State of Washington v. Christopher Michael Foley ( 2013 )

FILED
JULY 16,2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30219-9-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
CHRISTOPHER M. FOLEY, )
)
Appellant. )
KULIK, J. - Christopher Foley was charged with second degree murder of Russell
Ray. Based on the State's theory of the crime, Mr. Foley killed Mr. Ray by hitting him
with a 2" x 10" board during a dispute over ownership of tools. A jury found Mr. Foley
guilty of the lesser included offense of first degree manslaughter. Mr. Foley appeals. He
asserts that the trial court made evidentiary errors, prosecutorial misconduct occurred, and
assigns error to the court's decision to instruct the jury on the lesser included offense. He
also assigns numerous errors in his statement of additional grounds for review. We
conclude that the trial court did not err. We affirm the conviction.
No.30219-9-III
State v. Foley
FACTS
Christopher Foley and Russell Ray were brothers-in-law. Mr. Foley's wife, Karen
Foley, and Mr. Ray's wife, Christine Ray, are sisters. The couples lived next to each
other as well as Ms. Foley's and Ms. Ray's parents, Bob and Connie Collignon, in
Ellensburg, Washington. The brothers-in-law were business partners in a construction
company until the company stopped being profitable and dissolved. Mr. Foley's and Mr.
Ray's relationship deteriorated after the dissolution. The men disagreed over the division
of the tools that belonged to the company. Mr. Ray reportedly felt he had been cheated.
Mr. Ray disappeared on June 21, 2010, when most of his family was attending a
wedding in California. However, Mr. Foley had returned home on the day of the
disappearance. Neighbors and police searched for Mr. Ray or clues to his disappearance,
but found nothing significant.
On June 27, a day after Ms. Ray returned, she discovered blood on the fence in her
backyard. Ms. Ray called police who discovered blood in several locations outside of the
home. With the help of search and rescue volunteers, the police found a 2" x 10" board in
the bam covered in blood.
Over the next two days, the Washington State Patrol and the Kittitas County
Sherriffs Office collected evidence from the scene. Forensic scientist Brianna Peterson
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described the scene as a "blood letting." Report of Proceedings (RP) at 1167. On the
north side of the property, there was red-brown staining across the length of the property
line to the residence and on the residence. There was also blood and hair on tree branches
in this area. A significant amount of blood was also located in the immediate backyard by
the trampoline. "Saturation" stains and hair were visible on the nearby railroad ties. RP
at 1108. Spatters of blood were observed in the grass to the west of the railroad ties.
Ms. Peterson also examined the bloody board found in the barn. Ms. Peterson
testified that the four sides of the board had blood transfer marks and blood spatter
patterns.
The following March, Mr. Ray's body was found in a ravine off the Vantage
Highway. The Kittitas County prosecutor charged Mr. Foley with the second degree
murder of Mr. Ray. The amended information alleged that the crime occurred between
June 21 and June 22. The State relied on Mr. Foley's and Mr. Ray's long-standing feud
over the tools and the failure of the business as motive for the crime.
PROCEDURAL HISTORY
Evidence o(Past Acts. The State relied on circumstantial evidence in its case
against Mr. Foley. To help show motive for the crime, the State introduced three prior
altercations between Mr. Ray and Mr. Foley that occurred over the tools.
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State v. Foley
The first instance involved a physical altercation between Mr. Foley and Mr. Ray
at ajob site in May 2009. Mr. Foley allegedly punched Mr. Ray after the two argued
about the tools. Mr. Collignon and Brink Evans witnessed the altercation. In addition,
Ms. Ray and Ms. Collignon were told about the incident by Mr. Ray. Ms. Ray
photographed the injury.
The second instance involved a verbal exchange in May 2009. The tools were
again the subject of the altercation. Mr. Foley described this incident to detectives during
his first interview following Mr. Ray's disappearance. Ms. Collignon was told of the
incident by Mr. Ray. Mr. Ray perceived this incident as an ambush because Mr. Foley
had delayed leaving for work in order to confront Mr. Ray about the tools.
The last instance involved a physical altercation in May 2010. Mr. Foley caught
Mr. Ray looking for tools. Mr. Foley allegedly hit Mr. Ray with a 4" x 4" piece of wood.
