State Of Washington, V. Thomas Oscar Cady ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84980-8-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
THOMAS OSCAR CADY,
Appellant.
FELDMAN, J. — Thomas Oscar Cady appeals his convictions for second
degree felony murder and second degree identity theft and argues we should
reverse and remand for a new trial due to the erroneous admission of
unauthenticated surveillance videos, 1 ineffective assistance of counsel, the
erroneous admission of irrelevant testimony regarding the victim’s family,
prosecutorial misconduct, and cumulative error. Cady also raises several issues
in a statement of additional grounds for review. We affirm.
I
On May 24, 2020, at approximately 4:20 p.m., Katelyn Burleigh witnessed
a violent altercation between two “black males” in the intersection of North 130th
1 Unless the context indicates otherwise, we use the phrase “surveillance videos” herein to refer to
and include the original videos as well as still images and short video clips produced from the
original videos.
No. 84980-8-I
Street and Aurora Avenue North in Seattle. According to Burleigh, the aggressor
was young, thin, and wearing a white coat, and the victim was older, heavier,
moving slower, and wearing red. The altercation lasted less than 30 seconds, after
which the aggressor ran towards a blue-gray sport utility vehicle (SUV) while
carrying a black handgun, got into the driver’s seat, and drove away. Burleigh
immediately called 911 to report the altercation to law enforcement.
Seattle Police Department (SPD) Officers Steve Kim and Caroline Oskam
arrived at the scene and spoke with Charles Johnson, a man in his early 60s who
matched Burleigh’s description of one of the men involved in the altercation.
Johnson was wearing a white puffy jacket, a red t-shirt, and blue jeans. After
speaking with Johnson, the officers believed he had been the victim of a robbery.
Later that same day, at approximately 6 p.m., Johnson was involved in
another, this time fatal, altercation outside of K-Smoke Mart near the intersection
of North 117th Street and Aurora Avenue North. Bryan Wunder was driving his
vehicle when he saw someone stabbing another person on the side of the road.
According to Wunder, the assailant was a shorter man who was “Mexican looking”
and blonde, and the victim was a “black, older, like 50 year old guy” who was “tall.”
Wunder observed the assailant carrying a black knife with a blade measuring about
three inches long. Wunder saw the victim fall backwards into the street, stand
back up, and then pull down his pants to reveal blood “shooting out” of his “femoral
area.” Wunder called 911 to report the incident to law enforcement and watched
the assailant flee towards a nearby Home Depot.
Several first responders arrived at the K-Smoke Mart minutes later to find
Johnson lying on the ground in a pool of blood. Despite their efforts to save
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Johnson’s life, he bled to death shortly after their arrival. An autopsy later
determined Johnson was killed by multiple stab wounds to his chest and right thigh
delivered by a sharp blade, likely a knife. The fatal blow was a cut to his femoral
artery in his right leg, which caused Johnson to lose a large amount of blood quickly
and die within minutes. Officers attempted to gather information from several
nearby witnesses who had observed the stabbing, but most of these witnesses
were unwilling to assist with the investigation.
As part of the investigation into Johnson’s death, SPD Detectives Donald
Witmer and Donna Stangeland went to nearby businesses to search for
surveillance footage that may have captured the attacks on Johnson. One of these
businesses was the K-Smoke Mart, which had a surveillance system that
detectives believed captured the second attack on Johnson. This footage (the K-
Smoke Video) depicts a person in a light gray hooded jacket, light colored pants,
and black shoes approach another person wearing a white coat, red shirt, and dark
pants outside of the K-Smoke Mart. After several minutes of conversation, the
person in the red shirt empties their pockets and is then attacked by the person in
the light gray jacket. The victim falls backwards onto the road while the attacker
repeatedly thrusts his right arm towards the victim. The victim then stands up,
looks down at his right leg, and collapses near the road. As the attacker walks
away, several bystanders come to aid the victim while he is lying on the ground.
The detectives also discovered surveillance footage at the Home Depot
near the K-Smoke Mart, where Wunder saw the assailant flee after stabbing
Johnson. This footage (the Home Depot Video) shows a person in a gray hooded
sweatshirt with a black logo on the chest, light colored jeans with blue patches,
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black shoes, a red baseball cap, and a face mask/respirator running through the
Home Depot parking lot on the afternoon of May 24, 2020.
The detectives then discovered surveillance footage from Elliott Bay Auto
Brokers that they believed captured the first attack on Johnson in the intersection
of North 130th Street and Aurora Avenue North. This footage (the Elliott Bay
Video) shows a person in a light colored hooded jacket, light colored pants, and
dark colored shoes emerge from a gray SUV stopped in traffic. The person then
runs toward another person walking on the sidewalk wearing a white coat and dark
pants. The attacker chases the victim around the middle of the intersection while
swinging his arms at the victim. The attacker then returns to the SUV and drives
away.
The detectives identified Cady as a suspect through their investigation.
After the first attack, Johnson told Kim and Oskam that he recognized his attacker
as a man who used to live in room 8 of the nearby Emerald Motel and had
previously stolen Johnson’s bicycle. Upon speaking to the motel’s managers, the
officers learned that this former resident of room 8 was Cady. Then, after
searching a database for pawn shop transactions, Witmer learned Cady had made
a transaction at Don’s Pawn Shop in Federal Way on the day before the stabbing.
He and Stangeland visited the pawn shop and obtained a pawn receipt confirming
Cady had visited the shop on May 23, 2020. The detectives also viewed
surveillance footage from the pawn shop showing Cady arriving in a blue-gray SUV
(which resembled the vehicle driven by Johnson’s assailant in the Elliott Bay
Video) and wearing a gray hooded sweatshirt with a black logo on the chest, light
colored jeans with blue patches, black shoes, a white baseball cap, and a face
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No. 84980-8-I
mask/respirator (which resembled the outfits worn by Johnson’s assailant in the
Elliott Bay and K-Smoke Videos and by the person in the Home Depot Video).
