State v. Classen , 143 Wash. App. 45 ( 2008 )

¶1 James Classen appeals his conviction for first degree murder of his wife. He argues that (1) the trial court improperly limited his cross-examination of state expert witness Dr. Barry Ward about a conversation Ward allegedly had with Classen’s son concerning the degree of murder Ward believed was appropriate, (2) testimony about his (Classen’s) pretrial behavior while in custody violated his right to a fair trial, (3) the prosecutor committed misconduct during his closing argument when he misstated the law by calling manslaughter an “accident,” and (4) the reconstructed record is insufficient for review. We affirm.

Hunt, J.

FACTS

I. Murder

¶2 At about two o’clock one February 2005 morning, Dr. James Classen went to the home of his estranged wife, Eveann Classen, who was sleeping. Using scissors from the sewing room, Classen stabbed Eveann¹ an estimated 100 times.

¶3 Classen then drove to the family’s cabin, called and told his friend Stanley Grenz that he had killed Eveann, and asked Grenz to come to the cabin. Grenz and another friend, Bruce Adams, went to the cabin, found Classen, and called 911.

¶4 Officers Tim Converse and David Garcia arrived at the cabin and arrested Classen for murdering Eveann. Classen told them the clothes he was wearing earlier and the scissors were at the cabin. Deputy Monty Buettner later found the scissors, clothes with reddish brown stains, and a Ziploc bag containing a stained towel on the cabin grounds.

¶5 Meanwhile, the sheriff’s office dispatched Deputies John Horch and Chad Rothenberger, and Sergeant Steve Shea to Eveann’s home. They found Eveann lying on the floor. A paramedic on the scene confirmed that she was dead. The medical examiner concluded that Eveann had died from blood loss and asphyxia sometime during the night.

¶6 The police transported Classen to the Skamania County Jail, where he waived his Miranda² rights and, in a videotaped statement, confessed to having killed his wife.³

II. Procedure

¶7 The State charged Classen with first degree murder.

A. Pretrial

¶8 The trial court ordered Classen admitted to Western State Hospital for a 15-day evaluation to determine his capacity to form an intent to commit first degree murder. Western State’s sanity commission, which comprised psychiatrist Dr. Nitin Karnik and psychologist Dr. Barry Ward, concluded that (1) Classen suffered from major depressive disorder, (2) he had the capacity to engage in “goal-directed conduct,” and (3) he could “reflect before purposeful action.”

¶9 The State moved in limine to restrict Classen’s cross-examination of Dr. Ward. Classen’s counsel planned (1) to cross-examine Dr. Ward about a conversation he had allegedly had with Classen’s son, Maurice Classen, and (2) to present Maurice’s testimony to impeach Dr. Ward. Clas-sen’s counsel told the trial court, (1) “What I believe [Ward] said to Maurice Classen runs contrary to the opinions he’s gonna offer this jury, where he said he believes this is more appropriately a murder two, which in shorthand is his way of telling someone that he thinks there’s grave questions about whether he had the capacity to premeditate,” Report of Proceedings (RP) at 609 (emphasis added), and (2) “for [Ward] to say it’s more appropriately Murder in the Second Degree is his way of saying that I believe that there’s serious questions about his ability to premeditate. That’s the only thing he could have meant in context.” RP at 611 (emphasis added).

¶10 In essence, defense counsel told the trial court that he intended to offer Maurice’s testimony that Dr. Ward had told him Classen should be charged with second degree murder instead of first degree murder. The State argued this hearsay opinion was inadmissible because it would invade the province of the jury. The trial court reserved ruling on the admissibility of this statement, explaining that admissibility would depend on the phrasing of the parties’ questions and witnesses’ answers at trial.