No witnesses were present, but Mr. Ray told details of the incident to his brother, Mark
Ray, and to a co-worker, Mark Emmert. Ms. Ray, Ms. Collignon, and Jory Ray observed
an injury to Mr. Ray that was consistent with the described incident. Additionally, a
photograph taken shortly after the incident by the Department of Licensing demonstrates
an injury consistent with the described incident. Mr. Foley denied he participated in this
incident.
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State v. Foley
Mr. Foley argued that the three incidents were not admissible under ER 404(b)
because they were propensity evidence. Mr. Foley also contended that the State could not
meet its burden to prove that the incident regarding the 4" x 4" board occurred.
The trial court found the incidents were sufficiently proved and admissible under
ER 404(b) as evidence of motive, opportunity, and lack of mistake or accident. The court
also found the evidence to be relevant and not unfairly prejudicial.
Recorded Interview. The State sought to present a video recording of a police
interview of Mr. Foley. Mr. Foley was concerned that the State anticipated fast
forwarding or muting the sound through portions of the video that were excluded or
irrelevant. Mr. Foley requested that if the State were to present the video, it needed to
redact those portions. In response, the State said that the system supporting the video
evidence did not allow for editing, but the State would work on a solution. In the
alternative, the State said it would submit a transcript to the jury, excluding the redacted
material. The court agreed. The video was discussed again and the State proposed to
play the interview in its entirety for the sake of completeness. No decision was made
during this discussion.
During the trial, when the State questioned Detective Greg Bannister about the
recorded interview, Mr. Foley objected, claiming that the State's presentation of the
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State v. Foley
interview eviden'ce was awkward and confusing. In response, the State detailed the
problems with presenting the evidence of the interview. The State explained that playing
portions of the recorded interview was not a viable option because the video could not be
physically altered and portions were inaudible. Also, relying solely on the transcripts of
the video created problems because portions of the interview were transcribed as
inaudible and the jury was entitled to hear that inaudible evidence. However, asking the
detective about the interview would result in leading questions and hearsay objections.
The State said it would be best to admit the transcript and let Detective Bannister answer
the State's questions.
The trial court decided that the transcript could not be introduced into evidence in
the manner the State suggested. The State requested that the court allow the video to be
played in its entirety, skipping over the portions that were impermissible, such as the
reference to the polygraph, and stopping when Mr. Foley objected. The State suggested
that if any inadmissible evidence came in by error, it be cured by a jury instruction. Mr.
Foley complained that he would suffer incredible prejudice from the inadmissible
evidence. Mr. Foley recognized the State's technical issues, but acknowledged that it was
the State's burden to present evidence so it was error free, and such a presentation was
possible.
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State v. Foley
The court allowed the State to play the entire video and skip over the
impermissible portions. The court warned the State that a mistrial would occur if
inadmissible evidence was presented. The court determined that the video would not go
back to the jury, but would be treated more like a witness statement.
As the State set up the video, Mr. Foley informed the trial court that he was
concerned that the State was failing to skip the inadmissible part of the interview where
Mr. Foley was advised of his rights. The court reminded the State that it had required the
State to come up with an easy and workable way to present the video interview. The
State agreed to make a written record of the presentation to document what portions of
the video interview were played to the jury and to exclude the portions of the video that
were prejudicial or not relevant.
The court expressed that most of the video contained irrelevant material and that
playing the video would confuse the jury. However,the court reluctantly allowed the
State to play the video for the purpose of impeachment of Mr. Foley. After the court
played the video, the court criticized the State for wasting everyone's time with the
lengthy video.
In the video, Deputy Darren Higashiyama asked Mr. Foley where Ms. Foley
thought Mr. Ray might have gone. Mr. Foley replied that Ms. Foley thought Mr. Ray was
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State v. Foley
dead. Later in the interview, Detective Higashiyama suggested that some members of Mr.
Foley's family were accusing Mr. Foley because of their relationship. However,
Detective Higashiyama assured Mr. Foley that Detective Higashiyama was not blaming
anyone because he did not know the offender.
This portion of the video was not skipped even though the trial court previously
granted Mr. Foley's motion in limine to exclude any evidence pertaining to an opinion of
Mr. Foley's guilt.
The video was brought up once more before the jury was instructed. Mr. Foley
sought to have the court instruct the jury to disregard the entire video. However, the trial
court indicated that it would instruct the jury to disregard portions of the video, if
requested. Mr. Foley responded that there were many statements from other people that
should not have been allowed, including the statement from the detective that a witness
formed an opinion of guilt. The State argued that all statements provided context for the
evidence. The State also claimed that it did not remember the language of the statement
to know if it was an opinion of guilt.