Stangeland then distributed a bulletin to law enforcement agencies advising
officers to detain Cady if located.
About a week after the stabbing, Washington State Trooper Logan Swift
stopped Cady for speeding while driving east on I-90 about 100 miles from Seattle.
Swift immediately recognized Cady from Stangeland’s bulletin. Cady provided
Swift with an identification card belonging to a different person. After detaining
Cady, Swift discovered a red-handled Craftsman folding knife in his pocket, and
officers later found a second small folding knife in the vehicle.
The State charged Cady with (1) first degree premeditated murder, (2)
second degree felony murder based on the predicate offense of second degree
assault, and (3) second degree identity theft. The jury found Cady guilty of (1) first
degree manslaughter, as a lesser included offense of first degree premediated
murder, (2) second degree felony murder, and (3) second degree identity theft.
The jury also found by special verdict that Cady was armed with a deadly weapon
during the commission of the crimes in counts 1 and 2. At sentencing, the court
vacated the manslaughter conviction on double jeopardy grounds and imposed a
high-end standard-range prison sentence of 445 months on the remaining counts,
which includes a 48-month enhancement for the use of a deadly weapon. Cady
appeals.
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II
A. Surveillance videos
Cady argues the trial erred by “admitting surveillance video from the K-
Smoke Mart and the Elliott Bay Auto Shop because the prosecution failed to
sufficiently authenticate those videos.” We disagree.
Under ER 901(a), a party may authenticate an exhibit through “evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” “The bar for authentication of evidence is not particularly high,” and the
proponent does not need to “rule out all possibilities inconsistent with authenticity.”
State v. Hillman, 24 Wn. App. 2d 185, 191, 519 P.3d 593 (2022) (quoting United
States v. Gagliardi, 506 F.3d 140, 151 (2nd Cir. 2007)). We review a trial court’s
rulings on authenticity for an abuse of discretion, which occurs when the decision
is manifestly unreasonable or exercised on untenable grounds or for untenable
reasons. State v. Payne, 117 Wn. App. 99, 110, 69 P.3d 889 (2003).
The standards for authenticating video recordings are the same as those
for photographs: the proponent must present witness testimony giving “some
indication as to when, where, and under what circumstances” the video was taken
and that the video “accurately portrays the subject illustrated.” State v. Sapp, 182
Wn. App. 910, 914, 332 P.3d 1058 (2014) (quoting State v. Newman, 4 Wn. App.
588, 593, 484 P.2d 473 (1971)). A proponent may authenticate a video of a crime
scene by calling a witness with personal knowledge of the scene the video depicts
who can verify that the video accurately portrays the scene. State v. Jackson, 113
Wn. App. 762, 766, 54 P.3d 739 (2002). The proponent can also authenticate a
video by calling the videographer or someone else with equivalent knowledge to
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describe the equipment that was used, explain where and how it was used, and
confirm that it generally produces accurate videos, that it produced the particular
video in question, and that the video has not been altered since it was developed.
Id.Here, the State authenticated the K-Smoke Video and Elliott Bay Video
through several witnesses. First, the State presented eyewitness testimony from
the 911 callers who observed the attacks on Johnson on May 24, 2020. As to the
K-Smoke Video, the State showed still images from the original video to Wunder,
who recognized the location and people depicted in the images and testified that
“it definitely was the two of them that I saw.” Wunder agreed that he has not “seen
anything at all like that . . . at that location” before or after the incident. Wunder
could also identify the truck he was driving in the photographs. The State also
elicited detailed testimony from Burleigh describing the events surrounding the first
attack on Johnson outside of Elliott Bay Auto Brokers, including the location, date,
and behavior of the two men engaged in the altercation. The time stamp in the
Elliott Bay Video indicates that this altercation occurred at 4:22 p.m., which was
just before Burleigh called 911 and Kim and Oskam were dispatched to the scene.
Moreover, the Elliott Bay Video appears to capture Burleigh’s vehicle driving away
from the scene like she described in her testimony. These eyewitness
recollections of the attacks on Johnson largely correspond with the events depicted
in the videos.
Second, Travis Smith, an SPD employee trained in video forensics,
described how he collected the videos from the stores’ surveillance systems.
Smith testified that he could interact and was familiar with the type of surveillance
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No. 84980-8-I
system used at K-Smoke Mart because it was a “machine that . . . I had worked
with before.” Smith also testified that the camera appeared to accurately record
the area where the stabbing occurred outside of K-Smoke Mart, that the date
stamp on the video is accurate, and that, although the time stamp on the video is
approximately 12 minutes fast, he was able to successfully locate the portion of
video depicting the second attack on Johnson on May 24, 2020 based on a time
frame provided by detectives. 2 Smith gave similar testimony about extracting the
video from Elliott Bay Auto Brokers’ surveillance system, which Smith likened to
K-Smoke Mart’s system. Smith also testified that the surveillance videos
introduced at trial are fair and accurate copies of the videos he obtained from K-
Smoke Mart and Elliott Bay Auto Brokers and that the events depicted in the videos
have not been altered or changed.
Third, Mike Mellis, an SPD forensic video technician, described the process
by which he produced still images and shorter video clips from the original
surveillance videos that focus on the activity of interest depicted in the videos.
