Washington

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

State v. Stein,
972 P.2d 505 (Wash.App.Div.2 02/26/1999)

Washington Court of Appeals

No. 20813-0-II, (consolidated) No. 21767-8-II

94 Wash.App. 616, 972 P.2d 505

February 26, 1999

STATE OF WASHINGTON, RESPONDENT,

v.

JOHN KENNETH STEIN AKA JACK STEIN, APPELLANT. IN RE THE PERSONAL RESTRAINT PETITION OF: JACK K. STEIN, PETITIONER.

SOURCE OF APPEAL Appeal from Superior Court of Clark County Docket No: 88-1-00788-8 Judgement or order under review Date filed: 09/01/1989 Judge signing: Hon. Philip W. Borst

Counsel OF Record Counsel for Appellant(s) William D. Hutcheson Jr Attorney At Law Bldg 3 1800 Cooper Point Rd SW Olympia, WA 98502 Counsel for Respondent(s) Dennis Hunter Clark Co Deputy Pros Atty P.o. Box 5000 Vancouver, WA 98668

The opinion of the court was delivered by: Seinfeld, P.j.

JUDGES Authored by Karen G. Seinfeld Concurring: Elaine M. Houghton J. Robin Hunt

PART PUBLISHED OPINION

Jack Stein appeals his convictions of three counts of attempted murder and one count of burglary. We conclude that the court's instructions erroneously allowed the jury to convict Stein on the basis of vicarious liability without finding that he was legally accountable as an accomplice.*fn1 Because this is prejudicial error, we reverse.

FACTS

Jack Stein believed that a group of people, including his father's appointed guardian, Ned Hall, and his father's long-term companion, Thelma Lund, were conspiring to control and deprive him of the substantial assets in his father's estate. As a result, in 1983, he asked his stepson, Michael Norberg, if he could find someone who "could arrange an accident for these people that were involved." Stein said that he would pay $10,000 for each person eliminated.

The relationship between Stein and attorney Hall continued to deteriorate and in the spring of 1987, Stein gave Norberg "flash cash" to use in enticing one of his friends to help. After Norberg "flashed" a large amount of cash, Richard Bailey agreed to do a "job." Stein provided Norberg a key to Lund's home and in April 1987, Lund was severely beaten and strangled to death in her home. Norberg later testified that Bailey went into Lund's trailer to threaten her, but killed her instead. But Bailey said that Norberg killed Lund in her trailer while he hid in the bushes.

After Lund's murder, Stein took Norberg to Hall's hunting cabin in Oregon and discussed it as a potential spot for an isolated confrontation. Norberg said that he gave Bailey the "exclusive rights" for the "hit" of Hall to satisfy Bailey's demands for payment for the Lund killing. In June 1987, Bailey, Norberg, and others participated in three separate unsuccessful attempts to kill or intimidate Hall. The first involved Bailey, Norberg, Gordon Smith, and Steve Conley. The foursome went to Hall's house armed with bottles filled with a Naptha soap-gasoline mixture. They intended to "scare Ned Hall" by igniting the bottles. Bailey testified that he and Smith carried the bottles to the edge of Hall's back yard, but then ran away leaving the bottles behind.

The second attempt was three to five days later. Bailey testified that he and Smith went to Hall's house after Norberg provided them each with a handgun and promised to pay Bailey if he killed Hall. Hall said a man rang his doorbell at 4:30 a.m. and asked to use the telephone; Hall did not open the door. Later, another man rang Hall's doorbell. Hall spoke to the man briefly through an open window. Norberg testified that he was unaware of this second occurrence until after it happened.

The third attempt on Hall occurred on June 14, 1987, when Smith, Norberg, Bailey, and Bailey's brother went to Hall's house armed with weapons. Norberg remained at the corner of the yard to watch the road while Smith climbed into the house through the bathroom window. When Hall started to enter the bathroom, Smith fired a shot through the door, dove out the window and ran with the Baileys, leaving Norberg behind.

Norberg testified that he had told the others before leaving that night that "they weren't to do any more activity over at Ned Hall's house." He also claimed that "{t}hey weren't attempting to kill Ned Hall, they were attempting to persuade him{}" and that he had gone along to observe the "persuasion" and verify that it was completed. After this third attempt, Ned Hall resigned as Nicholas Stein's limited guardian.

Later in the summer, Stein expressed his satisfaction to Norberg and Bailey that the attempts on Hall's life had led to Hall's resignation. According to Bailey, Stein told him that payment for his services would soon be forthcoming, but that first he wanted Bailey to blow up the Clark County Courthouse and kill a Judge. Stein also indicated that "he still wanted Ned Hall done in."

Following an investigation, the State charged Stein with the following criminal counts:

I. conspiracy with Michael Norberg, Gordon Smith, and Richard Bailey to commit first degree murder, RCW 9A.28.040(1) and (3)(a);

II. felony first degree murder of Thelma Lund, RCW 9A.32.030(1)(c);

III. aggravated first degree murder of Thelma Lund, RCW 9A.32.030(1)(a), based upon the aggravating factors of solicitation, RCW 10.95.020(5), and commission of the murder during the course of burglary, former RCW 10.95.020(9)(c) (1981);

IV.-VI. criminal attempts to commit the first degree murder of Charles (Ned) Hall on June 1, 1987, between June 2 and June 13, 1987, and June 14, 1987, RCW 9A.28.020(1) and (3)(a);

VII. burglary in the first degree, RCW 9A.52.020. Ultimately, the State based Counts II through VII upon vicarious liability. RCW 9A.08.020.

The jury acquitted Stein of Counts I through III but convicted him of Counts IV through VII, the three attempts to murder Ned Hall and the burglary. The trial court sentenced Stein to 180 months for each count of attempted first degree murder and ordered that he serve the sentences consecutively.

In this appeal,*fn2 Stein claims that the trial court erred in (1) instructing the jury on vicarious liability; (2) denying his motion to remove trial counsel and trial counsels' motion to withdraw; and (3) allowing another Judge to testify about earlier civil proceedings involving Stein. Stein also claims that (4) the prosecuting attorney's pre-charging bias violated the appearance of fairness doctrine; (5) the State knowingly presented perjured testimony; (6) cumulative evidentiary errors denied him a fair trial; and (7) the State's evidence was insufficient as a matter of law to prove accomplice liability. (8) Stein also appeals his consecutive sentences for the three attempted murder counts, contending that they should be concurrent.