B. Trial

1. State’s case in chief

¶11 In its case in chief, the State presented testimony from the arresting officers, detectives, and Clark County Medical Examiner Dr. Dennis Wickham. It also played Classen’s videotaped confession for the jury.⁴

2. Classen’s defense

¶12 Classen’s defense was that he had been unable to form the requisite intent or to premeditate killing his wife because of his bipolar disorder. He called psychologist Dr. David Shapiro, who testified that Classen suffered from bipolar disorder and was in a dissociative state at the time of the offense. Classen also called pharmacologist Dr. Robert Julien, who testified that the antidepressive medications Classen was taking at the time of the homicide could cause a “manic flip” in a bipolar patient, precipitating a manic state.

3. Rebuttal

¶13 On rebuttal, the State presented Dr. Karnik, the Western State psychiatrist who had evaluated Classen, and Dr. Ward, the Western State psychologist who had evaluated Classen with Dr. Karnik, to counter Classen’s claim that he suffered from bipolar disorder and, therefore, was incapable of forming an intent to premeditate murder. Dr. Karnik testified that (1) a person suffering from bipolar disorder would typically “act out” in custody but (2) Classen continued to take the same medications while in custody pending trial and was “doing well.” Dr. Ward testified that (1) Classen showed no symptoms of bipolar disorder during his pretrial evaluation, (2) Classen’s behavior over the previous 14 months in custody was an important source of collateral information for purposes of diagnosis, and (3) a person with bipolar disorder would invariably have problems in custody.

¶14 Outside the jury’s presence, the trial court conducted a hearing to determine the admissibility of Maurice’s proposed impeachment testimony. According to Classen’s oral offer of proof, Dr. Ward had told Maurice that Classen should be charged with second degree murder instead of first degree murder. But Dr. Ward testified he was “certain” he did not tell Maurice that he (Ward) thought Classen should have been charged with second, rather than first, degree murder.⁵ RP at 842-43. Dr. Ward did acknowledge, however, having discussed with Maurice the possibility of a plea bargain; and he remembered Maurice “expressing a hope that this would be murder two versus a murder one,” but that he (Dr. Ward) “saw that not as a possible outcome at trial.” RP at 848.

¶15 The trial court found that in order to admit this proffered hearsay as a prior inconsistent statement, Dr. Ward would first have to testify in front of the jury about the degree of murder he believed was appropriate for Classen. The trial court then ruled that Dr. Ward’s opinion about the appropriate degree of murder would invade the jury’s province. Accordingly, the trial court limited Classen’s cross-examination by preventing questions about Dr. Ward’s alleged “second-degree murder” statement to Maurice, thereby excluding Maurice’s proposed impeachment testimony.

¶16 Over Classen’s objection, the State concluded its rebuttal by calling three custodial officers from the Clark County Jail, where Classen had been incarcerated pending trial. The custodial officers testified that Classen had exhibited no behavioral problems during his 14 months in custody; nor did he receive infractions for even minor offenses.

4. Instructions and closing argument

¶17 The trial court instructed the jury on the elements of first and second degree murder and first and second manslaughter. The instruction for first degree manslaughter described the crime as “when [a person] recklessly causes the death of another person.” The instruction for second degree manslaughter said that “a person commits the crime . . . when, with criminal negligence, he or she causes the death of another person....” Clerk’s Papers (CP) at 101, 105. During closing, the prosecutor argued:

Manslaughter instructions? Manslaughter. The defendant actually is trying to say he should be convicted only of manslaughter. Manslaughter is an accident. You look at the instructions on manslaughter it talks about acting recklessly for first degree, or negligently for second degree. Those are concepts of accident.

Where’s the accident here? This is not an accident. He’s not accidentally plunging the scissors in his wife’s face over and over and over. This is nothing like a manslaughter, it’s not even close.

RP at 951. Classen neither objected nor requested a curative instruction.

¶18 The jury returned a guilty verdict for first degree murder.

C. Posttrial

¶19 After the jury’s verdict, the trial court discovered that, due to a technical error, the audio feed for the courtroom video camera⁶ had not been recording for three days of trial. This discovery occurred seven days after the unrecorded testimony.