Mellis created these images and video clips by upscaling (i.e., zooming in on) the
activity of interest and cropping (i.e., removing) contents on the periphery of the
images. Some of Mellis’ video clips also play the original videos at a slower frame
rate. But Mellis clarified that his production work does not alter or change “[t]he
content and the motion of people and objects in the video.” He also testified that
2 Cady argues that Smith’s testimony did not authenticate the videos because he “relied on a chain
of hearsay information in terms of attempting to identify what time frame to search for in the video
system.” This argument is unconvincing because a court is not bound by the rules of evidence
when determining authenticity and, thus, may consider hearsay in making this decision. State v.
Williams, 136 Wn. App. 486, 500, 150 P.3d 111 (2007) (citing ER 104(a); ER 1101(c)(1)).
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No. 84980-8-I
the images and video clips introduced into evidence are fair and accurate copies
of the ones he produced from the original surveillance videos.
Fourth, Witmer described how he discovered during his investigation that
K-Smoke Mart and Elliott Bay Auto Brokers had surveillance systems that captured
the attacks on Johnson. He testified that he oversaw Smith’s extraction of the
surveillance videos from these stores shortly after the stabbing. Witmer further
testified that the discs introduced into evidence by the State contain fair and
accurate copies of the videos Smith extracted from K-Smoke Mart and Elliott Bay
Auto Brokers. Lastly, Witmer testified that the images and video clips produced by
Mellis that were included on the discs fairly and accurately depict the contents of
the original videos (other than being upscaled, cropped, or played in slow-motion).
On this record, the State presented evidence sufficient to support a finding
that the surveillance videos are what the State claims. As recounted above, the
State elicited testimony from eyewitnesses who observed the events depicted in
the videos and from witnesses with knowledge of how the stores’ surveillance
systems accurately produced the videos in question. See State v. Tatum, 58
Wn.2d 73, 75, 360 P.2d 754 (1961); Jackson, 113 Wn. App. at 766. Because this
testimony sufficiently indicated when, where, and under what circumstances the
surveillance videos were taken and that they accurately portray the subjects
illustrated, the trial court did not abuse its discretion in determining the State met
its minimal burden to authenticate the videos.
Notwithstanding the foregoing analysis, Cady argues the State failed to
authenticate the surveillance videos because none of its witnesses both (a)
personally witnessed the events in question and (b) knew how the videos were
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No. 84980-8-I
created and extracted. But Washington courts allow the proponent to authenticate
a video through the combined testimony of multiple witnesses who each possess
some knowledge of the events depicted on the video or how the video was created.
See Tatum, 58 Wn.2d at 75 (photograph of forged check authenticated through
testimony of store employee who processed the check and testimony of camera
manufacturer employee about how the camera accurately photographed the
check). Moreover, a witness can authenticate a video even if they were not the
videographer and were not present at its recording. Sapp, 182 Wn. App. at 914-
15. The combined testimony of Wunder, Burleigh, Smith, Mellis, and Witmer
provided ample evidence of the authenticity of the K-Smoke and Elliott Bay Videos.
Cady did not present evidence at trial seriously undermining the authenticity
of the surveillance videos, and State v. Wisner, No. 46597-3-II (Wash. Ct. App.
Mar. 1, 2016) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%
2046597-3-II%20Unpublished%20Opinion.pdf, which he cites on appeal, does not
support his argument. In Wisner, the defendant was charged with identity theft
after he allegedly filled out a deposit slip at a bank to withdraw funds from another
person’s account. Id. at 1. The State sought to introduce surveillance video and
still photos purportedly depicting the defendant interacting with the bank teller. Id.
at 2-3. But at trial, the teller could not identify the person in the video as the same
man who represented himself as the account owner. Id. The teller revealed that
her knowledge of what the video depicted was based entirely on information
provided to her by the State. Id. The teller also was not responsible for maintaining
the security department’s videos and had “no clue” whether the date and time
shown on the video were correct. Id. On appeal, the court held that the teller’s
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No. 84980-8-I
“inability to recall the transaction at all or testify as to whether the video was
actually the . . . transaction is insufficient to authenticate the video.” Id. at 8-9.
Wisner is readily distinguishable. Unlike the teller in Wisner, who had no
recollection of the transaction shown in the video, Wunder testified at Cady’s trial
that the images taken from the K-Smoke Video accurately depict the attack on
Johnson that he witnessed. Burleigh’s testimony about the first attack on Johnson
is also largely consistent with what the Elliott Bay Video depicts. And whereas the
State in Wisner “provided no other witness testimony as to the process of the
surveillance camera” (id. at 8), in Cady’s trial the State presented multiple
witnesses to explain how the surveillance videos were extracted from the stores’
security systems and accurately reproduced for trial. Lastly, the record does not
indicate that any testimony from an authenticating witness at Cady’s trial was
based “entirely on information provided to [them] by the State.” Id. at 8-9. Thus,
Wisner is inapposite
At bottom, Cady’s authentication argument asks us to reverse his
convictions because the surveillance videos do not conclusively prove that he is
the person depicted in the videos. But this is not the relevant inquiry in the
authentication analysis. Once the State presented some indication as to when,
where, and under what circumstances the videos were taken and that they
accurately portray the subject illustrated, “the question of the identity of the person
in the videotape[s] was a question of fact” that was “left to the jury to decide.” See
State v. Sexsmith, 138 Wn. App. 497, 508-09, 157 P.3d 901 (2007). The jury had
the opportunity to view for themselves both the K-Smoke Video and the Elliott Bay
Video and determine, based on the 911 callers’ descriptions of Johnson’s attacker
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No. 84980-8-I
and the other evidence admitted at trial, whether Cady was the assailant in those
videos. The trial court did not err in concluding that the surveillance videos were
properly authenticated and allowing the jury to determine whether the videos show
that Cady committed the crimes at issue.