Pro se, Stein argues that: (1) the court violated his speedy trial rights; (2) recantation affidavits by key State witnesses require reversal or a new trial; (3) professional misconduct by various officials violated due process; (4) the trial court improperly denied Stein's request for appointed counsel on appeal; and (5) appellate counsel's deficient performance on his first appeal resulted in unconstitutional delay of his direct appeal. Stein raises identical issues in his Petition for Habeas Relief, which we have consolidated with his direct appeal.*fn3

DISCUSSION

I. VICARIOUS LIABILITY INSTRUCTIONS

The trial court gave the following vicarious liability instructions: Instruction 16 A person is legally accountable for the conduct of another person when the defendant is an accomplice of such other person in the commission of the crime.

A defendant who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.

A defendant is an accomplice in the commission of a crime, if, with knowledge that it will promote or facilitate the commission of the crime, he either:

(1) solicits, encourages, or requests another person to commit the crime{;} or

(2) aids or agrees to aid another person in planning or committing the crime.

The word "aid" means all assistance whether given by words, acts, encouragement, support or presence.

Instruction 17

A person is guilty of a crime if it is committed by the conduct of an accomplice for which he is legally accountable.

A person legally accountable for the conduct of an accomplice may be convicted on proof of the commission of the crime and of his complicity therein, though the person claimed to have committed the crime has not been prosecuted or convicted or has been convicted of a different crime or degree of crime.

Instruction 18

A person is also legally accountable for the conduct of another person when the defendant is a co-conspirator of such other person, and the acts or conduct of the other person are a reasonably foreseeable consequence of the unlawful agreement.

Instruction 19

When a defendant, with intent that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause the performance of such conduct, he becomes a member of a conspiracy, and continues to be a member of such conspiracy, and is responsible for all the acts of all members of the conspiracy regardless of whether or not he met or conversed with all the other members of the conspiracy, and regardless of whether or not he had knowledge of the commission of such acts by other members of the conspiracy, so long as the acts of the other members of the conspiracy were reasonably forseeable as acts done in furtherance of the agreement.

We refer to instructions 16 and 17 as the "accomplice liability" instructions and instructions 18 and 19 as the "Pinkerton" instructions. Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). The trial court also instructed the jury, in instruction 8, that: A separate crime is charged in each count. You should decide each count separately as if it were a separate trial. Your verdict on one count should not control your verdict on any other count.

Stein argues that it was reversible error to give the Pinkerton instructions because the Pinkerton doctrine is not the law in Washington and the Pinkerton instructions improperly allowed the jury to hold him vicariously liable without finding him guilty of all the elements of accomplice liability. He argues, alternatively, that even if the Pinkerton doctrine was the law in this State, the trial court's instructions are defective because they do not include all the necessary elements. Finally, Stein contends that defense counsel's failure to object to the court's instructions constitutes ineffective assistance of counsel.

The State contends that by failing to object below, Stein waived appellate review; that the Pinkerton doctrine is consistent with Washington law; and that any instructional error was harmless because the jury acquitted Stein of conspiracy and, thus, necessarily based its guilty verdicts on the accomplice liability instructions, not the Pinkerton instructions.

A. Preservation of Issue on Appeal

The Pinkerton instructions immediately followed the accomplice liability instructions; together they provided two alternative theories of vicarious liability - one based upon the accomplice liability statute, RCW 9A.08.020, and the other based loosely upon the federal Pinkerton doctrine. Using the Pinkerton instruction, the jury could have found Stein guilty of murder and burglary without finding proof of each element of accomplice liability.

Jury instructions that omit an element of the charged crime present an error of constitutional magnitude. State v. Scott, 110 Wn.2d 682, 688 n.5, 757 P.2d 492 (1988) (citing State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983), overruled on other grounds in State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985)). The error alleged here was tantamount to omitting an essential element of the charged crime. Because a failure to object to such an error below does not preclude appellate review, we consider Stein's claimed error. Scott, 110 Wn.2d at 685 n.5, 690; Johnson, 100 Wn.2d at 623.

B. Pinkerton Liability in Washington

Under the federal Pinkerton doctrine, a defendant may be liable for the substantive acts of others upon proof that (1) the defendant was guilty of conspiracy, (2) a co-conspirator committed the substantive crime pursuant to and as a reasonably foreseeable consequence of the conspiracy, and (3) the defendant was a member of the conspiracy at the time the crimes were committed. Pinkerton, 328 U.S. at 645-47; United States v. Aramony, 88 F.3d 1369, 1379 (4th Cir. 1996); United States v. Campione, 942 F.2d 429, 438 (7th Cir. 1991); United States v. Alvarez, 755 F.2d 830, 847 (11th Cir. 1985). Thus, under the Pinkerton doctrine, a defendant who is acquitted of conspiracy or whose conspiracy conviction is reversed on appeal cannot be liable for the substantive crimes committed by another. United States v. Rosas-Fuentes, 970 F.2d 1379, 1383 (5th Cir. 1992) (substantive conviction based on Pinkerton fails when conspiracy conviction reversed); United States v. Nusraty, 867 F.2d 759, 765 (2nd Cir. 1989) (insufficient evidence or acquittal of conspiracy preludes Pinkerton liability); but see United States v. Gallo-Chamorro, 48 F.3d 502, 505 (11th Cir. 1995) (conviction of substantive charge upheld although defendant acquitted of conspiracy where verdicts could be read as consistent because jury could have found that defendant was involved in more than one conspiracy).

We find no Washington cases citing Pinkerton as the basis for vicarious criminal liability. Further, none of the cases that the State cites hold a defendant liable for the substantive acts of a co-conspirator without also satisfying the requirements of statutory accomplice liability.*fn4 The State also cites RCW 9A.04.060, which provides: "{t}he provisions of the common law relating to the commission of crime, insofar as not inconsistent with the . . . statutes of this state, shall supplement all penal statutes." Under this statute, the Pinkerton doctrine arguably could be applicable in Washington. But because the Pinkerton instructions that the trial court gave here were fatally defective, we leave for another day the question of the doctrine's applicability in this jurisdiction.

