtroom was closed. Accordingly, there was no public trial
    violation.
    Affirmed.
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be filed for public record pursuant to
    RCW 2.06.040.
    I CONCUR:
    20
    No. 31611-4-111
    FEARING, J. (concurring)- I concur in the affirmation of the first degree robbery
    conviction of appellant Adrian Samalia. I write separately because I disagree with the
    majority's analysis in two important respects.
    Cross-Examination of Stacey Melton
    Defense counsel asked the State's cooperative witness, Stacey Melton, at trial:
    SCOTT [Defense Counsel]: Ultimately, you were charged with First
    Degree Robbery. Were you not?
    MELTON: Yes.
    SCOTT: You and Adrian Samalia both?
    MELTON: Yes.
    SCOTT: And do you recall what the penalties for First Degree
    Robberies are?
    CHEN [State's Counsel]: Objection.
    JUDGE: Sustained.
    3 Tr. of Proceedings (TP) at 393. Note that defense counsel asked Melton if she
    "recalled" the penalties, not what were the penalties. Of course, most witnesses do not
    understand the subtleties of questions, such that Stacey Melton may not have answered
    the question with a simple yes or no, but, if she recalled, testified to her recollection of
    the penalties. Thus, we ask whether the trial court erred in excluding evidence of the
    No. 31611-4-111
    State v. Samalia
    possible penalties, including the maximum penalty, the State's witness faced if she
    refused to testify against Adrian Samalia.
    The majority writes that the maximum sentence for first degree robbery was
    irrelevant to Stacey Melton's "situation" and that she did not face a potential maximum
    sentence. Majority at 15. The majority does not disclose any basis for this observation.
    We know nothing about Stacey Melton's criminal history. For all we know, the State
    would have requested and the trial court would have imposed the highest possible
    sentence.
    Assuming the majority holds or impliedly holds that the maximum sentence of the
    cooperating witness is always irrelevant or always inadmissible, I disagree. No earlier
    Washington decision addresses this weighty issue. Cases from foreign jurisdictions
    primarily hold such evidence to be relevant and rule a bar of such testimony to require a
    new trial. I collate those decisions in the appendix.
    ER 401 declares:
    "Relevant evidence" means evidence having any tendency to make
    the existence of any fact that is of consequence to the determination of the
    action more probable or less probable than it would be without the
    evidence.
    (Emphasis added.) The threshold to admit relevant evidence is very low. State v.
    Darden, 
    145 Wash. 2d 612
    , 621, 
    41 P.3d 1189
    (2002). Even minimally relevant evidence is
    admissible. State v. 
    Darden, 145 Wash. 2d at 621
    . A defendant enjoys more latitude to
    expose the bias of a State's key witness. State v. 
    Darden, 145 Wash. 2d at 619
    .
    2
    No. 31611-4-III
    State v. Samalia
    One who faces a life sentence if one does not cooperate with the State has more
    reason to collaborate with the State than one who faces a five-year sentence. Therefore,
    the precise punishment, including the maximum amount of punishment one originally
    encountered before turning State's witness, holds some relevance to one's bias. The
    latitude afforded defendant in cross-examining a witness bolsters the admissibility of the
    maximum penalty confronting the witness before the agreement with the prosecution.
    The majority only tangentially mentions the basis on which the trial court
    excluded the evidence of the possible sentence facing Stacey Melton if she refused to
    oblige the State. The majority also omits that the trial court ruled the evidence germane.
    Contrary to the majority's ruling, the trial court ruled that the evidence was relevant. The
    trial court, nonetheless, excluded the evidence based on prejudice to Adrian Samalia, the
    State, or both parties. The State charged Stacey Melton, like Adrian Samalia, with first
    degree robbery. Thus, the jury would have heard the sentence also faced by Adrian
    Samalia. No Washington case weighs the prejudice resulting from the jury hearing the
    defendant's sentence range with the inability of the defendant to question the State's
    witness about the length of sentence she avoided. Cases from foreign jurisdictions
    disagree with one another on this significant question. I include a description of those
    decisions in the appendix. Some of those cases base the right to question the State's
    witness on her possible sentence on the United States Constitution's confrontation clause.
    I would reserve for another day the question of whether the defense may question
    the State's collaborating witness as to the maximum sentence or range of sentence faced
    3
    No. 31611-4-III
    State v. Samalia
    on the charge dismissed by the State in exchange for the witness's testimony regardless
    of whether the defendant faces the same charge. We need not answer these questions in
    this appeal because of a lack of prejudice to Adrian Samalia in being barred from asking
    these precise questions.