B. Ineffective assistance of counsel
Cady argues that his trial counsel was ineffective for not interviewing two
eyewitnesses to Johnson’s stabbing, David Parra Castro and Gustavo Alvarado,
and not compelling their attendance at trial. We disagree.
A defendant alleging ineffective assistance of counsel must satisfy the two-
prong Strickland test by showing that (a) “counsel’s performance was deficient”
and (b) “the defendant was prejudiced by the deficient performance.” In re Pers.
Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012) (citing Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A
defendant satisfies the deficiency prong by establishing that “counsel’s
performance fell below an objective standard of reasonableness in light of all the
circumstances.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 538, 397 P.3d 90(2017). To overcome the strong presumption that counsel’s performance was
reasonable, the defendant must show that no legitimate trial tactic can explain
counsel’s performance. Id. at 539. On direct appeal from a conviction, we
determine counsel’s competency “based on the record established in the
proceedings below.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251(1995).
We generally presume that a lawyer’s decision not to call a particular
witness is a legitimate trial tactic. In re Pers. Restraint of Davis, 152 Wn.2d 647,
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No. 84980-8-I
742, 101 P.3d 1 (2004). This presumption can be overcome by showing that
counsel “failed to conduct appropriate investigations to determine what defenses
were available, adequately prepare for trial, or subpoena necessary witnesses.”
Id. To prove deficiency under a “failure to investigate” theory, the defendant must
show “a reasonable likelihood that the investigation would have produced useful
information not already known to defendant’s trial counsel.” Id. at 739. Counsel’s
duty to investigate “does not necessarily require that every conceivable witness be
interviewed.” Id. (quoting Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001)).
Moreover, the defendant must show that the allegedly helpful witnesses were
available and specify the content of the testimony they would have provided. Id.
at 740. We can defer to a trial lawyer’s decision not to conduct a particular
interview or call a particular witness so long as the lawyer “investigated the case
and made an informed and reasonable decision.” State v. Jones, 183 Wn.2d 327,
340, 352 P.3d 776 (2015).
Here, Cady fails to meet his burden of showing, based on the record
established in the proceedings below, that his counsel performed deficiently by not
interviewing Castro and Alvarado and not compelling their testimony at trial. As to
Castro, the record does not support Cady’s claim that his counsel knew of Castro’s
existence or that he was available to be interviewed or called as a witness at trial.
While Cady’s appellate attorneys allege that a police report disclosed during
discovery identifies Castro as an eyewitness to the stabbing, the record on appeal
contains no such document. The only evidence in the record pertaining to Castro
comes from Cady’s affidavit signed seven months after trial (which the trial court
did not find credible) in which he claims for the first time that Castro “was a direct
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No. 84980-8-I
eye witness to this incident” and that Cady knew Castro from occasional contacts
in the neighborhood. But Cady does not specify the content of the testimony
Castro would have provided had he been called as a witness. Moreover, Castro’s
testimony could have further incriminated Cady by identifying him as the attacker.
On this record, Cady fails to show that his attorney’s decision not to interview or
call Castro as a witness was uninformed and unreasonable.
Cady also fails to make this showing with respect to Alvarado. The record
shows that Alvarado gave two interviews to police before trial detailing his
eyewitness account of the stabbing. In the first interview, Alvarado said that
Johnson’s attacker matched the description of a man he had previously seen
earlier that morning on the bus. Alvarado told police that the man on the bus
showed Alvarado a picture of Johnson, asked Alvarado if he knew Johnson, and
said, “If I see him, he’s going to have problems.” Alvarado described the man on
the bus as a White, blue-eyed man between 26 and 28 years old who was shorter
than 5’11’’ in height and had long brown hair. Alvarado said he had never
previously met the man on the bus, but he also stated he could not see the face of
the man on the bus or the face of Johnson’s attacker because they were both
wearing face masks.
During his second interview, Alvarado gave a similar description of the man
on the bus as weighing approximately 160 pounds and dressed in “all white,” but
this time Alvarado said the man was between 30 to 40 years old and approached
Alvarado at the bus stop instead of on the bus. When police showed Alvarado a
still image of the attacker taken from the K-Smoke Mart Video, Alvarado said it was
the same man who approached him at the bus stop. After giving these interviews,
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No. 84980-8-I
Alvarado stopped communicating with law enforcement and could not be located
for trial. After the trial, Cady’s new attorneys hired an investigator to locate
Alvarado (who was unhoused at the time of his interviews with police), but the
investigator was also unsuccessful in contacting Alvarado.
As with Castro, Cady fails to show that Alvarado was available for trial, given
that both the State and Cady’s new attorneys were unable to contact him. Even if
Cady’s counsel could have located Alvarado, it does not appear that interviewing
him would have necessarily uncovered new information helpful to Cady. While
Cady claims that Alvarado would have recognized him from previous encounters,
Alvarado also told police that he could not see the face of Johnson’s attacker or
the face of the man at the bus stop. Moreover, Alvarado’s description of the man
at the bus stop resembles Cady, who is also a White man with blue eyes weighing
approximately 160 pounds. Indeed, Cady’s affidavit states he “ran into” Alvarado
“at the bus stop[] in the weeks prior to the stabbing.” On this record, Cady’s trial
counsel was not deficient in declining to interview Castro or Alvarado or call them
as witnesses.
But even if Cady’s trial counsel was deficient in this regard, Cady has failed
to show prejudice. To prevail under the second Strickland prong, Cady must
establish that “in the absence of counsel’s deficiencies, there is a reasonable
probability that the result of the proceeding would have been different.” Lui, 188
Wn.2d at 538. As stated above, had counsel been able to locate Castro and
Alvarado and call them as witnesses, both of them could have further incriminated
Cady by identifying him as Johnson’s attacker. Because Cady has not shown a
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No. 84980-8-I
reasonable probability that Castro’s or Alvarado’s testimony would have produced
a different result at trial, Cady’s ineffective assistance of counsel argument fails.