The court's Pinkerton instructions were defective because they failed to advise the jury that it could not hold Stein liable for the substantive acts of co-conspirators unless it also found Stein guilty of conspiracy. Thus, even assuming the applicability of the doctrine, the instructions were defective because they failed to include all the doctrine's essential elements. See State v. Smith, 131 Wn.2d 258, 263-64, 930 P.2d 917 (1997); State v. Eastmond, 129 Wn.2d 497, 502-03, 919 P.2d 577 (1996).

C. Harmless Error

The State suggests that accomplice liability and Pinkerton liability are virtually the same. Based upon this premise, it contends that the erroneous Pinkerton instructions were harmless. We disagree. We presume that an instructional error is prejudicial unless the State satisfies its burden of affirmatively showing harmless error. Smith, 131 Wn.2d at 263-64. Failure to instruct on an element of offense is reversible error. Smith, 131 Wn.2d at 265; Eastmond, 129 Wn.2d at 503 (omission of an element of the crime is fatal error because it relieves the State of its burden of proving every essential element beyond a reasonable doubt); State v. Garcia, 65 Wn. App. 681, 691, 829 P.2d 241 (1992) (reversal required even if there were valid instructions if jury might have convicted relying upon other instructions for which conviction was impermissible).

The Pinkerton instructions in this case provided for substantially broader liability than did the accomplice liability instructions. A comparison of the elements of each is illustrative:

Elements of Accomplice Liability

Instructions 16 and 17

(1) D solicits, encourages or requests another to commit the charged crime; OR

(2) D aids or agrees to aid another in planning or committing the charged criminal conducts; AND

(3) D had knowledge his conduct would promote AND or facilitate commission of charged crime; AND

(4) Another person committed the charged crime. agreement. AND

Elements of Pinkerton Liability Instructions 18 and 19

(1) D has intent that criminal conduct be performed AND

(2) D agrees with another to (a) engage in such conduct ; OR (b) cause the performance of such conduct

(3) Charged crime is reasonably foreseeable consequence of the unlawful

(4) A co-conspirator committed charged crime;

Thus, under the court's Pinkerton instructions, the jury could have found Stein liable for the attempts to murder Ned Hall if it found that (1) Stein intended the commission of any criminal conduct, such as assault, and (2) Stein agreed with one of the co-conspirators to cause the performance of such conduct, and (3) the murder attempts were a reasonably foreseeable consequence of the agreement to commit the lesser crime. Under the Pinkerton instructions, it was not necessary to prove that Stein had any involvement in or even knew about the murder attempts; he could be found guilty of the murders and burglary based upon a finding that he and Norberg agreed to assault Hall if the murder attempts were a reasonably foreseeable consequence of that agreement.

But these facts would not have supported an attempted murder conviction under the accomplice liability instructions unless the jury further found that Stein actually had knowledge that his conduct would promote or facilitate the commission of the murder attempts. Thus, a jury could have found Stein guilty under the court's Pinkerton instructions on evidence that would not have persuaded it to find him guilty of accomplice liability.

Further, contrary to the State's argument, the jury's acquittal on the conspiracy charge does not necessarily indicate that the jury did not rely upon the Pinkerton instructions. The trial court did not instruct the jurors to ignore the Pinkerton instructions if they acquitted on the conspiracy charge. Rather, it specifically instructed the jury that its "verdict on one count should not control" its verdict on any other count. In addition, the State focused on a conspiracy theory of liability and did not discuss accomplice liability during closing argument. The prosecutor quoted in full instruction 19, and then argued that Stein was liable for Lund's murder based upon a conspiracy theory. The prosecutor then continued:

{Stein}'s guilty of all the acts of all the other conspirators even if he didn't know they were being committed at the time. That liability flows from the law which says once you get into a conspiracy you're stuck. You're liable for what everybody else does.

The law does not treat conspirators lightly. In terms of their liability for the acts of others.

Later in the argument, the prosecutor further stated:

In a conspiracy case, ladies and gentlemen, there are a lot of pieces and a lot of parts of the puzzle, and you have to look at all of them and put them together and use your ability to do that. To draw reasonable inferences. Bailey did agree to kill Ned Hall in May of 1987, and Bailey went out and recruited still another member of this conspiracy, another member who once he enters the conspiracy Jack Stein becomes liable for his conduct if Jack Stein was a member of the conspiracy already, and that was Mr. Gordon Smith.

The accomplice liability and Pinkerton instructions contain significant differences and there is no basis to conclude that the jury relied on the correct accomplice liability instructions in reaching its verdicts. By permitting the jury to convict Stein under an improper theory, the court relieved the State of its burden of proving beyond a reasonable doubt every essential element of accomplice liability. Accordingly, the instructional error was of constitutional magnitude and it was not harmless; we must reverse the convictions. Smith, 131 Wn.2d at 264.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Although we reverse, we next consider the challenge to the sufficiency of the evidence to determine if the State may retry Stein. We also consider various other assignments of error to aid the trial court and the parties in the event of a retrial.

II. SUFFICIENCY OF THE EVIDENCE

Stein contends that the evidence, viewed in the light most favorable to the State, does not support the inference that Norberg committed the acts charged in Counts IV, V, VI, or VII. Accordingly, he contends that he cannot be liable as an accomplice.

Accomplice liability is established with proof that the defendant, with knowledge that it will promote or facilitate commission of the crime, either (1) "solicits, commands, encourages, or requests {another} person to commit it," or (2) "aids or agrees to aid such other person in planning or committing it." State v. Modest, 88 Wn. App. 239, 250, 944 P.2d 417, review denied, 134 Wn.2d 1017 (1997) (quoting RCW 9A.08.020(3)(a)(i), (ii)). The test for sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Fussell, 84 Wn. App. 126, 128, 925 P.2d 642 (1996).

Here, the evidence viewed in the light most favorable to the State supports the Conclusion that Stein was an accomplice because he solicited another person to kill Hall with knowledge that his conduct would facilitate the killing. See Modest, 88 Wn. App. at 250. Further, the evidence supports the Conclusion that the attempted murders and burglary were committed pursuant to his solicitation. Thus, there was sufficient evidence to hold Stein accountable as an accomplice.

Stein asserts that the reference to "such other person" in RCW 9A.08.020(3)(a)(i) is limited to the wrongdoer in RCW 9A.08.020(1).*fn5 In other words, Stein contends that he cannot be liable as an accomplice unless the person he solicited (Norberg) is the person who actually committed the acts for which he is held legally accountable.