Lesser Offense. During the instructions conference, Mr. Foley requested that the
court not give instructions for first degree or second degree manslaughter, which are
lesser included offenses of second degree murder. The State requested the instructions,
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State v. Foley
arguing that the instructions were supported by the evidence. The trial court agreed with
the State to include the instructions for the lesser included offenses.
A jury found Mr. Foley guilty of first degree manslaughter. Following the verdict,
Mr. Foley filed a motion for a new trial on the grounds ofprosecutorial misconduct. Mr.
Foley argued that the prosecutor committed misconduct by failing to redact the portion of
the video interview where detectives asserted that Ms. Ray and Ms. Foley did not believe
Mr. Foley's written version of events. The trial court determined that there was no basis
for a new trial.
ANALYSIS
Evidence ora Prior Altercation. We review a trial court's ruling on ER 404(b)
evidence for an abuse of discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 PJd
786 (2007). An abuse of discretion occurs if the court's decision is manifestly
unreasonable or based on untenable grounds or untenable reasons. State v. Dixon, 159
Wn.2d 65,75-76, 147 PJd 991 (2006) (quoting State v. Rohrich, 149 Wn.2d 647,654,71
PJd 638 (2003».
ER 404(b) forbids admitting evidence of a person's other crimes, wrongs, or acts
to prove a person's character in order to show that the person acted in conformity with the
prior bad acts. A defendant must be tried on evidence relevant to the crime charged, and
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State v. Foley
not convicted because the jury believes he is a bad person who has done wrong in the
past. Foxhoven, 161 Wn.2d at 175.
However, ER 404(b) allows evidence of such acts if admitted for other purposes,
such as to establish motive, opportunity, intent, identity, and the absence of mistake or
accident.
"Before admitting ER 404(b) evidence, a trial court 'must (1) find by a
preponderance of the evidence that the misconduct occurred, (2) identifY the purpose for
which the evidence is sought to be introduced, (3) determine whether the evidence is
relevant to prove an element of the crime charged, and (4) weigh the probative value
against the prejudical effect.'" Foxhoven, 161 Wn.2d at 175 (quoting State v. Vy Thang,
145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). The trial court must conduct this analysis on
the record. Id.Courts presume that evidence of a defendant's past acts is inadmissible; any doubts
regarding admittance are resolved in favor of the defendant. State v. Fuller, 169 Wn.
App. 797, 829,282 P.3d 126 (2012), review denied, 176 Wn.2d 1006 (2013).
Evidence of previous quarrels and assaults against the same victim is admissible
when motive is relevant to the current offense. State v. Powell, 126 Wn.2d 244, 260, 893
P.2d 615 (1995).
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State v. Foley
We decide whether the evidence of other bad acts is more probative than
prejudicial by considering the record as a whole and determining whether the trial court
articulated the balancing of these two aspects. Id. at 264-65. A trial court has broad
discretion in balancing the probative value against the prejudicial effect. State v. Stenson,
132 Wn.2d 668, 702, 940 P.2d 1239 (1997).
Mr. Foley challenges the trial court's decision to allow the prior altercation where
Mr. Foley allegedly hit Mr. Ray with a 4" x 4" piece of wood. Mr. Foley contends that
this evidence was not supported by a preponderance or evidence because the State relied
on uncorroborated hearsay testimony from Mark Ray as proof of the prior act. Mr. Foley
also contends that the evidence's potential for prejudice outweighs its probative value
because the incident was too similar to the State's theory of how Mr. Foley was killed,
and the State had other evidence to establish Mr. Foley's and Mr. Ray's disagreement
over tools.
At trial, Mark Ray testified that he spoke with his brother about the
4" X 4" incident. Mr. Ray told his brother that he was in Mr. Foley's shop to take tools
when Mr. Foley hit Mr. Ray with a 4" x 4" board. Mr. Emmert also testified that Mr.
Foley told him about the incident. According to Mr. Emmert, Mr. Foley went home to get
his boots when he heard someone in his shop. He picked up a 4" x 4" board and hit the
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State v. Foley
. person, who turned out to be Mr. Ray. The court allowed this hearsay testimony as
statements against interest.