    In response to other questioning by defense counsel, Stacey Melton testified that
    the State had filed a very serious charge against her, that the State would dismiss the very
    serious charge for her testimony, that the State would reduce the robbery charge to a
    gross misdemeanor of rendering criminal assistance, that the State would permit her to
    plead to a charge infinitely less in seriousness, that her sentencing abided her testimony,
    that the low sentence depended on her testimony, that she believed the State connected
    the lower sentence to her testimony against Adrian Samalia, that she needed to testify
    favorably for the State, that the prosecution bestowed her an incredible benefit by her
    testifying, and that she would receive approximately a twenty-day sentence that she
    already served. In short, defense counsel completed an effective cross-examination.
    More importantly, other evidence overwhelmingly supported Adrian Samalia's
    conviction. A dog tracked Adrian Samalia as a fleeing suspect. Law enforcement found
    Samalia's identification on the backseat of the car. Samalia presented no alibi. He called
    no witnesses.
    One decision suggests that precluding the questioning of the State's witness as to
    the maximum sentence of a conviction she avoided is never harmless. State v. Bennett,
    
    550 So. 2d 201
    , 205 (La. Ct. App. 1989). Other cases employ a harmless error analysis.
    4
    No. 31611-4-111
    State v. Samalia
    United States v. Roan Eagle, 
    867 F.2d 436
    (8th Cir. 1989); Jackson v. State, 
    37 So. 3d 370
    (Fla. Dist. Ct. App. 2010); State v. Vogleson, 
    275 Ga. 637
    , 
    571 S.E.2d 752
    (2002). I
    know of no reason why a harmless error analysis should be applied to other errors, even
    constitutional errors, but not to this error that implicates the constitution's confrontation
    clause. Under Washington law, a constitutional error is harmless if the appellate court is
    assured beyond a reasonable doubt that the jury verdict is unattributable to the error.
    State v. Anderson, 
    171 Wash. 2d 764
    , 770, 
    254 P.3d 815
    (2011). This court employs the
    "overwhelming untainted evidence" test and looks to the untainted evidence to determine
    if it is so overwhelming that it necessarily leads to a finding of guilt. 
    Anderson, 171 Wash. 2d at 770
    (quoting State v. Guloy, 
    104 Wash. 2d 412
    , 426, 
    705 P.2d 1182
    (1985)). The
    untainted evidence against Adrian Samalia is overwhelming.
    Adrian Samalia also assigns error to the trial court's refusal to admit his proposed
    Exhibit 5 to impeach Stacey Melton. In his assignment, Samalia does not identify the
    nature of the exhibit. Presumably, the exhibit is the information filed by the State against
    Stacey Melton, which information included the potential sentence for first degree
    robbery. Samalia includes no argument in the body of his brief as to why exclusion of
    the exhibit constituted error. This court does not review issues not argued, briefed, or
    supported with citation to authority. RAP 10.3(a); Valente v. Bailey, 
    74 Wash. 2d 857
    , 858,
    
    447 P.2d 589
    (1968); Avellaneda v. State, 
    167 Wash. App. 474
    , 485 n.5, 
    273 P.3d 477
    (2012).
    5
    No. 31611-4-111
    State v. Samalia
    Slide of Guilt
    The majority writes that a single slide with the word "GUILTY" does not amount
    to prosecutorial misconduct. The majority cites State v. Walker, 
    182 Wash. 2d 463
    , 
    341 P.3d 976
    , cert. denied, 
    135 S. Ct. 2844
    (2015) for this proposition. Walker, like other
    cases preceding it, approved the use of visual aids during closing statements. The Walker
    court did not hold or even suggest that one slide using the word "GUILTY" does not
    constitute misconduct.
    Fearini,i
    6
    No. 31611-4-III
    State v. Samalia
    APPENDIX
    Federal Cases
    In United States v. Scheetz, 
    293 F.3d 175
    (4th Cir. 2002), the trial court allowed
    defense counsel to ask cooperating government witnesses about, and the witnesses
    testified to, the maximum and minimum sentences they faced before reaching an
    agreement with the government. The defendant appealed because the trial court
    disallowed questioning about sentencing guidelines. The appellate court affirmed, in
    part, because of the testimony concerning the maximum and minimum sentence.
    In United States v. Roan Eagle, 
    867 F.2d 436
    (8th Cir. 1989), the defendant
    complained about the trial court forbidding of defense counsel from questioning the
    government's witness about the details of her plea bargain. The reviewing court
    concluded the limitation was error, despite the trial court's concern that the jury would
    speculate as to whether the defendant faced a similar sentence. The court noted that the
    details of the plea are relevant to a jury assessing the credibility of the witness. The
    court, nonetheless, held the error to be harmless because the cooperating witness's
    testimony did little to incriminate the defendant.
    In United States v. Dorta, 783 F .2d 1179 (4th Cir. 1986), the defendants argued
    that the trial court erred in refusing to allow their counsel to cross-examine the
    government's chief witness concerning his belief as to what his maximum sentence could
    have been had he not cooperated with the government. The appeals court recognized that
    a witness's understanding of what benefits he will receive as a result of his cooperation
    7
    No. 31611-4-111
    State v. Samalia
    with the government is relevant and that the defendant is constitutionally entitled to
    explore this subject during cross-examination. The court affirmed the convictions,
    nonetheless, because defense counsel thoroughly examined the witness regarding his
    understanding of the use immunity he was granted for his grand jury testimony and his
    understanding of the implications of his plea agreement. The decision does not disclose
    whether the witness testified to the maximum sentence he faced.