This construction of RCW 9A.08.020 would allow sophisticated criminals to avoid accomplice liability by engaging in a multiple-tiered arrangement: soliciting person # 1 to solicit person # 2 to commit the criminal act. This would be an absurd result. See State v. Riles, 135 Wn.2d 326, 340, 957 P.2d 655 (1998) (courts must construe statutes to avoid strained or absurd interpretations). We conclude that the Legislature did not intend this interpretation.

Nor are we persuaded by Stein's argument that our interpretation of RCW 9A.08.020 somehow renders the criminal solicitation statute a nullity. Criminal solicitation requires "intent"; whereas accomplice liability requires only "knowledge." Cf. RCW 9A.28.030 and RCW 9A.08.020. In any event, Stein's argument incorrectly assumes that the Legislature is precluded from adopting a statutory offense composed of elements that all are included in a greater offense.

III. RIGHT TO COUNSEL OF CHOICE

Stein contends that the trial court violated his right either to self-representation or representation of his own choice by denying his motion to remove his counsel and by denying counsel's motion to withdraw. He claims that third parties retained and paid his attorneys without his consent, violating his right to counsel free from conflict of interest. He also asserts that the record does not support the court's findings of fact and Conclusions of law.

Two attorneys entered an appearance on Stein's behalf, representing themselves as Stein's retained counsel. But during a telephone conference call about four months later, in late April 1989, Stein stated: "I want it very clear on the record that I haven't selected counsel for this case." He said that he was interviewing potential replacement counsel, but did not indicate any conflict of interest.

After the attorneys moved for partial distribution of Stein's father's estate in the civil case, Stein filed a motion and affidavit to remove defense counsel in his criminal case. He alleged that third persons whose interests were adverse to his were paying the attorneys' fees; that the attorneys had been retained without his knowledge and consent; and that he did not wish to be represented by them.

At some point around this time, defense counsel raised the issue Stein's competency to stand trial.*fn6 Stein's conflict of interest claims and his competency dominated several proceedings in May and June.

Stein testified that the prosecuting attorney was conspiring with the persons who were paying his defense counsel. Defense counsel denied this allegation, claiming that Stein's cousin, who had paid the defense fees, had "consistently done what he could to help Mr. Stein notwithstanding Jack's total delusional and paranoid Conclusions." Further, mental health professionals testified that Stein was suffering from an organic delusional disorder that led to his fears of a conspiracy. One of the examining doctors opined that Stein would likely have problems with any counsel.

The trial court denied Stein's motion to remove defense counsel and defense counsel's later motion to withdraw. It also refused to consider allowing Stein to proceed pro se.

A. Adequacy of the Record

The State contends that the record is inadequate to review the trial court's factual findings. Although we do not have the record for the hearings that allegedly occurred on May 8 and May 24, the record we do have contains substantial evidence to support the court's factual findings. Thus, we review the trial court's Conclusions of law de novo. Biermann v. City of Spokane, 90 Wn. App. 816, 821, 960 P.2d 434 (1998) (factual findings reviewed for substantial evidence, Conclusions of law reviewed de novo); State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995) (effective assistance of counsel challenge reviewed de novo).

B. Actual Conflict of Interest

The Sixth Amendment affords a criminal defendant the right to effective assistance of counsel, free from conflicts of interest. White, 80 Wn. App. at 410 (citing Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981)). An attorney's conflict of interest creates reversible error without a showing of prejudice if (1) the defendant shows an actual conflict adversely affecting his lawyer's performance; or (2) the trial court knows or reasonably should know of a potential conflict into which it fails to inquire. White, 80 Wn. App. at 411 (citing In re Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983)). Because Stein has not demonstrated prejudice, we limit our inquiry to the above situations.

As to the first situation, we engage in a two-part inquiry: (1) was there an actual conflict of interest; and (2) if so, did the conflict adversely affect the performance of defendant's attorney? White, 80 Wn. App. at 411. An actual conflict of interest exists when a defense attorney owes duties to a party whose interests are adverse to those of the defendant. White, 80 Wn. App. at 411 (citing State v. Byrd, 30 Wn. App. 794, 798, 638 P.2d 601 (1981); RPC 1.7(b)).

Here, nothing in the record indicates an actual conflict, i.e., that defense counsel represented the interests of Stein's cousin, that the cousin's interests were adverse, or that the cousin was privy to any confidential information. *fn7 Nor does the record indicate that the alleged conflict adversely affected trial counsel's defense of Stein. White, 80 Wn. App. at 411.

Nor does the record support Stein's contention that the trial court failed to conduct proper inquiry once it became aware of a potential conflict. The court considered the conflict issue during at least three hearings on the record. It interrogated defense counsel in closed proceedings; reviewed the memoranda filed in connection with Stein's motion; heard the testimony of witnesses, including Stein; and heard argument of counsel.

C. Right to Self-Representation

Stein contends that he requested permission to proceed pro se, but that this request was excised from the record. The State responds that Stein never requested permission to proceed pro se.

The assertion of the right to proceed pro se must be unequivocal. State v. Luvene, 127 Wn.2d 690, 698, 903 P.2d 960 (1995); State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991). Although the record indicates that Stein mentioned attempting to act as co-counsel, there is no evidence of an unequivocal assertion of the right to proceed pro se. Thus, we find no denial of the right to self-representation.

D. Right to Counsel of Choice

The Sixth Amendment right to counsel includes "'the right to a reasonable opportunity to select and be represented by chosen counsel.'" State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). But this right is not absolute. Roth, 75 Wn. App. at 824. The public's interest in prompt and efficient judicial administration may require limitations. DeWeese, 117 Wn.2d at 375 (citing United States v. Wheat, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)).

A trial court has discretion to decide whether a defendant's dissatisfaction with his counsel is meritorious. State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997), cert. denied, 118 S. Ct. 1193 (1998). In making this determination, the court may consider (1) whether defendant has a legitimate cause for dissatisfaction; (2) whether substitute counsel is available and prepared for trial; (3) whether the substitution of counsel will substantially prejudice the defendant's case; and (4) whether the substitution of counsel will unduly delay scheduled proceedings. Stenson, 132 Wn.2d at 734; Roth, 75 Wn. App. at 824.

