State of Washington v. Daniel Blizzard

FILED
SEPTEMBER 1, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 32866-0-111
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
DANIEL BLIZZARD, )
)
Appellant. )
PENNELL, J. - Due process requires a fair trial in a fair tribunal. Daniel Blizzard
argues he was denied this basic protection after his trial judge received a letter from the
county prosecutor containing inflammatory accusations of judicial bias. According to Mr.
Blizzard, the letter's contents were so explosive they rendered the trial judge incapable of
fairly presiding over the proceedings.
We are unpersuaded. The judiciary is not vulnerable to manipulation by politically
charged criticism. In extreme cases, hurtful, personal attacks against a judge may make
No. 32866-0-111
State v. Blizzard
recusal unavoidable. This is not such a case. We reject Mr. Blizzard's broad attack
against his conviction, along with his other claims of more discrete error. The judgment
and sentence is affirmed.
BACKGROUND
On May 25, 2013, real estate broker Vern Holbrook was found lying in a pool of
blood in a vacant house he reportedly showed to a couple earlier that day. He had been
severely beaten and his throat was cut. Mr. Holbrook later died as a result of the injuries
sustained in the attack.
An investigation of Mr. Holbrook's cell phone records and witness interviews led
law enforcement to Mr. Blizzard. The State's theory was essentially a murder for hire
scheme. Mr. Holbrook and Mr. Blizzard were former business partners. Although there
had been a falling out between the two men, Mr. Blizzard was the beneficiary of Mr.
Holbrook's life insurance policy: Prior to the May 2013 attack, Mr. Blizzard tried
recruiting various people to kill Mr. Holbrook. As part of this effort, he enlisted the help
of his sometimes-girlfriend, Jill Taylor. Ms. Taylor also happened to be Mr. Holbrook's
former daughter-in-law. Eventually, Mr. Blizzard recruited Ms. Taylor's roommate,
Adriana Mendez, and Ms. Mendez's boyfriend, Luis Gomez-Monges, to pose as
prospective homebuyers and attack Mr. Holbrook during a home tour.
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I
I Mr. Blizzard, Ms. Mendez, Mr. Gomez-Monges, and Ms. Taylor were charged in
connection with Mr. Holbrook's murder. During the pretrial phase of the case, Mr.
Blizzard moved to suppress records related to his cell phone. He argued the warrants
authorizing seizure of his cell phone records were invalid due to procedural and
substantive flaws.
Just prior to a hearing scheduled to address the cell phone warrants, the trial judge
received a letter authored by the county's elected prosecutor. 1 In the letter, the prosecutor
alleged the trial judge had "a bias and prejudice against the Yakima County Prosecuting
Attorney's Office." Clerk's Papers (CP) at 835. He criticized the trial judge's handling
of Mr. Blizzard's case as well as others. The prosecutor claimed the trial judge personally
disliked several prosecutors and "bent over backwards" to favor the defense. CP at 834.
He alleged the trial judge's bias made it "impossible for the State to get a fair trial." CP
at 83 5. Ultimately, the prosecutor requested the trial judge recuse herself or be removed
by the presiding judge.
The trial judge brought the letter to the parties' attention. The judge noted she had
consulted with the state's judicial ethics advisory committee. She expressed concern that
the letter was improper ex parte contact and constituted an attempt to intimidate the court.
1
The elected prosecutor at issue no longer holds office.
3
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.i The trial judge provided the State with a deadline for filing a formal recusal motion and
1 set a briefing schedule.
I
.
s
The State never filed a formal motion for recusal. Instead, the State's lead deputy
I prosecutor assigned to this case filed a notice of abandonment, disavowing the recusal
request. Mr. Blizzard, in tum, filed a motion to dismiss under CrR 8.3(b) for
prosecutorial misconduct based on the letter. The trial court denied Mr. Blizzard's
motion and continued to hear the case.
Shortly after ruling on Mr. Blizzard's motion to dismiss, the trial court denied his
motion to suppress the cell phone records. The court ultimately ruled on numerous
additional motions, including a second motion to dismiss based on an allegation the State
had intercepted attorney-client communications. While the judge denied this second
motion to dismiss, not all the court's rulings favored the State. Significantly, the trial
judge granted a defense motion to prohibit the State from filing enhanced charges, which
could have resulted in a mandatory life sentence.