The trial court did not abuse its discretion by allowing the hearsay testimony of
Mark Ray to prove the 4" x 4" incident. The statements by Mr. Ray were allowed under
the ER 804(b)(3) statement against interest exception to the hearsay rule. Inculpatory
hearsay statements against a penal interest are admissible under ER 804(b)(3) if the
declarant is unavailable, the statement subjects the declarant to criminal liability to the
extent that a reasonable person in the same position as the declarant would not have made
the statement unless he believed it was true, and corroborating circumstances clearly
indicate the trustworthiness of the statement. State v. Valladares, 99 Wn.2d 663,668,
664 P.2d 508 (1983).
First, no question is raised in regard to Mr. Ray's unavailability to testify. Also,
Mr. Ray's statements subjected him to criminal liability for burglarizing Mr. Foley's
property. Finally, Mark Ray's statement about the incident was corroborated by Mr.
Emmert, who also testified that the incident occurred. Additional support came from
other witnesses who testified to seeing an injury on Mr. Ray that was consistent with the
incident. Mr. Ray's Department of Licensing photograph taken a few days after the
incident also shows the injury. While Mr. Foley denied making the statement to Mr.
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State v. Foley
Emmert, there is no reason to believe the statements from the other witnesses are not
credible. Both Mark Ray and Mr. Emmert gave similar testimony, and there is no
evidence that the men knew each other.
We conclude that the trial court did not abuse its discretion by admitting the prior
bad act. The State proved by a preponderance of the evidence that the incident occurred.
Also, the trial court considered the incident involving Mr. Foley and Mr. Ray relevant to
establish motive. The State's motive was based on Mr. Foley's and Mr. Ray's
longstanding argument over the tools, and this incident provided evidence of that motive.
Furthermore, the court weighed the effects of the evidence and determined that the
probative value was significant as this evidence strongly supports the State's motive that
Mr. Foley killed Mr. Ray over the conflict surrounding the dissolution of the business and
the disposition of the tools. The event happened in Mr. Foley's shop while Mr. Ray was
looking for the tools. Mr. Foley was upset and argued with Mr. Ray over the tools.
While the State presented other evidence that supports motive, the May 2010 incident
involving a 4" x 4" board shows the depth of the disagreement between the men. The
record shows that the trial court carefully balanced the probative value of the prior acts
against the danger of unfair prejudice. The court did not abuse its discretion by admitting
evidence of a prior altercation between Mr. Foley and Mr. Ray.
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State v. Foley
Jury Instructions. Alleged errors of law in a trial court's instructions are legal
questions that we review de novo. State v. Porter, 150 Wn.2d 732, 735, 82 P.3d 234(2004). When detennining whether sufficient evidence supported a jury instruction on a
lesser included offense, the court reviews the supporting evidence in the light most
favorable to the party requesting the instruction. State v. Fernandez-Medina, 141 Wn.2d
448,455-56,6 P.3d 1150 (2000).
An instruction on a lesser included offense is warranted when '" [t]irst, each of the
elements of the lesser offense must be a necessary element of the offense charged[, and,]
[s]econd, the evidence in the case must support an inference that the lesser crime was
committed.'" Id. at 454 (alterations in original) (quoting State v. Workman, 90 Wn.2d
443,447-48, 584 P.2d 382 (1978)).
The second prong of the lesser included offense test requires a factual showing
supporting the lesser crime that must be "more particularized than that required for other
jury instructions." Fernandez-Medina, 141 Wn.2d at 455. "[T]he evidence must raise an
inference that only the lesser included/inferior degree offense was committed to the
exclusion of the charged offense." Id. "If the evidence would pennit a jury to rationally
find a defendant guilty of the lesser offense and acquit him of the greater, a lesser
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No. 302 I 9-9-III
State v. Foley
included offense instruction should be given." State v. Warden, 133 Wn.2d 559, 563,947
P.2d 708 (1997).
First and second degree manslaughter are lesser included offenses of intentional
murder, and such instruction should be given to the jury when supported by the facts.
State v. Berlin, 133 Wn.2d 541, 543, 947 P.2d 700 (1997).
First degree manslaughter is committed when a person recklessly causes the death
of another person. RCW 9A.32.060(l)(a). Second degree manslaughter is committed
when a person, with criminal negligence, causes the death of another person .