¶20 Acting under RAP 9.4, the parties and the trial court reconstructed the record, using notes and recollections of the clerk, the bailiff, both parties, and intermittent footage of courtroom proceedings produced by the news media. The parties signed an agreed report of proceedings, stating the reconstruction was accurate to the best of each party’s recollection, and the trial court signed its approval of the reconstruction. The trial court also recreated a verbatim transcript of one and one-half days using the intermittent footage from the news media. Nonetheless, Classen’s counsel filed a declaration stating that, in his opinion, the parties were unable to reconstruct the record sufficiently to satisfy due process.

¶21 Classen moved for a new trial based on (1) the trial court’s having limited his cross examination of Dr. Ward, (2) the trial court’s having allowed testimony about Classen’s behavior while in custody, (3) prosecutorial misconduct during closing argument, and (4) insufficiency of the record for appellate review. The trial court denied the motion.

¶22 The court sentenced Classen to 280 months in prison.

¶23 Classen appeals.

ANALYSIS

I. Sufficiency of Reconstructed Record

¶24 Classen argues that the partially reconstructed trial record violates his due process rights because it is insufficiently complete for our appellate review. We disagree.

A. Standard of Review

¶25 A criminal defendant must have a “ ‘record of sufficient completeness’ ” for appellate review of potential errors. State v. Larson, 62 Wn.2d 64, 66, 381 P.2d 120 (1963) (quoting Draper v. Washington, 372 U.S. 487, 495-96, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963)). But a “ ‘complete verbatim transcript’ ” is not required. State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (quoting Mayer v. City of Chi., 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971)).

¶26 Nevertheless, an alternative method must allow counsel to determine which issues to raise on appeal and to “ ‘place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.’ ” State v. Jackson, 87 Wn.2d 562, 565, 554 P.2d 1347 (1976) (quoting Draper, 372 U.S. at 495). If the reconstructed record fails to recount events material to issues on appeal satisfactorily, the appellate court must order a new trial. Tilton, 149 Wn.2d at 783. But such is not the case here.

B. Reconstructed Record

¶27 RAP 9.4 provides:

[P]arties may prepare and sign an agreed report of proceedings setting forth only so many of the facts averred and proved or sought to be proved as are essential to the decision of the issues presented for review. The agreed report of proceedings must include only matters which were actually before the trial court .... An agreed report of proceedings may be prepared if either the court reporter’s notes or the videotape of the proceeding being reviewed are lost or damaged.

Case law varies in holding reconstructed records insufficient or sufficient for appellate review, largely depending on the particular circumstances of the individual cases. We must decide toward which end of the spectrum Classen’s case falls.

1. Insufficient

¶28 We first examine the cases in which the reconstructed record was held insufficient for appellate review. In Larson, 62 Wn.2d 64, our Supreme Court held a reconstructed record insufficient where (1) a reporter’s notes for the entire trial were lost and the trial court provided its own narrative instead, id. at 65, and (2) the defendant had new counsel on appeal and, thus, because he had not been trial counsel, he could not appraise the sufficiency of the record. Under these circumstances, the court found a violation of due process and ordered a new trial. Id. at 67.

¶29 In Tilton, 149 Wn.2d at 783, the court also held a reconstructed record insufficient and reversed where (1) the trial court’s tape recorder was accidentally left off during the defendant’s testimony, id. at 779; (2) his trial lawyer had no independent memory or notes of the defendant’s testimony; and (3) the defendant’s unrecorded testimony was essential to his appeal based on ineffective assistance of trial counsel. Id. at 783. Despite its holding under the specific facts of this case, the Supreme Court generally noted that a new trial will seldom be required when a report of proceedings is not recorded or where it has been lost. Id.

2. Sufficient

¶30 We next examine the cases in which the reconstructed record was held sufficient. In State v. Putnam, 65 Wn. App. 606, 829 P.2d 787 (1992), review denied, 122 Wn.2d 1015 (1993), we held that a reconstructed record was sufficient for appellate review where (1) the trial court failed to record a suppression hearing where the court found the murder weapon admissible and (2) the appellate court could review a State-prepared narrative report of proceedings from its contemporaneous' notes, the court’s written findings of fact and law, and the verbatim report of the trial court’s ruling on the motion to suppress. Id. at 610.