At trial, codefendants Adriana Mendez and Jill Taylor turned state's evidence and
testified against Mr. Blizzard. Codefendant Luis Gomez-Monges was tried separately. A
· jury found Mr. Blizzard guilty of first degree murder. By special verdict, it also found
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(1) Mr. Blizzard was armed with a deadly weapon,2 and (2) Mr. Holbrook was
particularly vulnerable or incapable of resistance. Mr. Blizzard appeals.
ANALYSIS
The County Prosecutor's Letter
Mr. Blizzard focuses his appeal on various legal harms purportedly caused by the
county prosecutor's letter. According to Mr. Blizzard, the letter violated separation of
powers, constituted prosecutorial misconduct, and deprived him of a fair trial. We need
not address these concerns serially in a complicated, multi-faceted manner. The county
prosecutor's letter could only implicate separation of powers if it was so powerful and
divisive that it had the capacity to threaten the judge's independence. See Zylstra v. Piva,
85 Wash. 2d 743, 750, 539 P.2d 823 (1975). Similarly, any misconduct by the prosecutor in
issuing the letter would only warrant reversal if it fundamentally undermined the fairness
of the proceedings. State v. Davenport, 100 Wash. 2d 757, 762, 675 P.2d 1213 (1984). In
sum, regardless of whether the prosecutor was attempting to engage in misconduct or
invade the independence of the judiciary, the issue to be decided is whether the letter
2
Prior to commencing deliberations, the court instructed the jurors, in part: "If one
participant in a crime is armed with a deadly weapon, all accomplices to that participant
are deemed to be so armed, even if only one deadly weapon is involved." CP at 2691.
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deprived Mr. Blizzard of his right to a fair trial before a fair tribunal.
Fair trial claims fall into two categories: due process and claims under the
"appearance of fairness doctrine." Due process is a constitutional requirement. It
establishes the minimal requirements for a fair hearing. The appearance of fairness
doctrine provides greater protection. It permits litigants to make fair trial claims based on
violations of the Code of Judicial Conduct (Code), regardless of whether those claims
implicate due process. Tatham v. Rogers, 170 Wash. App. 76, 91-93, 283 P.3d 583 (2012).
Because a complaint under the appearance of fairness doctrine is not
constitutional, it generally cannot be raised for the first time on appeal. Once a basis for
recusal is discovered, prompt action is required. In re Pers. Restraint ofSwenson, 158
Wash. App. 812, 818, 244 P.3d 959 (2010). Delaying a request for recusal until after the
judge has issued an adverse ruling is considered tactical and constitutes waiver. Id.; State
v. Bolton, 23 Wn. App. 708,714,598 P.2d 734 (1979). 3
Mr. Blizzard never asked the trial judge to recuse herself. He claims doing so
would have impaired his speedy trial rights. But this concern is always present in
criminal cases. Mr. Blizzard fails to explain how his case is different or what type of
3
The appearance of fairness doctrine involves an objective inquiry into the impact
of prejudice on a judge. Swenson, 158 Wash. App. at 818. As a result, there is no need to
wait and see whether an improper influence will impact a judge's rulings.
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delay would have occurred had his case been assigned to a different judge. Less than a
year passed between Mr. Blizzard's arraignment and the start of trial. From a
constitutional perspective, this was prompt. Doggett v. United States, 505 U.S. 647, 651-
52, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). We fail to detect any obvious reason why
Mr. Blizzard could not have sought recusal in a timely manner. We therefore decline to
craft a generalized speedy trial exception that would swallow the well established rule
requiring a prompt motion.
Relief from waiver would be especially inappropriate here as the record indicates
Mr. Blizzard's decision not to seek recusal was tactical. The county prosecutor's letter
was disclosed on May 28, 2014. Trial did not begin until late August 2014. During the
period between these two dates, Mr. Blizzard appeared before the trial judge numerous
times and filed significant pleadings. 4 Yet he made no request for recusal. Mr. Blizzard's
actions demonstrated a willingness to "take his chances" with the trial judge. Bolton, 23
Wash. App. at 714-15. This strategy proved fruitful. The trial judge saved Mr. Blizzard
from facing a mandatory life sentence by granting the defense motion to prohibit the State
from filing enhanced charges; the judge excluded a State witness from testifying on
grounds of hearsay; and the judge ultimately imposed a much lower sentence than what
4
See, e.g., CP at 985, 1033 and 1062.