. RCW 9A.32.070(1).
The factual prong is in dispute here. We conclude that the trial court did not err in
giving the lesser included instructions of first and second degree manslaughter. The
State's motive for the crime is the dispute over the division of tools. Evidence of the
prior altercations established that the men were very angry over the tools, and both
attempted to reclaim the tools from the other. The killing of Mr. Ray could have resulted
from another physical altercation that escalated to the point of a reckless killing.
Additionally, the piece of wood used in Mr. Ray's murder is not the type that is brought to
intentionally kill someone. Instead, the piece of wood suggests that it was grabbed in the
heat of an argument. In sum, the circumstantial evidence suggests that Mr. Foley and Mr.
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No.302l9-9-III
State v. Foley
Ray were involved in a spontaneous altercation after Mr. Foley entered M!. Ray's
property looking for tools. The altercation became physical, Mr. Foley hit Mr. Ray with a
piece of wood lying in the bam, and Mr. Ray was recklessly killed as a result.
Instructing the jury on the lesser included offenses of first and second degree
manslaughter was not error.
Prosecutorial Misconduct. "The granting or denial of a new trial is a matter
primarily within the discretion of the trial court and we will not disturb its ruling unless
there is a clear abuse of discretion." State v. Wilson, 71 Wn.2d 895, 899,431 P.2d 221(1967). A trial court's decision regarding improper prosecutorial argument is reviewed
for an abuse of discretion. State v. Cheatam, 150 Wn.2d 626, 652, 81 P .3d 830 (2003).
A prosecutor is a quasi-judicial officer who has a duty to ensure a defendant in a
criminal prosecution is given a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111
P.3d 899 (2005).
A defendant claiming prosecutorial misconduct who has preserved the issues by
objection bears the burden of establishing the impropriety of the prosecuting attorney's
actions and their prejudicial effect. State v. McKenzie, 157 Wn.2d 44,52, 134 P.3d 221(2006) (quoting State v. Brown, 132 Wn.2d 529, 561,940 P.2d 546 (1997)). A defendant
establishes prejudice if there is a substantial likelihood that the misconduct affected the
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State v. Foley
jury's verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (quoting State
v. Pirtle, 127 Wn.2d 628,672,904 P.2d 245 (1995».
Even with no objection, reversal is still required when the misconduct is so
flagrant and ill-intentioned it causes enduring prejudice that could not have been cured by
instruction. Boehning, 127 Wn. App. at 518. It is misconduct for a prosecutor to
flagrantly violate a court order regarding the admissibility of evidence. State v. Smith,
189 Wash. 422, 428-29, 65 P.2d 1075 (1937).
Expressions of personal belief as to the guilt of the defendant are clearly
inappropriate for opinion testimony in criminal trials. State v. Montgomery, 163 Wn.2d
577,591, 183 P.3d 267 (2008). Both direct and implied opinions of guilt are improper.
Id. at 594.
Mr. Foley contends that the prosecutor committed misconduct and deprived
Mr. Foley of a fair trial by offering as evidence the unredacted video interview that
included witness opinion on Mr. Foley's guilt. Mr. Foley contends that the
prosecutor knew the video contained objectionable material, but chose to play it
anyway. While Mr. Foley objected to the playing of the video in its entirety, he did
not object to the opinion statements when they were introduced. In contrast, the
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State v. Foley
State contends that the statements made by detectives are not impermissible
opinion testimony.
Two portions of the police video interview of Mr. Foley by Detective Higashiyama
are challenged as opinion evidence. The first portion contained the following dialogue:
HIGASHIYAMA: Have you talked to your wife ...
FOLEY: ... California.
HIGASHIYAMA: ... about where Russel [sic] might've gone?
FOLEY: She thinks he's dead.
Clerk's Papers (CP) at 397. The second portion is as follows:
HIGASHIYAMA: So you know that the family's going to be very
upset over this, right? Because some family members, not all of 'em are
pointing a finger but they're pointing at, at you, but just because of the
relationship.
FOLEY: Yeah.
HIGASHIYAMA: Kay, we're not pointing the finger at anybody
cause we don't know.
FOLEY: Yeah. No that's fine.
HIGASHIYAMA: So you're okay with the family and holding that
shadow over your head?
FOLEY: Yeah I'm fine with it.
CP at 419.