¶31 In State v. Miller, 40 Wn. App. 483, 698 P.2d 1123, review denied, 122 Wn.2d 1015 (1985), the defendant argued that the trial record was insufficient for review because it omitted the court’s response to a jury inquiry during deliberations. Id. at 486. Division One of our court noted that where possible, the trial court should try to recreate an adequate narrative using available resources, including third parties. Id. at 487-88 (quoting Glaser v. Holdorf, 53 Wn.2d 92, 94, 330 P.2d 1066 (1958)). Noting, however, that Miller had failed to show any prejudice resulting from the omitted portion of the record, Division One affirmed his conviction. Id. at 489.

3. Classen’s reconstructed record

¶32 Read together, the pertinent holdings largely depend on such factors as (1) whether all or only part of the trial record is missing or reconstructed; (2) the importance of the missing portion to review the issues raised on appeal; (3) the adequacy of the reconstructed record to permit appellate review; and (4) the degree of resultant prejudice from the missing or reconstructed record, if any, to the defendant. These factors place Classen’s case at the sufficiency end of the reconstructed record spectrum.

¶33 Here, the record is not inadequate for our appellate review as was the case in Larson and Tilton, where the report of proceedings for the entire trial or of testimony vital to an issue on appeal was missing or lost. Larson, 62 Wn.2d at 65; Tilton, 149 Wn.2d at 783. Rather, Classen’s case is more like Putnam and Miller.

¶34 Here, there was a verbatim report of proceedings for most the 16-day trial.⁷ Missing were only 3 days of audio recording of the State’s rebuttal case, Vá days of which the parties and the trial court were able to reconstruct from news media video footage. This video footage exhibited a high degree of reliability and, according to the trial court, was of higher quality than the court’s own recordings. In addition, under the trial court’s direction, the parties were able to reconstruct the remainder of the missing record⁸ from the attorneys’ notes and memories one week after the testimony, which also exhibited a high degree of reliability.

¶35 Both parties signed the resultant agreed report of proceedings under RAP 9.4, attesting that the reconstructed record was accurate “to the best of [their] knowledge.” Although Classen’s trial counsel also declared he could not certify the reconstruction was accurate and complete, on appeal he fails to specify any material facts that the reconstructed record omitted or how the record diminishes his ability to raise, and our ability to consider, his issues on appeal. Thus, Classen has demonstrated no prejudice as a result of the reconstructed narrative report of proceedings.

¶36 We hold that the record, including the reconstructed portions, adequately represents the facts material to the issues on appeal and that it is sufficiently complete for our appellate review. Accordingly, we decline to reverse on this ground.

II. Restriction of Impeachment Testimony

¶37 Classen next argues that the trial court erred by restricting his cross-examination of Dr. Ward about his alleged statement to Maurice that second degree was about the appropriate degree of murder to charge and by excluding Maurice’s proposed impeachment of Dr. Ward on this point. Again, we disagree.

A. Standard of Review

¶38 The right to cross-examine adverse witnesses is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). A trial court may, in its discretion, reject cross-examination where the circumstances only remotely tend to show bias or prejudice of the witness, where the evidence is vague, or where the evidence is merely argumentative and speculative. State v. Knapp, 14 Wn. App. 101, 107-08, 540 P.2d 898 (1975); see also State v. Roberts, 25 Wn. App. 830, 611 P.2d 1297 (1980). We review a trial court’s limitation of cross-examination for manifest abuse of discretion. State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985). We find no such abuse here.