C. Testimony regarding the victim’s family
At trial, the State called Johnson’s daughter, Ebony Nealy, as a witness to
prove that Johnson was the victim of the charged crimes. The State presented
Nealy with Johnson’s driver’s license, and Nealy identified the person in the photo
on the license as her father. Nealy further testified about her relationship with
Johnson and stated that she stopped communicating with him four or five years
before trial. Cady’s counsel objected to “the relevance of this line of questioning,”
and the trial court overruled the objection. Cady argues this testimony was
irrelevant and prejudiced him by “enflame[ing] the jurors’ emotion and compassion”
against Cady. We disagree.
Evidence is admissible only if it is relevant, meaning it has “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.” ER
401, 402. The threshold for relevancy is “very low,” and even “minimally relevant
evidence is admissible.” State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189(2002). We review a trial court’s evaluation of relevance “with a great deal of
deference” under a manifest abuse of discretion standard of review. State v.
Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995). Even if the trial court
erroneously admitted irrelevant evidence, such error is harmless and not reversible
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No. 84980-8-I
if “within reasonable probability, it did not materially affect the verdict.” State v.
Hawkins, 157 Wn. App. 739, 752, 238 P.3d 1226 (2010).
Here, Nealy’s testimony regarding her relationship with Johnson and her
family was relevant to satisfy an element of the crimes charged in counts 1 and 2,
namely the identity of the victim. To convict Cady of first degree murder as charged
in count 1 and of second degree murder as charged in count 2, the State had to
prove that Cady “cause[d] the death of Charles Johnson.” Nealy’s identification of
Johnson’s driver’s license and description of their relationship was relevant to
establish how Nealy knew the man depicted in the driver’s license photograph
(who the State would later argue was the same man Cady stabbed outside of the
K-Smoke Mart) was her father. Further, Nealy’s testimony about her relationship
with Johnson was relevant to explain why she stopped communicating with him
and how she still knew what he looked like. For these reasons, the trial court did
not abuse its discretion in overruling Cady’s objection.
But even if this testimony was irrelevant, it was harmless. Nealy’s brief
testimony about her relationship with Johnson was of minor significance to the
evidence of Cady’s guilt. Moreover, the jury instructions reminded the jury, “You
must not let your emotions overcome your rational thought process. You must
reach your decision based on the facts proved to you and on the law given to you,
not on sympathy, prejudice, or personal preference.” We presume the jury
followed this instruction and did not convict Cady based on an emotional response
to Nealy’s testimony. See State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125(2007). Thus, Cady’s relevance argument fails.
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D. Prosecutorial misconduct
When Nealy testified regarding her relationship with her father, she also
began to testify about her own daughter. When that occurred, Cady’s counsel
objected to this line of questioning, stating “I don’t believe it’s relevant.” The
prosecutor responded, “I believe that it’s relevant to Mr. Johnson’s family.” Cady’s
counsel did not object to or move to strike the prosecutor’s response.
Nonetheless, Cady now argues that the prosecutor committed misconduct by
calling Nealy as the first witness and implying, through the foregoing response to
defense counsel’s objection, that he represented Johnson’s family. We disagree.
To prevail on a prosecutorial misconduct claim, the defendant must show
the prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174
Wn.2d 741, 756, 278 P.3d 653 (2012). Where, as here, the defendant did not
object on prosecutorial misconduct grounds to the alleged misconduct, the
defendant must show “the misconduct was so flagrant and ill-intentioned that (1)
no curative instruction would have obviated any prejudicial effect on the jury and
(2) the resulting prejudice had a substantial likelihood of affecting the jury verdict.”
State v. Mireles, 16 Wn. App. 2d 641, 656, 482 P.3d 942 (2021). A prosecutor
acts improperly by “seeking a conviction based on emotion rather than reason.”
State v. Craven, 15 Wn. App. 2d 380, 385, 475 P.3d 1038 (2020). Moreover, a
prosecutor acts improperly by stating that they represent the victim’s family. State
v. Pierce, 169 Wn. App. 533, 558, 280 P.3d 1158 (2012).
Here, the prosecutor’s argument that Nealy’s testimony was “relevant to Mr.
Johnson’s family” was not “so flagrant and ill-intentioned that (1) no curative
instruction would have obviated any prejudicial effect on the jury and (2) the
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resulting prejudice had a substantial likelihood of affecting the jury verdict.”
Mireles, 16 Wn. App. 2d at 656. Cady contends the remark implied “that the
prosecution was acting on behalf of the victim’s family.” But in the context of
Nealy’s testimony and the exchange between the prosecutor and defense counsel
about the merits of defense counsel’s objection, it appears just as likely that the
prosecutor intended his statement to mean that Nealy’s testimony was relevant to
establish the members of Mr. Johnson’s family, not to imply that Johnson’s family
deserved to hear the answer to the prosecutor’s question or that the prosecutor
somehow represented the family. And while Cady argues that “the prosecution’s
decision to call Nealy as the first witness was to place a family member of
Johnson’s in front of the jury to evoke an emotional response,” Cady cites no
authority suggesting that the order in which the prosecution calls its witnesses may
give rise to a prosecutorial misconduct claim. See State v. Loos, 14 Wn. App. 2d
748, 758, 473 P.3d 1229 (2020) (“When a party provides no citation to support an
argument, this court will assume that counsel, after diligent search, has found
none.”).