We conclude that the second portion ofthe video interview contains an opinion
regarding Mr. Foley's guilt. Detective Higashiyama's testimony that some of the family
members were pointing a finger at Mr. Foley because of the relationship implies that the
family members thought Mr. Foley was gUilty of killing Mr. Ray over the business and
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No. 30219-9-111
. State v. Foley
the tools. While this opinion was given in a video format and not direct testimony of a
witness, the trial court treated the interview as a witness statement because of the
difficulty in questioning Detective Higashiyama. As such, we treat this interview as a
witness statement and conclude that the opinion testimony was improperly introduced by
the prosecution.
However, the prosecutor's introduction of this evidence did not constitute
misconduct because the prosecutor's actions were not flagrant and ill-intentioned. The
evidence does not lead to a conclusion that the prosecutor sought to play the video in
order to get in evidence that otherwise would have been recognized as inadmissible. The
prosecutor attempted to introduce the evidence of the interview without playing the video,
but it was found to be too confusing. The prosecutor also was able to skip over other
portions of inadmissible material, which infers that the prosecutor was attempting to omit
the material.
Also, the introduction of the material did not cause enduring prejudice that could
not have been cured by instruction. The detective's statement regarding the family's
opinion of guilt was not highlighted evidence in the trial. The opinion testimony was
buried in the lengthy interview. The court recognized that most of the video interview
was irrelevant and a waste of time. Detective Higashiyama lessened the prejudicial
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State v. Foley
impact of the statement when he immediately responded to Mr. Foley that he did not
support the opinion of the family. This statement stifled any enduring prejudice that may
have arisen from the testimony. Any prejudice could have been cured by a limiting
instruction. The court offered to give an instruction, but Mr. Foley declined.
Prosecutorial misconduct did not deprive Mr. Foley of his right to a fair trial.
Ineffective Assistance ofCounse I. We review claims of ineffective assistance of
counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883,204 P.3d 916 (2009).
The federal and state constitutions guarantee the right to effective representation.
U.S. CONST. amend. VI; CONST. art. I, § 22. To prevail on an ineffective assistance of
counsel claim, trial counsel's conduct must have been deficient in some respect, and that
deficiency must have prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). Perfonnance is deficient if, after
considering all the circumstances, it falls below an objective standard of reasonableness.
State v. McFarland, 127 Wn.2d 322,334-35,899 P.2d 1251 (1995). Prejudice results if
the outcome of the trial would have been different had defense counsel not rendered
deficient perfonnance. Id. at 337.
Where a defendant claims that his or her counsel was ineffective for failing to
make a particular motion, "[a]bsent an affinnative showing that the motion probably
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No. 30219-9-111
State v. Foley
would have been granted, there is no showing of actual prejudice." Id. at 337 n.4.
Courts engage in a strong presumption that counsel's representation was effective.
Id at 335.
We conclude that Mr. Foley's counsel's failure to request a limiting instruction
could have been tactical. Counsel recognized that a comment on guilt was included in the
video interview and could have chosen to avoid additional attention to the statement by
refusing a limiting instruction.
And, we cannot conclude that the failure to request a limiting instruction
prejudiced Mr. Foley. As previously discussed, the evidentiary value of the opinion
evidence was not highlighted or heavily weighted. The opinion evidence was buried in an
extensive, lengthy video interview and immediately discredited by Detective
Higashiyama. As a result, we conclude that Mr. Foley's right to effective assistance of
counsel was not violated.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
RAP 10.1 O(c) states that reference to the record and citation to authorities are not
required in statements of additional grounds for review (SAG). However, the rule also
states that the appellate court will not consider the SAG for review if the SAG does not
inform the court ofthe nature and occurrence of the alleged errors. Generally, the
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No.30219-9-III
State v. Foley
appellate court is not obligated to search the record in support of claims made in a
defendant/appellant's SAG. RAP 10.lO(c).
In his SAG, Mr. Foley generally informs this court of the nature and occurrence of
the alleged errors, but fails to direct us to the portion of the extensive record where the
facts supporting the alleged errors can be found. Our review of Mr. Foley's claims are
based on our knowledge of the record, in accordance with RAP lO.10(c). We conclude
that his SAG contentions are without merit.
We affirm the conviction for the crime of first degree manslaughter.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
~/-'""----~-' -
Kulik, J.
WE CONCUR:
Brown, J. Korsmo, C.J.
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