    State Cases
    In Jackson v. State, 
    37 So. 3d 370
    (Fla. Dist. Ct. App. 2010), the trial court
    precluded defense counsel from questioning State witnesses as to the maximum and
    minimum sentences they avoided by testifying against the defendant. The reviewing
    court agreed with the defendant that the trial court committed error. The trial court
    affirmed the conviction, however, because the error was harmless.
    In State v. Vogleson, 
    275 Ga. 637
    , 
    571 S.E.2d 752
    (2002), the jury heard that the
    State's witness reached an agreement with the State to testify against the defendant in
    exchange for the State recommending a sentence of ten years. The trial court precluded,
    however, defense counsel from asking the witness about his understanding of the
    disparity between the sentence the State would recommend in exchange for his
    cooperation and the sentence he would have received without that cooperation. The
    Georgia Court of Appeals reversed and the Supreme Court affirmed the Court of
    Appeals. The State argued that such evidence was prejudicial because the jury might
    conclude that the defendant would receive the same sentence the witness faced without
    8
    No. 31611-4-III
    State v. Samalia
    cooperation. The Peach State Supreme Court answered that this problem could be
    addressed by the trial court giving a limiting instruction. The state high court held that
    the defendant's confrontation clause rights were infringed and, after reviewing other
    evidence, the court concluded the error was harmful.
    In State v. Brown, 
    303 S.C. 169
    , 
    399 S.E.2d 593
    (1991), the trial court sustained
    the State's objection to defense counsel asking the State's witness as to the mandatory
    length of punishment for the dropped charge. The reviewing court, relying on the United
    States Constitution's confrontation clause, held that the trial court abused its discretion in
    limiting cross-examination. The reviewing court remanded the case for a new trial. The
    court held the jury should be free to weigh the sentence the witness would have received
    with the sentence actually received. The witness's evidence was crucial to the
    prosecution. The reviewing court rejected the State's argument that the jury would have
    learned the defendant's own potential sentence if convicted. Defendant's right to a
    meaningful cross-examination outweighed the State's interest in shielding evidence of the
    defendant's prospective sentence from the jury.
    In State v. Bennett, 
    550 So. 2d 201
    (La. Ct. App. 1989), the reviewing court
    reversed the defendant's conviction for solicitation of murder. The court held that the
    trial court erred in refusing the defendant the opportunity to ask the collaborating witness
    as to the maximum sentence he could have received if he failed to cooperate with the
    State. The court suggested that impermissibly curtailing cross-examination could never
    be harmless.
    9
    No. 31611-4-III
    State v. Samalia
    In Meyer v. State, 
    498 So. 2d 554
    (Fla. Dist. Ct. App. 1986), the reviewing court
    upheld the trial court's barring of questioning of the State's witness as to the maximum
    and minimum sentence he faced with his deal with the State. The court considered
    sufficient the jury's hearing that the witness received a reduced sentence in exchange for
    testifying. Meyer v. State may conflict with Jackson v. State.
    In State v. Morales, 
    120 Ariz. 517
    , 
    587 P.2d 236
    (1978), the reviewing court
    reversed the defendant's conviction for first degree murder. The court held that the trial
    court committed reversible error in precluding defense counsel from attacking the
    credibility of a juvenile witness who had participated in the torture of the victim by
    showing the punishment the juvenile might have received had he not agreed to testify
    against the defendant. The trial court precluded the testimony on the ground that the jury
    would hear the possible sentence faced by the defendant. The reviewing court held that
    this factor did not outweigh the defendant's right to examine the witness as to the penalty
    he would have faced if he had not agreed to testify.
    In State v. Larrabee, 3 
    77 A.2d 463
    (Me. 1977), the reviewing court noted that
    defense counsel should be free to question the State's witness as to the existence of an
    agreement and the extent of the benefits the witness will likely obtain by cooperative
    testimony. Nevertheless, the court refused to reverse the trial court because the State
    charged the defendant with the same crime that the witness avoided with the agreement.
    The rule that the jury should not know the sentence that the defendant faced prevailed.
    The court also rejected the salutary effect of a limiting instruction.
    10
    No. 31611-4-III
    State v. Samalia
    In State v. Alston, 
    17 N.C. App. 712
    , 
    195 S.E.2d 314
    (1973), the trial judge barred
    questioning of the State's witness as to the maximum sentence the witness confronted but
    for his cooperation with the State. The reviewing court held the restriction to violate
    defendant's right to show bias of a witness and ordered a new trial.
    11