Nor has Cady shown, as he must, “that (1) no curative instruction would
have obviated any prejudicial effect on the jury and (2) the resulting prejudice had
a substantial likelihood of affecting the jury verdict.” Mireles, 16 Wn. App. 2d at
656. To the contrary, any prejudicial effect could easily have been obviated by
specifically instructing the jury that the prosecutor did not represent Johnson’s
family. See Pierce, 169 Wn. App. at 558 (statement that prosecutor represented
the victims’ families could have been cured by an objection from defendant). The
trial court also instructed the jury not to decide the case based on sympathy or
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No. 84980-8-I
emotion and that “the lawyers’ statements are not evidence.” This, too, obviated
any conceivable prejudice. See Craven, 15 Wn. App. 2d at 390-91 (prosecutor’s
appeal to jurors’ emotions was cured by court’s instructions to not decide the case
on sympathy, prejudice, or personal preference). Thus, we reject Cady’s
prosecutorial misconduct argument.
E. Cumulative error
Cady argues that reversal is warranted under the cumulative error doctrine,
which applies when several errors occurred below that, while individually harmless,
combined together to deprive a defendant of a fair trial. State v. Hodges, 118 Wn.
App. 668, 673-74, 77 P.3d 375 (2003). Because Cady has identified no trial errors,
we decline to reverse under the cumulative error doctrine.
F. Statement of additional grounds for review
Cady has filed a statement of additional grounds for review (SAG). The
purpose of a SAG is “to identify and discuss those matters related to the decision
under review that the defendant believes have not been adequately addressed by
the brief filed by the defendant’s counsel.” RAP 10.10(a). Under RAP 10.10(c),
we will not consider arguments raised in a SAG that do not inform us of “the nature
and occurrence of alleged errors.” Nor are we obligated to search the record in
support of claims raised in a SAG, and we may only consider documents that are
contained in the record on review. 3 Id. Cady’s SAG is 52 pages in length and
3 On April 19, 2024, after filing his SAG, Cady filed a “Motion to Add Documentation Already in the
Record.” We deny the motion. To the extent that the attached documentation is already in the
record, as Cady represents, there is no reason to grant the requested relief. And to the extent that
the documentation is not already in the record, the motion fails on the merits. See RAP 10.10(c)
(“Only documents that are contained in the record on review should be attached or referred to in
the” SAG.).
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No. 84980-8-I
contains 11 argument headings, many of which include several intertwined
arguments that are not clearly delineated. Having carefully reviewed each alleged
error in the context of the case, the record, and the arguments as a whole, we
reject the arguments raised in Cady’s SAG for the reasons discussed below.
1. Cady’s prior robbery conviction
Cady argues the trial court erroneously allowed the State to impeach him
(had he testified) with his prior robbery conviction from 2000 because such
evidence should have been excluded under ER 404(b). Before trial, the State filed
a motion in limine to admit Cady’s prior conviction pursuant to ER 609, which
allows a party to introduce for impeachment purposes evidence that the defendant
had been convicted of a crime involving dishonesty. ER 609(a). Cady objected to
the admissibility of the prior conviction because “under [ER] 404(b) . . . I believe
that the probative value is substantially outweighed by its prejudicial effect.” The
trial court rejected this argument and granted the State’s motion.
Cady’s ER 404(b) argument is misplaced because the State did not seek to
use Cady’s prior conviction as substantive evidence but rather for impeachment
purposes under ER 609. See State v. Jackson, 102 Wn.2d 689, 694, 698 P.2d 76(1984). Also, a trial court is not required under ER 609 to balance the probative
value of a prior conviction against its prejudicial effect when the conviction involves
dishonesty and is not more than 10 years old. State v. Russell, 104 Wn. App. 422,
433-34, 16 P.3d 664 (2001). Robbery is a crime of dishonesty, State v. Rivers,
129 Wn.2d 697, 705, 921 P.2d 495 (1996), and the record shows Cady was
released from the confinement imposed for his robbery conviction fewer than 10
years before his trial began.
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No. 84980-8-I
2. Double jeopardy
Cady argues his convictions are barred by double jeopardy due to
misconduct by the State in delaying his trial for several months. The record
indicates that after Cady’s jury trial commenced in September 2021 but before jury
selection was completed, the trial court recessed and/or stayed the trial in October
2022 after the prosecutor suffered a medical emergency requiring him to take an
extended leave of absence. The trial then resumed in February 2022 with a new
prosecutor, and the parties restarted the jury selection process. In support of his
double jeopardy argument, Cady cites two cases discussing circumstances in
which double jeopardy prevents a retrial after the government’s misconduct forces
a mistrial. See State v. Lewis, 78 Wn. App. 739, 898 P.2d 874 (1995); Oregon v.
Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982). Because that
did not occur here, Cady’s double jeopardy argument fails.
3. Admission of knives
Cady argues the trial court erred in denying his motion to suppress the two
knives found in his car. Relatedly, Cady argues his counsel was ineffective for not
filing a motion to suppress the knives before trial.
At trial, the prosecutor indicated he would elicit testimony regarding forensic
testing of the two knives found in Cady’s car and photographs of the knives. Cady
moved to exclude any evidence pertaining to these knives because they had “not
been forensically connected to this case” and would confuse the jury and unfairly
prejudice him. The prosecutor responded that the knives were relevant because
one of the knives (the Craftsman folding blade) partially matched Wunder’s
description of the knife used to stab Johnson and could have been cleaned before
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No. 84980-8-I
Cady was apprehended. The prosecutor also argued that Cady should have
raised his arguments before trial, to which Cady’s counsel responded, “if [the
prosecutor] wants to make a record that I’m ineffective, and that the Court doesn’t
want to have this argument, then I will say that I’m ineffective.”