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was requested by the prosecution. 5 Mr. Blizzard cannot now go back on his choice to
remain with the trial judge simply because he has been convicted. Appellate review
under the appearance of fairness doctrine has been waived. Id.
Our due process analysis requires a different approach. Denial of the
constitutional right to a fair tribunal is a structural error that requires reversal regardless
of prejudice. Williams v. Pennsylvania,_ U.S._, 136 S. Ct. 1899, 1909-10, 195 L. Ed.
2d 1208 (2016). The rules of appellate procedure permit review of Mr. Blizzard's
constitutional claim even though it was not previously raised in the trial court. RAP
2.5(a)(3).
Due process generally involves an objective analysis. 6 We ask "not whether a
judge harbors an actual, subjective bias, but instead whether as an objective matter, the
average judge in his position is likely to be neutral or whether there is an unconstitutional
5 The prosecution requested a total sentence of 600 months, or 50 years. The judge
imposed 416 months, or 34 years. Mr. Blizzard was not yet 30 at the time of sentencing.
The trial court's discretionary rulings saved Mr. Blizzard from potentially spending the
rest of his life in prison.
6
A due process claim can stand in the rare case where a judge admits to actual bias
. but fails to recuse. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883, 129 S. Ct.
2252, 173 L. Ed. 2d 1208 (2009). Although never formally asked to recuse herself, the
trial court volunteered that she had "absolutely no question" in her mind she could be fair
and impartial in Mr. Blizzard's case. Verbatim Report of Proceedings (May 28, 2014) at
496.
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potential for bias." Williams, 136 S. Ct. at 1905 (internal quotation marks omitted)
(quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868,881, 129 S. Ct. 2252, 173 L. Ed. 2d
1208 (2009).
Through our country's significant history of litigation, only three circumstances
have been found to create unconstitutional judicial bias: ( 1) when a judge has a financial
interest in the outcome of a case, (2) when a judge previously participated in a case in an
investigative or prosecutorial capacity, and (3) when an individual with a stake in a case
had a significant and disproportionate role in placing a judge on the case through the
campaign process. Caperton, 556 U.S. at 877-884. In addition, the Supreme Court has
suggested, though not held, there may be an impermissible risk of bias when a judge is
the recipient of personal criticisms that are highly offensive. Ungar v. Sarafite, 376 U.S.
575, 583, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964).
The circumstances presented by Mr. Blizzard do not fall into any of the three
established categories of bias. He instead draws on the analysis suggested by Ungar that
the county prosecutor's letter to the judge was "so personal and so probably productive of
bias" the trial judge was constitutionally required to recuse herself. Id. The argument is
the county prosecutor's letter was so incendiary that a reasonable person could not help
but conclude the judge would feel intimidated and therefore pressured to issue future
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rulings in favor of the State.
Even if we were to accept that Ungar recognized a fourth category of
impermissible bias, it does not apply in Mr. Blizzard's case. The criticisms lodged
against the judge in this case were professional, not personal. They do not fall within the
scope of potential prejudice contemplated by Ungar. Judges are required by the Code to
disregard criticisms such as those lodged in this case. CJC Rule 2.4(A) ('judge shall not
be swayed by public clamor, or fear of criticism"). As recognized in Ungar, "[w ]e cannot
assume that judges are so irascible and sensitive that they cannot fairly and impartially
deal with resistance to their authority or with highly charged arguments about the
soundness of their decisions." Ungar, 376 U.S. at 584. Professional criticisms, no matter
how inaccurate or improper, do not meet this standard. A judge's duty to decide.all cases
presented to the court remains paramount.
Before considering Mr. Blizzard's remaining arguments, we briefly return to the
concept of separation of powers. Mr. Blizzard argues the county prosecutor's letter
threatened to undermine the balance of powers between the judicial and executive
branches of government. We agree this is a basis for concern. But it is a concern that
would only become manifest were we to grant relief. There must be consequences to
prosecutorial misconduct. However, dismissal is not always the appropriate response.
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No. 32866-0-111
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Dismissal in this case would not punish the prosecutor. With dismissal, the executive
branch might lose an individual case, but it would gain daunting power. A rule requiring
recusal in cases such as Mr. Blizzard's would enable the executive to manipulate the
judiciary and force future recusals at virtually any juncture of the proceedings simply by
hurling politically charged attacks. Dismissal would not punish the executive. It would
punish the judiciary. It would also punish Mr. Holbrook's family. The very need to
preserve separation of powers requires that Mr. Blizzard's challenge be denied.