Here, Stein did not demonstrate an actual conflict of interest or show that replacement counsel was immediately or prospectively available. In addition, (1) defense counsel did not separately move to withdraw until after the jury was impaneled; (2) defense counsel had requested and obtained three previous continuances; (3) the recusal of the entire Clark County bench had necessitated the special appointment of a trial Judge; (4) Stein's relationship with counsel remained cooperative and cordial; and (5) counsel's performance was highly competent and, thus, withdrawal would have prejudiced Stein. Stein's general loss of confidence or trust in his counsel was insufficient to warrant the appointment of new counsel under the circumstances here. Stenson, 132 Wn.2d at 734. The trial court properly exercised its discretion in denying Stein's motion.

IV. PROSECUTORIAL BIAS

Sometime before the trial at issue here, the Clark County Prosecutor, an alumnus of Lewis and Clark Law School, had become aware that Stein was enrolled in the law school as a first year student. In his official capacity, the prosecutor advised the school that Stein had a criminal record and he urged reconsideration of its admission decision. Relying on these facts, about one month before trial Stein moved to disqualify the Clark County Prosecuting Attorney based upon "unprofessional bias." The court denied the motion and Stein appeals. Stein also claims bias related to contacts Hall had with the prosecutor in the course of obtaining a protective order for Nicholas Stein.

Stein's contention that the prosecutor's conduct demonstrates potential bias and entitles him to reversal lacks merit. A prosecutor is a quasijudicial officer and, therefore, must act impartially. But a prosecutor's participation in non-adjudicatory proceedings, such as a coroner's inquest, does not violate the appearance of fairness doctrine. Carrick v. Locke, 125 Wn.2d 129, 143 n.8, 882 P.2d 173 (1994). Further, A judicial proceeding is valid under the appearance of fairness doctrine "if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial and neutral hearing." State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992).

The Clark County Prosecutor never acted as a Judge, arbitrator, mediator, or other adjudicative officer in relation to Stein. See RPC 1.12(a). The events Stein cites bear no relationship to the criminal trial and do not establish potential bias or indicate partiality. Thus, the trial court properly denied Stein's motion to disqualify the Clark County Prosecuting Attorney's office.

V. USE OF PERJURED TESTIMONY

Stein contends that the State knowingly used perjured testimony and thereby violated his right to due process. Specifically, he asserts that Norberg or Bailey or both committed perjury because they "each testified that he waited outside the trailer while the other killed Thelma Lund." The State acknowledges that one of these statements necessarily is untrue. As the State concedes, a "'conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the {allegedly} false testimony could have affected the Judgement of the jury.'" In re Personal Restraint of Benn, 134 Wn.2d 868, 936-37, 952 P.2d 116 (1998) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)). Thus, we need not decide whether a witness gave perjured testimony or whether the State knew of its truth or falsity, unless there is a reasonable likelihood that the allegedly false aspects of such testimony could have affected the Judgement of the jury. Benn, 134 Wn.2d at 397 (citing Agurs, 427 U.S. at 103).

Here, there is no such likelihood. Norberg testified that Stein recruited him to kill Thelma Lund, Ned Hall, and others. Bailey testified that Norberg recruited him to become involved in killing Hall. Bailey's and Norberg's testimony concerning the attempts on Hall's life were consistent. The discrepancy in the testimony of Norberg and Bailey, who blamed each other for actually killing Lund, did not affect evidence that Stein was involved in the attempted murder of Hall and in the burglary. Thus, we see no reasonable likelihood that the obvious falsehood on the part of either Norberg or Bailey could have affected the jury's verdicts. Under the facts here, the State's knowing use of perjured testimony does not require reversal. See Benn, 134 Wn.2d at 937.

VI. TESTIMONY OF JUDGE LODGE

The State introduced the testimony of Clark County Superior Court Judge Thomas Lodge to prove Stein's motive in seeking the death of Hall - that Hall was part of a "good ol' boy system" in Clark County aimed at depriving Stein of control of his father's assets. Judge Lodge testified that Stein had appeared before him at least 50 times in various civil cases and had made inappropriate ex parte contacts by confronting him in a belligerent manner in chambers, in the hallway, and outside the courthouse. Judge Lodge stated that Stein "went bananas" in his courtroom, that Stein was the only person he had ever thrown in jail for contempt, and that others had told him that Stein had conspired to kill him. Judge Lodge also described a finding he had made to the effect that Stein had forced Nicholas Stein, who had suffered a stroke, to assign him a real estate contract without consideration.

Stein argues that Judge Lodge's testimony violated his due process rights because it improperly "lent the prestige of the judiciary to the State's case," and because it was not limited to brief factual matters. Stein further contends that much of Judge Lodge's testimony should have been excluded under ER 403 and 404(b).

The State claims that this case presents one of those "rare circumstances" when a Judge may give evidence as to matters upon which he has acted in a judicial capacity. The State further notes that Judge Lodge testified without objection.

We find no absolute rule prohibiting Judges from testifying in criminal proceedings regarding collateral matters over which they have presided.*fn8 See United States v. Frankenthal, 582 F.2d 1102, 1108 (7th Cir. 1978). But some courts, as well as the Code of Judicial Conduct, have expressed the concern that a jury might misunderstand a Judge's testimony under these circumstances as an official testimonial and, thus, the testimony would unfairly advance the interests of a party. See Frankenthal, 582 F.2d at 1108; Canon 2 of the Code of Judicial Conduct.*fn9

To avoid this misunderstanding, a Judge should testify as to matters upon which he or she has acted in a judicial capacity only when there is no other reasonably available way to prove the facts sought to be established. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 20, 482 P.2d 775 (1975); Frankenthal, 582 F.2d at 1108. When it is necessary for a Judge to testify, the trial court should strictly limit the testimony to factual matters of which the Judge has personal knowledge; a Judge should not testify as to his own assessment of another witness's credibility. Schultz v. Thomas, 832 F.2d 108, 110 (7th Cir. 1987); Frankenthal, 582 F.2d at 1108.

Here, the State deferentially questioned Judge Lodge, who was allowed to provide detailed explanations of his decisions and various points of law. Further, the record of Stein's previous legal proceedings, as well as the testimony of other witnesses, established much of the substance of Judge Lodge's testimony. Thus, much of Judge Lodge's testimony was not strictly necessary and it had the potential to unfairly influence the jury. See Carroll, 79 Wn.2d at 20; Frankenthal, 582 F.2d at 1108.