B. Limitation of Cross-Examination

|39 Generally, an out-of-court statement offered for the truth of the matter asserted is inadmissible hearsay. ER 801, 802. Nonetheless, a witness’s prior out-of-court inconsistent statement may be admissible for impeachment, ER 613(b), to allow the trier of fact to compare “something the witness said out of court with a statement the witness made on the stand” in order to ascertain the witness’s credibility. State v. Spencer, 111 Wn. App. 401, 409, 45 P.3d 209 (2002).

¶40 Here, both before and during trial, Classen made an offer of proof that Maurice Classen would testify that State rebuttal witness Dr. Ward had told him that a second degree murder charge would be more appropriate for Classen than first degree murder. The trial court ruled that (1) the admissibility of Maurice’s testimony depended on Dr. Ward’s testifying about the degree of murder he personally believed the State ought to have charged; (2) such opinion would improperly invade the province of the jury, regardless of whether Dr. Ward opined that first or second degree murder was the more appropriate charge;⁹ (3) therefore, Dr. Ward could not tell the jury his opinion about the appropriate degree of murder that the State should have charged; and (4) Classen could not attempt to impeach Dr. Ward with Maurice’s hearsay testimony about Dr. Ward’s allegedly prior inconsistent statement that second degree murder was the appropriate charge.¹⁰

¶41 Accordingly, we hold that Classen has failed to show that the trial court’s exclusion of Maurice’s testimony as hearsay was a manifest abuse of discretion.

C. Confrontation Clause

¶42 In a related argument, Classen contends that the trial court’s limitation of Dr. Ward’s cross-examination violated his Sixth Amendment confrontation rights. This argument fails.

¶43 Article I, section 22 of the Washington Constitution guarantees a criminal defendant the right to confront and cross-examine witnesses against him. State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996), review denied, 131 Wn.2d 1011 (1997). But there is no constitutional right to admit irrelevant or otherwise inadmissible evidence. State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002) (citing State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)); Davis v. Washington, 547 U.S. 813, 821-22, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

|44 Furthermore, when Dr. Ward testified as a rebuttal witness for the State, he was available for cross-examination by Classen, subject only to the trial court’s exclusion of his alleged statement to Maurice. The trial court properly excluded Dr. Ward’s hearsay statement to Maurice about the appropriate degree of murder as inadmissible opinion evidence, which would have invaded the jury’s province. ¹¹ We hold, therefore, that because the excluded evidence was inadmissible, Classen had no Sixth Amendment right to introduce it.

III. Behavior during Pretrial Custody

¶45 Classen next argues the trial court erred and violated his right to a fair trial when it admitted testimony about his behavior during pretrial custody. The State counters that in so ruling, the trial court properly balanced the testimony’s probative value and any prejudicial effect and, therefore, did not abuse its discretion. We agree with the State.

A. Standard of Review

¶46 The trial court exercises broad discretion to determine admissibility of evidence, balancing its probative value against its potential prejudicial effect. ER 403. We review the trial court’s admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). We find no such abuse here.

B. Right to Fair Trial

¶47 The Washington Constitution guarantees criminal defendants a fair and impartial trial. Wash. Const, art. I, §§ 3, 22. Inherent in this right is the presumption of innocence, including the right to “the appearance, dignity, and self-respect of a free and innocent man.” State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (right to fair trial violated when defendant appeared before jury in physical restraints), cert. denied, 528 U.S. 922 (1999).

¶48 Classen cites State v. Gonzalez, 129 Wn. App. 895, 898, 120 P.3d 645 (2005), in which, before the defendant was brought into court, the trial court announced to the jury that Gonzalez was in custody throughout trial and that he might be physically restrained and under guard in court. Even though Gonzalez was not actually restrained in the jury’s presence during trial, Division Three of our court reversed and remanded for a new trial, holding that “the key concern is the jury’s awareness, by whatever means conveyed.” Id. at 902, 905.