Validity of the Search Warrants
Mr. Blizzard contends the trial court erred in admitting contents of his cell phone
records because they were not obtained pursuant to valid search warrants. His challenges
are both procedural and substantive. Our review is de novo. State v. Miles, 159 Wn.
App. 282,291,244 P.3d 1030 (2011); State v. Dunn, 186 Wash. App. 889, 896, 348 P.3d
791 (2015).
Procedural challenges
The warrants under review were issued by the Yakima County Superior Court after
similar warrants had been issued by the district court. The reason for reissuance was that
the State became concerned the district court lacked jurisdiction to issue warrants for out-
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of-state corporations. Because the State does not attempt to defend the district court
.·; warrants, we operate under the assumption they were invalid.
Il
·,
Mr. Blizzard challenges the superior court warrants on the basis that they were
obtained in reliance on information learned from the invalid district court warrants. Were
this argument factually accurate, there would be a strong argument for suppression.
Illegally obtained information cannot be used to support probable cause for a warrant.
J
I State v. Ridgway, 57 Wash. App. 915, 919, 790 P.2d 1263 (1990). But the facts are not as
suggested by Mr. Blizzard. The new information referenced by Mr. Blizzard pertains to a
~
I change in the company that owned Mr. Blizzard's cell phone lines. According to the
record, the State learned Mr. Blizzard's cell phone lines had been sold to a new company
through a series of law enforcement phone calls to cell phone company representatives.
This new information was not obtained by reviewing search warrant returns. Nor was it
.i
a
obtained by exploiting the existence of the invalidly issued warrants. 7 Because the State
J
independently discovered the change in phone companies, this information was properly
7One of the phone calls was to GOGH, Inc., the purchaser of Mr. Blizzard's phone
lines. A representative from GOGH confirmed the company had purchased Mr.
Blizzard's phone lines. This confirmation was received prior to any application for a
warrant to search GOGH's records. Thus, there can be no claim the State exploited an
improperly issued warrant to obtain this information. Wong Sun v. United States, 371
U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
J
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included in the superior court warrant application and does not provide a basis for
suppression. State v. Gaines, 154 Wash. 2d 711, 718, 116 P.3d 993 (2005).
Mr. Blizzard next argues the superior court warrant was invalid because it lacked
the following statutorily mandated language: "This warrant is issued pursuant to RCW
10.96.020. A response is due within twenty business days of receipt, unless a shorter time
is stated herein, or the applicant consents to a recipient's request for additional time to
comply." RCW 10.96.020(2).
Unless constitutional considerations are in play, the rules for the execution and
return of a search warrant are basically ministerial in nature. State v. Kern, 81 Wash. App.
308, 311, 914 P.2d 114 (1996). Generally, unless a defendant can show prejudice,
procedural noncompliance with these rules does not invalidate a warrant or.otherwise
require suppression of evidence. Id.; see also State v. Parker, 28 Wash. App. 425, 426-27,
626 P.2d 508 (1981) (officer served unsigned copy of warrant); State v. Smith, 15 Wn.
App. 716, 719, 552 P.2d 1059 (1976) (warrant failed to designate a magistrate for return);
State v. Bowman, 8 Wash. App. 148, 150, 504 P.2d 1148 (1972) (officer failed to properly
serve defendant with warrant); State v. Wraspir, 20 Wash. App. 626, 629, 581 P.2d 182
(1978) (officer failed to take inventory in presence of other person). Mr. Blizzard has not
shown or argued the warrants' failure to specify the time of its execution and return
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State v. Blizzard
prejudiced him in any way. The object of the search was not transitory or changeable or
stale. The dangers inherent in delay in execution were not implicated. The search
warrant was valid, despite the absence of the required language.
Substantive challenge
Substantively, Mr. Blizzard claims the search warrants were not supported by
probable cause. Probable cause to support a search warrant requires sufficient facts and
circumstances establishing a reasonable inference that the defendant participated in
criminal activity and that evidence of the crime will be found in the area to be searched.
State v. Dunn, 186 Wash. App. 889, 895-96, 348 P.3d 791 (2015).