But Stein waived any error by failing to object either before or during trial. In re Dependency of Penelope B., 104 Wn.2d 643, 659, 709 P.2d 1185 (1985) (a jury can properly consider testimony admitted without objection); State v. Jones, 70 Wn.2d 591, 597, 424 P.2d 665 (1967) (testimony admitted without objection is not reviewable on appeal); ER 103(a)(1). Further, Stein himself called Judge James Ladley as a defense witness. Nonetheless, we caution the State and trial court on remand to consider carefully the need for and appropriate limits of such testimony.

VII. CUMULATIVE EVIDENTIARY ERRORS

Stein contends that cumulative evidentiary errors denied him a fair trial. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994) (cumulative effect of trial court errors may require reversal even if each error on its own is harmless). Non-constitutional error requires reversal only if, within reasonable probabilities, it materially affected the outcome of the trial. Russell, 125 Wn.2d at 94. But a constitutional error requires reversal unless we are satisfied beyond a reasonable doubt that any reasonable jury would have reached the same result absent the error. Russell, 125 Wn.2d at 94.

A. Evidence of Prior Bad Acts

Before trial, Stein made 49 different motions in limine seeking to exclude: (1) references to his father's guardianship; (2) evidence of an alleged plot to blow up the Clark County Courthouse and/or to kidnap and murder a Judge; (3) any affidavits or statements made by his father before his death; (4) references to Stein's violation of a restraining order or the fact that his father was taken into protective custody; (5) Lund's former testimony; and (6) references to Stein's involvement in uncharged criminal acts. Stein claimed inadmissibility based on ER 402, 403, 404, and/or 804(b)(1).

The trial court denied the motions but reserved its final ruling for trial when Stein could make more specific objections. We review a trial court's decision to admit or exclude evidence for an abuse of discretion, which is discretion that is manifestly unreasonable or based on untenable grounds. State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997), cert. denied, 118 S. Ct. 1193 (1998).

1. Guardianship proceedings

Stein contends that the cumulative testimony about the guardianship proceedings was "unnecessary and prejudicial." The State responds that Stein failed to renew his objections during trial and, thus, did not preserve this issue for appeal. It also argues that "the evidence, relating to {Stein's} efforts to control his father's financial affairs, bore directly on his motive."

A trial court properly admits evidence that is relevant and necessary for purposes other than proving character or propensity even though the evidence might be inadmissible merely to show prior bad acts. Stenson, 132 Wn.2d at 708. The evidence here that Stein took advantage of his helpless father was admitted to show Stein's motive for seeking help in murdering Lund and Hall. Thus, the trial court did not err in admitting it under ER 404(b).*fn10

2. Plot to blow up courthouse and kill Judges

Both Judge Lodge and Richard Bailey testified about an alleged plot to blow up the courthouse and kill Judges. Stein contends that this testimony was "overwhelmingly prejudicial and inflammatory" because the alleged acts were so similar to the charged conduct. The State contends that this testimony was "not within the purview of ER 404(b)" because it "related to conversations between charged co-conspirators during the life of the conspiracy."

We agree with the State. The evidence was probative of Stein's involvement in the charged conspiracy to commit murder and, thus, its admission does not violate ER 404(b). See United States v. Aranda, 963 F.2d 211, 213-15 (8th Cir. 1992). Although the evidence was prejudicial, the danger of unfair prejudice did not substantially outweigh its significant probative value. ER 403.*fn11 Thus, the trial court did not abuse its discretion. Stenson, 132 Wn.2d at 709.

3. Former testimony of Nicholas Stein and Thelma Lund

In August 1983, Hall brought a civil action against Stein seeking to set aside an assignment of a real estate contract between Stein and his father. Nicholas Stein testified that he had assigned a real estate contract to his son, but immediately afterwards had second thoughts and asked his son to voluntarily rescind it. Lund testified that when Nicholas made the assignment he was on four different medications, his physical condition was not good, and he was having trouble with seizures. The trial court admitted Lund's and Nicholas Stein's former testimony during Stein's criminal trial.

Without pointing to any specific testimony, Stein asserts that Nicholas Stein's and Lund's former testimony was not relevant to prove the criminal charges and was unfairly prejudicial. We disagree. The testimony was relevant to explain why there was a limited guardianship for Nicholas Stein and to show the relationship between the guardianship conflicts and Stein's motive to have Hall murdered. Thus, the trial court did not err in ruling that the testimony's significant probative value was not substantially outweighed by the danger of unfair prejudice.

Stein also contends that Lund's and Nicholas Stein's former testimony was inadmissible under ER 804(b)(1) because it occurred during an unrelated civil case and, thus, he did not have an "opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." ER 804(b)(1). Stein further contends that this erroneously admitted testimony "necessarily violated his right to confrontation."*fn12

Under ER 804(b)(1), a witness's former testimony is not excluded by the hearsay rule if such person is unavailable to testify and "if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." ER 804(b)(1); State v. Whisler, 61 Wn. App. 126, 132-34, 810 P.2d 540 (1991). The motive to cross-examine need only be "similar" not identical. Murray v. Toyota Motor Distrib., Inc., 664 F.2d 1377, 1379 (9th Cir. 1982). The focus is upon the motive underlying the cross-examination rather than the actual exchange that took place. United States v. McClellan, 868 F.2d 210, 215 (7th Cir. 1989).

Here, there is no question that Lund and Nicholas Stein were unavailable or that Stein had the opportunity to cross-examine them in the civil suit. See Ohio v. Roberts, 448 U.S. 56, 57, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) (change of defense attorney between preliminary hearing and trial did not create situation in which admission of witness's former testimony at trial violated defendant's right to confrontation). Thus, the critical issue is whether Stein had a sufficiently similar motive.

In the civil case, Stein's right to property valued at over one million dollars was at stake. The testimony of Lund and Nicholas Stein undermined Stein's presumed defense that Nicholas was competent to sign the deed and assignment and that he did so voluntarily and without undue influence. Given the adversarial nature of the civil suit, Stein had sufficiently similar motive to cross-examine Lund and Nicholas Stein. See McClellan, 868 F.2d at 215 (criminal defendant charged with fraudulent transfer of assets had similar motive during bankruptcy proceedings to cross-examine his subsequently disabled ex-wife where several million dollars of debt were at issue and her testimony undermined his credibility). Thus, the trial court did not abuse its discretion. Stenson, 132 Wn.2d at 709.