The trial court denied Cady’s motion to suppress the Craftsman folding
blade but granted his motion to suppress the other knife. The next day, Cady’s
counsel mentioned that the knives could be inadmissible under ER 404(b), but
clarified, “the Court’s already made its ruling. I don’t think I can relitigate that,
especially on the basis of 404(b).” The trial court then granted defense counsel’s
request for the State to introduce the physical knives into evidence for
completeness so counsel could contrast them with Wunder’s description of the
knife used to kill Johnson.
Cady’s arguments on this topic fail for several reasons. Preliminarily, he
has not preserved his ER 404(b) argument on appeal because his trial counsel did
not timely raise an objection on that specific basis below. See RAP 2.5(a); State
v. Korum, 157 Wn.2d 614, 648, 141 P.3d 13 (2006). To the extent Cady raises an
ER 403 argument, which arguably was raised below, the trial court did not abuse
its discretion in denying his motions to suppress this evidence on that evidentiary
basis. See Colley v. Peacehealth, 177 Wn. App. 717, 723, 312 P.3d 989 (2013)
(denial of motion in limine is reviewed for abuse of discretion). The Craftsman
folding blade had probative value because it somewhat matched Wunder’s
description of the size of the knife used to kill Johnson, and Cady was able to
undermine the evidentiary weight of these knives by illustrating how they differed
from Wunder’s description of the murder weapon. Similarly, Cady’s counsel was
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No. 84980-8-I
not ineffective for failing to file a pretrial motion to suppress the knives because
counsel still had time to orally move to suppress the knives before they were
admitted, and this motion was granted in part.
4. Dismissal of jury panel 3
Cady argues the trial court violated GR 37 by summarily dismissing jury
panel 3 during jury selection without considering the race or ethnicity of the
dismissed jurors. The record shows that during voir dire, some jurors asked
whether Cady could receive the death penalty if convicted. After the prosecutor
told the jurors they would not know if “the death penalty is going to apply,” several
jurors expressed discomfort at the idea of presiding over a death penalty case.
The trial court later dismissed the entire panel “in an abundance of caution”
because they were told information contrary to State v. Pierce, which held that
jurors cannot be prohibited from knowing “whether they are being asked to sit on
a death penalty case.” 195 Wn.2d 230, 244, 455 P.3d 647 (2020). Cady objected
under GR 37 because “[t]here are five jurors in that panel that you had struck that
identify as a person of color,” and the trial court overruled the objection. Cady’s
argument fails because the authority he cites pertains to a party’s dismissal of a
juror using a preemptory challenge. See GR 37; Pierce, 195 Wn.2d at 242-44.
Here the trial court dismissed panel 3 for cause for a reason other than jurors’ race
or ethnicity.
5. Impeaching Stangeland using the Brady List
Cady argues the trial court abused its discretion by prohibiting him from
impeaching Stangeland under ER 608 with evidence that she was on the Brady
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No. 84980-8-I
list. 4 ER 608(b) provides that a party may, in the discretion of the court, inquire
into a witness’ specific instances of conduct concerning the witness’ character for
untruthfulness if probative of untruthfulness. Here, the record indicates that over
a decade before trial, Stangeland had allegedly observed documents and listened
to jail calls that were protected by attorney-client privilege. The trial court excluded
this evidence because “there hasn’t been sufficient information that would support
the record that any of the previous allegations of misconduct are relevant or
material” to Cady’s case. Cady has not shown that this ruling was an abuse of the
trial court’s discretion. See State v. O’Connor, 155 Wn.2d 335, 349, 119 P.3d 806(2005) (in exercising its discretion in ruling on an ER 608 objection, the court “may
consider whether the instance of misconduct is relevant to the witness’s veracity
on the stand and whether it is germane or relevant to the issues presented at trial”).
6. Impeaching Wunder and Johnson using prior convictions
Cady argues the trial court erred by preventing him from impeaching
Wunder’s and Johnson’s credibility under ER 609 using their prior convictions.
Before trial, the court granted the State’s motion in limine to exclude any alleged
prior misconduct by the victim and witnesses under ER 608, ER 404, and ER 405.
Defense counsel “agree[d] that we’re not going to elicit criminal convictions,” but
indicated he may impeach Johnson’s credibility by referencing a “previous contact”
between him and one of the officers involved in the investigation. The trial court
4 The Brady list refers to an internal document maintained by the prosecutor’s office that identifies
law enforcement officers with potential impeachment evidence that must be disclosed to the
defense. See State v. Stotts, 26 Wn. App. 2d 154, 158 n.1, 527 P.3d 842 (2023) (citing Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)).
25
No. 84980-8-I
granted the State’s motion but told the parties to ask for a sidebar if they “feel as
though a door has been opened or some threshold has been crossed.”
Cady fails to show how the trial court erred because he does not cite any
instance in the record where he attempted to impeach Wunder or Johnson with
their prior convictions or argued to the trial court, either before trial or during a
sidebar, why he should be permitted to do so. Moreover, Cady’s counsel was not
ineffective for attempting to impeach Wunder in this manner because this decision
could have been strategic. Cady’s theory of the case relied heavily on Wunder’s
descriptions of the attacker and the murder weapon, and impeaching his credibility
could have damaged this theory. As to Johnson, Cady provides no authority
stating that a defendant may impeach the deceased victim’s credibility by
questioning other witnesses about their knowledge of the victim’s prior contacts
with law enforcement. And Cady fails to show how impeaching Wunder or
Johnson with their prior convictions would have changed the outcome of trial.