The superior court warrant set forth numerous facts linking Mr. Blizzard's cell
phone lines with the Holbrook investigation. The affidavit disclosed that Mr. Blizzard's
company held a $1.58 million life insurance policy on Mr. Holbrook. The affidavit also
recited Ms. Mendez's confession that she and Mr. Gomez-Monges had posed as fake
homebuyers and that Mr. Gomez-Monges had attacked Mr. Holbrook while viewing a
prospective property. Although at the time Ms. Mendez denied the existence of a
conspiracy, she admitted to knowing Mr. Blizzard. In addition, Ms. Mendez's phone
records showed text messages between herself and Mr. Blizzard on the day of the attack.
The manager at Ms. Mendez's hotel identified Mr. Blizzard as the individual who had
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No. 32866-0-III
State v. Blizzard
been paying Ms. Mendez's rent. The manager recalled Mr. Blizzard stating he was suing
Mr. Holbrook's real estate company and was expecting to come in to a large sum of
money. This comment tended to corroborate the statements from Mr. Holbrook's family
members, alleging bad blood between Mr. Blizzard and Mr. Holbrook.
While the information set forth in the affidavit may not have been enough to
secure a conviction, it was sufficient to establish probable cause. The affidavit
established motive and an apparent conspiracy between Mr. Blizzard and Mr. Holbrook's
attackers. Because Mr. Blizzard and Ms. Mendez were contacting each other via text
message on the day of the attack, it was reasonable to infer that evidence about the attack
would be found on Mr. Blizzard's cell phone.
Attorney-Client Communications
While Mr. Blizzard was in pretrial custody, staff from the Yakima County jail
confiscated paperwork from his cell during a routine security sweep. The paperwork
turned out to be trial preparation materials, including discovery documents, defense
investigative memos, and handwritten notes. Based on this intrusion into his private
paperwork, Mr. Blizzard filed a motion to dismiss for governmental misconduct under
CrR 8.3(b).
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Dismissal under CrR 8.3(b) is an "extraordinary remedy." State v. Puapuaga, 164
Wn.2d 515,526, 192 P.3d 360 (2008). Even in the context of an improper intrusion into
confidential attorney-client communications, dismissal is unwarranted if there is "no
possibility of prejudice to the defendant." State v. Pena Fuentes, 179 Wash. 2d 808, 819,
318 P.3d 257 (2014). The State bears the heavy burden of proving lack of prejudice
beyond a reasonable doubt. Id at 819-20.
The trial judge considered Mr. Blizzard's CrR 8.3(b) motion after conducting a
lengthy evidentiary hearing. At the close of the hearing, the judge found the contents of
the confiscated materials had never been shared with anyone involved in the prosecution
team, including law enforcement officers. The lead case agent did not even know Mr.
Blizzard's documents had been confiscated until the defense filed a motion to dismiss.
The trial judge found that while some jail staff saw Mr. Blizzard's documents, no one
looked at the materials in detail. In addition, no one with access to Mr. Blizzard's
documents discussed the contents with anyone else.
Mr. Blizzard assigns no error to the trial court's factual findings; as such, they are
verities on appeal. State v. Perrow, 156 Wash. App. 322, 325, 231 P.3d 853 (2010). The
trial judge's findings are sufficient to justify denial of the motion to dismiss. What little
information was obtained by jail staff was never shared with the prosecution or law
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State v. Blizzard
enforcement investigators. Because there was no possibility that seizure of Mr.
Blizzard's documents benefited the State or prejudiced the defense, dismissal was
unwarranted. Pena Fuentes, 179 Wash. 2d at 821-22.
Additional Prosecutorial Misconduct
Mr. Blizzard argues additional misconduct by the State exacerbated the structural
error caused by the county prosecutor's letter. Our ruling regarding the county
prosecutor's letter undercuts his claim. In any event, none of the alleged remaining errors
warrant reversal.
Standard of review
To succeed on a prosecutorial misconduct claim, a defendant must show not just
improper conduct, but also prejudice. In re Pers. Restraint o/Glasmann, 175 Wash. 2d 696,
704, 286 P.3d 673 (2012). Usually misconduct claims can be efficiently remedied at the
trial court stage of the proceedings. A defendant who waits until appeal to raise
misconduct arguments bears a heavy burden. We will only reverse if prosecutorial
misconduct is "so flagrant and ill intentioned that it causes an enduring and resulting
prejudice that could not have been neutralized by an admonition to the jury." State v.