4. Domestic Violence Protective Order

Judge Ladley testified regarding the issuance of a domestic violence protective order against Jack Stein on behalf of Nicholas Stein. Ned Hall testified that he sought and obtained such an order and that, pursuant to the order, he coordinated the transportation of Nicholas Stein from Portland to Vancouver. Neither Judge Ladley nor Hall testified that Stein violated the protective order or that Nicholas Stein was taken into protective custody. Thus, their testimony did not fall within the scope of Stein's motions in limine.

Further, Judge Ladley was called as a defense witness, and the challenged portion of Hall's testimony that Stein challenges occurred during defense counsel's cross-examination. Thus, Stein cannot now complain that this testimony was unfairly prejudicial. See State v. Marks, 90 Wn. App. 980, 986, 955 P.2d 406 (no party can complain of an error it induced the court to make), review denied, 136 Wn.2d 1024 (1998).

B. Improper Vouching for a Witness During Closing Argument In closing, the prosecutor made the following argument:

Let's talk about the big lie in this case, and you were subjected to a great big lie. That is, both Norberg and Bailey say the other killed Thelma Lund. One of those persons and maybe both of them are giving you a big lie about who killed Thelma Lund. It can't be both ways. Norberg can't be telling the truth and Bailey telling the truth about who killed her. . . . Neither one of them will admit to being the coward that strangled that elderly grandmother. What we have here . . . from your common sense and experience you're free to conclude is the instruction of self preservation popping {sic} up. Eddie Denny, who was in prison, contacted the police. Unusual occurrence there, you might conclude, when he heard about how Mrs. Lund had died. He heard it through a family member. Mike Norberg testified he expected to be killed in prison. I'd suggest to you that you could find very reasonably that Mike Norberg and Richard Bailey are each denying that they personally killed Thelma Lund because of fear that they might get just what she got when they go to prison. And that's a powerful motive there.

(Emphasis added.) Defense counsel did not object during closing argument. Now Stein contends that this argument constituted prejudicial prosecutorial misconduct because it was premised on facts not in evidence.

Failure to object to a prosecutor's allegedly improper comment constitutes waiver of error unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 118 S. Ct. 1192 (1998). We review a prosecutor's allegedly improper argument in the context of the whole argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Brown, 132 Wn.2d at 561. "In closing argument a prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence." State v. Gentry, 125 Wn.2d 570, 641, 888 P.2d 1105 (1995).

Here, the prosecutor's argument was a reasonable inference from the evidence. Gentry, 125 Wn.2d at 641. Colleagues of Norberg and Bailey came forward from prison to provide additional information after they heard what Norberg and Bailey did to Thelma Lund. Norberg testified that he expected to be killed in prison. Based on this evidence, it was reasonable to "suggest" to the jury that they reasonably "could find" that Norberg and/or Bailey lied about their direct involvement in Lund's death out of fear of the consequences in prison. Thus, Stein has waived his claim that the argument constituted prejudicial prosecutorial misconduct. Brown, 132 Wn.2d at 561.

C. State's Comment in Front of JuryStein contends that the trial court abused its discretion by denying his motion for a mistrial based upon prosecutorial misconduct. His complaint arises out of the State's redirect examination of a witness. The prosecutor asked: "Do you know yourself whether or not people from the First Independent Bank were told by Jack Stein that he needed $300,000 to buy a $150,000 house?" Defense counsel objected and there was an exchange of comments by counsel, including a statement by the prosecutor: "I object to {defense counsel} telling the jury what I know. If {defense counsel} -".

Outside the presence of the jury, defense counsel sought a mistrial, alleging that the prosecutor had implied to the jury that "if the jury knew what he knew we wouldn't even need a trial." Defense counsel also sought permission to call the prosecutor to testify as to exactly what he did say. The court denied defense counsel's motions but admonished the attorneys "not to assume facts and not to ask improper questions." In addition, the court gave the following curative instruction to the jury:

Ladies and gentlemen of the jury, when we started a couple weeks ago, I read you an instruction. I'll reread that part of the instruction. And the lawyers{'} remarks, statements, and arguments are intended to help you understand the evidence and apply the evidence. They are not evidence, however, and you should disregard any remarks, statements, or arguments which are not supported by the evidence or by the law as I give you. I stated before the evidence is what the witnesses say and what exhibits are admitted.

The next day the defense filed a newspaper article that quoted the State as saying, "{w}ell, your honor, . . . if I'm allowed to tell the jury what I know . . . ." The court admitted the newspaper article as an exhibit to show what was said, but stated: "{a}s far as I'm concerned, it doesn't matter."

If the prosecutor made the comment reported in the newspaper article, it was improper. See State v. Alexander, 64 Wn. App. 147, 155, 822 P.2d 1250 (1992) (improper to leave the jury with impression that a witness knows information favorable to the State which, but for the court's rulings, would have been revealed). But we assume that the jury followed the court's curative instruction. State v. Krause, 82 Wn. App. 688, 697, 919 P.2d 123 (1996). Thus, we conclude that this alleged error, within reasonable probabilities, did not materially affect the trial's outcome. State v. Russell, 125 Wn.2d 24, 94, 882 P.2d 747 (1994).

VIII. SAME CRIMINAL CONDUCT FOR SENTENCING PURPOSES

Because we reverse and remand, we need not address Stein's contention that the trial court improperly imposed consecutive sentences. Nonetheless, we briefly note that we agree with the State's interpretation of the "separate and distinct criminal conduct" language in RCW 9.94A.400(1)(b). The court properly looked to the conduct of the principals rather than to Stein's acts. State v. Graham, 68 Wn. App. 878, 881, 846 P.2d 578 (1993). The liability of an accomplice to a crime is the same as that of the principal.

IX. SPEEDY TRIAL RIGHTS

The trial date in this case was rescheduled six times. The relevant dates and reasons for each continuance are set forth below:

Days Elapsed Between

CrR 3.3(d) CrR 3.3(g) Tolling Tolling Date & Next TRIAL DATE REASON FOR DELAY Extension Excl. Period Date Scheduled Trial Date

10/3/88 Disqualification of entire 30 days

9/27/88 27 days*

Clark Co. bench on Stein's

motion for recusal

10/24/88 Disqualification of Judge 30 days 2

days 10/6/88 32 days*

Quinn on Stein's affidavit of prejudice; Appt. of Judge Heavey; Stein "conditionally" waives speedy trial**

11/7/88 Stein's mot. for continuance 14 days

11/7/88 14 days and waiver of speedy trial

11/21/88 MISTRIAL 60 days 12/15/88

60 days

2/13/89 Stein's mot. for continuance

84 days 2/13/88 84 days

and waiver of speedy trial

5/8/89 Defense counsel's motion for 28 days

5/8/89 28 days*

continuance over Stein's objection

6/5/89 Trial begins and continues to completion.