7. COVID-19 social distancing procedures during trial
Cady raises two arguments relating to the trial court’s use of social
distancing during trial to mitigate participants’ exposure to COVID-19. First, Cady
argues the trial court erred by conducting jury selection over Zoom instead of in-
person. 5 We reject this argument because the trial court reasonably decided to
conduct jury selection remotely due to the “very serious health concerns that are
created by this pandemic,” and the court conducted the remainder of the trial in-
person. This decision comported with the orders issued by the Washington
5 Zoom is a cloud-based video conferencing software platform.
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No. 84980-8-I
Supreme Court in effect during Cady’s trial permitting trial courts to use remote
proceedings when appropriate to further public health and safety. See State v.
Griffin, ___ Wn. App. 2d. ___, 544 P.3d 524, 528-31 (2024) (no abuse of discretion
in conducting resentencing hearing over Zoom pursuant to Supreme Court’s
emergency orders in effect during the COVID-19 pandemic).
Second, Cady argues the trial court should have declared a mistrial, and his
defense counsel was ineffective for not making such a motion, after the trial court’s
socially-distanced seating arrangement allowed juror 4 to see a police report that
was not admitted into evidence which displayed Cady’s name and photograph.
During questioning by the trial court outside the presence of the other jurors, juror
4 said he looked at the report but did not see anything other than the face of a
“Caucasian” man that he could not recognize. Juror 4 also stated that he did not
communicate this information to any other jurors. The trial court granted Cady’s
motion to excuse juror 4. Cady’s argument that the trial court should have sua
sponte declared a mistrial fails because he provides no authority suggesting that
the trial court should have done so in this situation. Moreover, Cady has not shown
prejudice because juror 4 was dismissed and did not discuss the police report with
any other jurors, and Cady has not demonstrated how the jurors’ seating
arrangement prejudiced him in any other way.
8. Offender score
Cady argues the trial court erroneously calculated his offender score by
counting four prior convictions separately instead of as a single offense because
they encompassed the “same criminal conduct.” Cady also argues his trial counsel
was ineffective for not making this argument at sentencing. In calculating the
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No. 84980-8-I
offender score, the sentencing court counts all prior convictions separately, except
for “[p]rior offenses which were found, under RCW 9.94A.589(1)(a), to encompass
the same criminal conduct,” which “shall be counted as one offense.” RCW
9.94A.525(5)(i). “Same criminal conduct” means “two or more crimes that require
the same criminal intent, are committed at the same time and place, and involve
the same victim.” RCW 9.94A.589(1)(a).
The “criminal history” portion of Cady’s judgment and sentence in this case
indicates that on June 23, 2000, he was sentenced for the crimes of “possession
of firearm,” “assault 2,” “robbery 1 w/firearm,” and “escape 2.” At Cady’s
sentencing hearing, the prosecutor said he calculated an offender score of 10 on
count 2 and a score of 8 on count 3. The State then referred to its presentencing
report (which is not included in the record on appeal) and stated that the report
“provide[s] certified copies of court records from [Cady’s] prior convictions in
support of the state’s calculation of Mr. Cady’s offender score.” Defense counsel
responded, “I don’t have argument regarding . . . what the state provide[d] today
[to] the Court or the Court’s calculation.” And defense counsel’s presentencing
report (which is included in the record on appeal) does not identify Cady’s prior
convictions or argue that they encompassed the same criminal conduct. After
reading both parties’ presentencing reports, the sentencing court stated, “I do find
that the state has proven Mr. Cady’s criminal history by a preponderance of the
evidence and sufficient evidence to establish that Mr. Cady’s offender score for
count 2 is one of 10 and for count 3 is one of 8.”
On this record, Cady’s first argument fails on waiver grounds due to his
counsel’s failure to argue that his prior convictions encompassed the “same
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No. 84980-8-I
criminal conduct.” By declining to present any argument regarding Cady’s prior
convictions in response to the State’s calculation of Cady’s offender score, which
counted the four prior convictions at issue separately, Cady’s trial counsel
represented to the trial court that the court did not need to conduct a same criminal
conduct analysis with respect to these convictions. See State v. Bell, 26 Wn. App.
2d 821, 842-43, 529 P.3d 448 (2023) (finding waiver of “same criminal conduct”
argument where defense counsel agreed with State’s offender score calculation).
Cady’s second argument likewise fails because, in the absence of further
information regarding the underlying facts and sentencing determinations with
respect to these four prior convictions, Cady cannot show based on the record
established in the proceedings below that his attorney was ineffective in failing to
argue that these prior convictions encompassed the same criminal conduct.
9. Additional arguments
Cady’s SAG also alleges that several other errors were committed below,
including errors relating to the trial court’s denials of his motion for a new trial and
his motion to reconsider the denial of his motion for a new trial, his inability to
attend the omnibus hearing, his trial counsel’s failure to move for a change of judge
based on alleged bias, the trial court’s grant of the State’s motion to amend the
charging information, statements made by Johnson to Oskam and Kim that were
admitted in violation of the Confrontation Clause (U.S. Const. Amend. 6), an
additional instance of prosecutorial misconduct where the prosecutor allegedly
intentionally elicited hearsay testimony from Oskam, and the trial court’s denial of
various post-sentencing motions regarding “violation of court procedure & rules”
and restitution to the victim’s family. Many of these additional arguments overlap
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No. 84980-8-I
with other SAG issues and fail for the reasons set forth above. The remaining
arguments do not sufficiently inform us of the nature and occurrence of the alleged
errors because they are vague, conclusory, and/or unsupported by citation to the
record. We decline to consider such arguments. See RAP 10.10(c) (“[T]he
appellate court will not consider a defendant’s statement of additional grounds for
review if it does not inform the court of the nature and occurrence of alleged
errors.”).
Affirmed.
WE CONCUR:
30