Russell, 125 Wash. 2d 24, 86, 882 P.2d 747 (1994).
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Alleged discovery violation
Mr. Blizzard argues the State committed misconduct when it failed to identify the
text messages it intended to use at trial, in violation of a court order. The record shows
otherwise. During a pretrial proceeding, the State represented it intended to introduce
150 pages of text messages at trial. This was pared down from 30,000 pages originally
contained in the discovery. The trial judge accepted the State's representation as
satisfying the court's order. Defense counsel responded, "[t]hat's fine." Verbatim Report
of Proceedings (July 30, 2014) at 1222. No discovery violation occurred.
Abortion testimony
Mr. Blizzard asserts the State introduced prejudicial character evidence by eliciting
testimony from Jill Taylor that Mr. Blizzard impregnated her on three occasions and
terminated each pregnancy through abortion. At the time of Ms. Taylor's testimony, the
defense did not object on the basis of either improper character evidence or prosecutorial
misconduct. Had character been a concern, Mr. Blizzard could have sought a curative
instruction. But he did not. Instead, defense counsel asked Ms. Taylor further questions
about the abortions and mentioned the abortions in closing argument. Mr. Blizzard's
request for relief based on the abortion testimony is denied as waived.
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Foundation for text messages
Mr. Blizzard contends the State did not establish a foundation for admission of the
text messages taken from his phone. This is a claim of evidentiary error. It cannot even
loosely be classified as prosecutorial misconduct. Reviewing the trial judge's evidentiary
rulings for abuse of discretion, State v. Bradford, 175 Wash. App. 912, 927, 308 P.3d 736
(2013), we find no error.
The text messages were never fully admitted to the jury. Although various
witnesses testified about some of the messages, copies of the actual text records were
never published to the jury or sent back to the jury room. When the jury submitted a
question during deliberations, asking if the text messages had been admitted, they were
told they had received all admitted evidence. Given the jury never received copies of the
text message exhibits, the scope of Mr. Blizzard's evidentiary challenge is quite limited.
Particularly given the nature of the evidence shared with the jury, the State
established a sufficient foundation. The text messages in question were either between
Mr. Blizzard and Ms. Mendez or Mr. Blizzard and Ms. Taylor. Both Ms. Mendez and
Ms. Taylor testified at trial and identified the text messages as ones between themselves
and Mr. Blizzard. Although Ms. Mendez could not recall Mr. Blizzard's cell phone
number, she recognized the content of the text messages, and Ms. Taylor confirmed Mr.
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Blizzard's number. Mr. Blizzard's cell number was also confirmed by testimony
regarding the search of the cell phone that had been seized from Mr. Blizzard at the time
of his arrest. Because competent, first-hand evidence tied Mr. Blizzard's cell phone to
the text messages, the State presented sufficient evidence of authenticity to allow
presentation of its evidence. State v. Young, 192 Wn. App. 850,369 P.3d 205 (2016).
Cell phone record testimony
Finally, Mr. Blizzard claims the State introduced testimony regarding cell phone
records and cell phone location without proper foundation. Again, this error is at most
evidentiary, not misconduct. Nevertheless, as is true in the misconduct context, we will
not reverse for evidentiary error absent prejudice to the defense. State v. Jackson, 102
Wash. 2d 689, 695, 689 P.2d 76 (1984).
The cell phone evidence at issue in this portion of Mr. Blizzard's argument did not
pertain to Mr. Blizzard. The phone records pertained to Mr. Holbrook and the cell phone
location evidence pertained to Ms. Mendez. The State introduced this evidence to
corroborate Ms. Mendez's testimony that she had been in contact with Mr. Holbrook prior
to the assault and that she was near him at the time of the assault. Neither of these facts
was contested by the defense. The defense theory was that Ms. Taylor had been
responsible for recruiting Ms. Mendez and Mr. Gomez-Monges to kill Mr. Holbrook.
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No. 32866-0-III
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This theory was not undermined by the introduction of Ms. Mendez's and Mr. Holbrook's
cell phone evidence. Any evidentiary error was harmless.
CONCLUSION
Mr. Blizzard received a fair trial, administered by an impartial judge. He suffered
no meritorious claims of error. The judgment and sentence is affirmed.
Pennell, J.
WE CONCUR:
Fearing, C.J.
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