*Indicates delay that Stein contends was a violation of his speedy trial rights.

**The following language was added to Stein's waiver of speedy trial rights, signed on October 26, 1988: "Note: However, that if the Prosecutor is deceiving me and the Court again, as he as done on SEVERAL previous occasions, this waiver to November 7, 1988 is VOID." Signed: Jack Stein

A. Continuance of the October 3, 1988 Trial Date

Stein contends that the prosecutor sought to delay his October 3 trial date to obtain additional time to extort a confession from Norberg and Bailey and to rehearse the false testimony of witnesses. Because of the prosecutor's alleged misconduct, Stein contends that CrR 3.3(d)(6)*fn13 should not have been applied to extend the time for trial.

Pro se litigants are bound by the same rules of procedures and substantive law as attorneys. State v. Smith, 104 Wn.2d 497, 508, 707 P.2d 1306 (1985). RAP 10.3(a)(4) provides that "{r}eference to the record must be included for each factual statement." We find no reference to the record for Stein's allegation about the prosecutor. Thus, we do not address it.

B. Continuance of the October 24, 1988 Trial Date

Similarly, Stein fails to support his contentions that defense counsel pressured him to sign an affidavit of prejudice against a Judge without advising him that such motion would further delay trial and that the prosecutor and the court coerced him to sign a conditional waiver. Thus, we do not address this contention.

C. Continuance of the May 8, 1989 Trial Date

Stein contends that his defense counsel's motion for a continuance was not valid because (1) Stein had not retained that individual as defense counsel, and (2) Stein did not consent to waiving his speedy trial rights. The State contends that the trial court properly exercised its authority to continue the trial date beyond the constraints of CrR 3.3 because doing so served Stein's constitutional right to an adequately prepared defense.

Trial in the time allotted by CrR 3.3 is not constitutionally required and, thus, the trial court has the discretion to grant continuances. State v. Cauthron, 120 Wn.2d 879, 910, 846 P.2d 502 (1993). Allowing defense counsel the opportunity to prepare for trial, even over the express objections of a defendant, is a proper exercise of the court's discretion. State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995). In reviewing this claim, we consider the "'{l}ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" In re Personal Restraint of Benn, 134 Wn.2d 868, 920, 952 P.2d 116 (1998) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).

The continuance here was for 28 days and was for the purpose of protecting Stein's right to effective assistance of counsel. Stein has not demonstrated any prejudice resulting from the delay and Stein did not file a motion to remove defense counsel until after the filing of the motion for continuance. Thus, we find no violation of his speedy trial rights.

X. RECANTATION EVIDENCE

Following Stein's conviction, Lund's estate and the State of Washington brought a wrongful death and criminal profiteering action against Stein and others. Apparently in conjunction with this civil lawsuit, Stein submitted two recantation affidavits of Bailey signed in 1991 and a purported affidavit of Norberg signed in 1990. The latter is actually Stein's affidavit, followed by Norberg's statement that Stein's affidavit "accurately reflects {their} conversations."

Stein claims that he "filed" these affidavits in his criminal case and asked his criminal appellate attorney to present them in a motion for new trial, but that his attorney refused.*fn14 Stein further claims that this recantation evidence constitutes grounds for a new trial or reversal. The State contends that the Norberg affidavit is legally insufficient to support a relief from personal restraint. It also argues that because a civil jury rejected Bailey's and Norberg's recantation testimony, Stein cannot prove that the recanting affidavits will "probably change the result of a new criminal trial.*fn15 Stein cannot obtain review on direct appeal because he did not file a timely motion for new trial based on newly discovered evidence pursuant to CrR 7.8(b)(2).*fn16 But as Stein raises the identical issue in his Petition for Habeas Relief, in the interests of Justice, we consider this issue pursuant to RAP 16.4(c)(3);*fn17 State v. Landon, 69 Wn. App. 83, 89-90, 848 P.2d 724 (1993).

If a defendant is convicted solely on the basis of a now recanting witness's testimony, and the trial court determines such recantation is reliable, the trial court must grant the defendant's motion for new trial. State v. Macon, 128 Wn.2d 784, 804, 911 P.2d 1004 (1996) (citing State v. Rolax, 84 Wn.2d 836, 838, 529 P.2d 1078 (1974), overruled on other grounds, Wright v. Morris, 85 Wn.2d 899, 540 P.2d 893 (1975)); State v. Smith, 80 Wn. App. 462, 470, 909 P.2d 1335 (1996), rev'd on other grounds, 131 Wn.2d 258, 930 P.2d 917 (1997). But where independent evidence corroborates the recanting witness's original testimony, the ruling on the motion for a new trial lies within the sound discretion of the trial court. Smith, 80 Wn. App. at 470.

In making its ruling, the trial court must first determine whether the recantation is reliable in light of all the circumstances, including the witness's possible reasons for recanting; relevant facts at the time of recantation; and the passage of time between the original testimony and the recantation. Macon, 128 Wn.2d at 802-04. If the court finds the recantation evidence to be reliable, the defendant must then prove that the evidence (1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. If any one of these factors is absent, the court may deny a new trial. Macon, 128 Wn.2d at 803-04.

It is unlikely that a trial court would find Norberg's and Bailey's affidavits to be reliable, given all the circumstances. Norberg claims that during his incarceration, he was secretly being given the drug Vistaril, which causes a loss of memory and distorted reality and that, consequently, "his mind accepted" police suggestions. He now contends that "Bailey and Smith were simply burglars with a drug habit." Bailey claims that "{a}ll {he} was doing out at any night was looking for a {sic} easy place to steal some things from, for my drug habit." Further, the affidavits are inconsistent with the evidence of the Naptha soap-gasoline bottles that Hall found in his yard; three visits by Bailey and his associates to Hall's home in one month, without stealing anything; and the encounters with Hall on two of the alleged burglary