¶49 In contrast, Division One of our court rejected a defendant’s argument that testimony about his in-custody conversations unconstitutionally violated his right to fair trial by implicating his custodial status. State v. Mullin-Coston, 115 Wn. App. 679, 692, 64 P.3d 40 (2003). The court held that (1) although testimony referencing custody may “carry some prejudice, [it does] not carry the same suggestive quality of a defendant shackled to his chair during trial” and (2) a “reasonable juror would know that a defendant in a first degree murder trial was not likely to be released pending trial . . . regardless of whether he was later found to be innocent.” Id. at 693. The court considered the defendant’s constitutional argument but ultimately concluded that the issue was evidentiary, not constitutional, in nature. Id. at 692-95.

¶50 The facts here are readily distinguishable from those in Gonzalez and are more like those in Mullin-Coston. Here, the trial court made no special advance announcement drawing attention to Classen’s incarcerated status. Nor did Classen ever appear in shackles in front of the jury. Thus, the jury had no actual or imagined mental picture of Classen as so dangerous that he had to be shackled.

¶51 Here, as in Mullin-Coston, we consider Classen’s constitutional argument but conclude that the issue is evidentiary in nature. Here, as in Mullin-Coston, the trial court balanced the probative value against the possible prejudicial effect and found in favor of admitting the evidence. Three experts testified that Classen’s behavior during his pretrial time in custody was an important collateral source to determine whether Classen had bipolar disorder; the probative value of the testimony was very high and particularly relevant to his capacity to form the requisite mental intent to commit first degree murder. We note here, as did our colleagues in Mullin-Coston, that (1) a reasonable juror likely knows that a defendant charged with first degree murder is kept in custody and (2) the guards’ testimonies did not give rise to the same prejudicial effect as a defendant’s appearance under physical restraint in view of a jury.

¶52 Given the high probative value of the testimony relative to the slight likelihood of its prejudicial effect, we hold that the trial court did not abuse its discretion by admitting testimony about Classen’s pretrial behavior while in custody.¹²

IV. Prosecutorial Misconduct

¶53 Finally, Classen argues that the prosecutor committed misconduct by allegedly misstating the law in closing when he argued to the jury that “manslaughter is an accident” and this killing was no accident. The State counters that any misstatement of the law was not so ill intentioned and flagrant that a curative instruction could not have cured the error if Classen had timely objected, which he failed to do. We hold that any error was harmless.

A. Standard of Review

¶54 Classen neither objected during the prosecutor’s closing argument nor requested a curative instruction. Instead, he raised the issue for the first time after the jury’s verdict, during his motion for a new trial.

¶55 Generally, in order to preserve error for review, counsel must call the alleged error to the court’s attention at a time when the error can be corrected. State v. Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975). Failure to object to an improper comment constitutes waiver of error unless the comment is so flagrant and ill intentioned that a curative instruction could not have obviated the resulting prejudice. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). We review a prosecutor’s alleged misconduct “in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.” State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (citing Russell, 125 Wn.2d at 85-86).

B. Closing Argument

¶56 Classen relies on State v. Davenport, 100 Wn.2d 757, 758-59, 675 P.2d 1213 (1984), in which the jury returned a guilty verdict following a prosecutor’s misstatement of the law about accomplice liability. Although defense counsel objected immediately, properly preserving the issue for appeal, the trial court overruled the objection. Id. During deliberations, the jury requested a legal definition of “accomplice.” Id. at 764. Ultimately overturning the conviction, our Supreme Court held that because the record “clearly supports the conclusion that the jury had considered the improper statement during deliberation,” the error was not harmless. Id.

157 Here, unlike in Davenport, Classen waived this issue for appeal when he failed to object at the first opportunity after the prosecutor made the improper argument during closing. Even assuming, without deciding, that the prosecutor’s misstatement of law was misconduct, it was not so flagrant and ill intentioned that a curative instruction could not have remedied its prejudicial effect. Having failed to preserve this issue in a timely fashion, Classen cannot now raise this issue on appeal. Therefore we do not further consider it.¹³

¶58 Affirmed.

Armstrong, J., concurs.

1 We use the first names of some parties and witnesses to avoid confusion. We intend no disrespect.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 The trial court later held a CrR 3.5 hearing, found that Classen had knowingly and voluntarily waived his constitutional rights, and admitted the videotaped statement into evidence. The admissibility of this confession is not an issue on appeal.

4 The State did not call Drs. Ward or Karnik in its case in chief.

5 We note that in note 11 on page 19 of his brief of appellant, Classen characterizes his offer of proof as follows: “Maurice Classen would have testified that Dr. Ward had told him that he (Ward) did not really think Dr. Classen would have the capacity to premeditate.” Contrary to Classen’s assertion, the record consistently shows that Classen’s offer of proof was limited to Dr. Ward’s alleged statement to Maurice that second degree murder was the more appropriate charge: Defense counsel told the trial court, “Maurice .. . indicated to me that Dr. Ward told him he thought this case should be a murder two instead of a murder one.” RP at 195. Trial court asked if “murder two and not a murder one” was “the verbiage that he’s supposed to have said”; to which defense counsel replied, “[E]ssentially that is [what he said].” RP at 196.

6 Clark County Superior Court uses a video camera to record its trial proceedings instead of a court reporter.

7 The portion of this trial during which the parties presented evidence to the jury, however, was six days in length.

8 The court was able to recreate verbatim transcripts for portions of Dr. Ward’s testimony, and the attorneys’ entire closing arguments from the news media footage. The parties reconstructed the testimony of Dr. Karnik and the three custodial officers.

9 See ER 704; see also State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (to determine whether statement is impermissible opinion testimony, the court will generally consider the circumstances of the case, including: type of witness, nature of the testimony and charges, type of defense, and other evidence presented (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993))).

10 Dr. Ward did not specifically testify about Classen’s mental capacity to commit first degree murder, much less about the actual degree of the crime. Instead, as discussed above, Dr. Ward testified that Classen (1) suffered from major depressive disorder, (2) had the capacity to engage in “goal-directed behavior,” and (3) could “reflect before purposeful action.” RP at 836-38.

11 Because we affirm the trial court’s exclusion of Maurice’s testimony as hearsay and improper opinion evidence, we do not address Classen’s additional argument that the Sixth Amendment required allowance of Maurice’s testimony under Chambers, 410 U.S. 284, or that it was nontestimonial, and somehow thereby admissible, under Davis, 547 U.S. at 821-22, and State v. Mason, 160 Wn.2d 910, 918, 162 P.3d 396 (2007).

We further note that even if the trial court’s preventing cross-examination of Dr. Ward about his alleged opinion that second degree murder was the appropriate charge implicated Classen’s Sixth Amendment confrontation rights, any error was harmless. Mason, 160 Wn.2d at 927 (citing State v. Davis, 154 Wn.2d 291, 304, 111 P.3d 844 (2005)); State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995). Also, testifying on rebuttal, about the symptoms of bipolar disorder and the effects the illness would have on a person in custody, Dr. Kamik corroborated Dr. Ward’s rebuttal testimony.

12 Although we agree with the dissent that reviewing this issue might have been easier if we had the missing verbatim report of proceedings, instead of the reconstructed version, we cannot say that the lack of such verbatim report rises to the level of preventing meaningful appellate review. Nor has Classen alleged or demonstrated specific prejudice flowing from the reconstructed record, in which his trial counsel participated.

13 We note, however, that the trial court properly instructed the jury on the definition of manslaughter as a lesser included offense of murder. Jurors are presumed to follow the court’s instructions. State v. Daniels, 160 Wn.2d 256, 264, 156 P.3d 905 (2007) (citing State v. Ervin, 158 Wn.2d 746, 756, 147 P.3d 567 (2006)). Moreover, there is no evidence that the jury considered the prosecutor’s allegedly improper “manslaughter” remark during its deliberations. In light of the entire proceeding, Classen has not shown likely prejudice from the prosecutor’s closing argument. Thus, even were we to consider the substance of Classen’s argument, any error was harmless.