The opinion of the court was delivered by: Agid
AGID, J. -- Paul Sutton appeals his conviction for first degree murder in violation of RCW 9A.32.030(1)(a) contending the trial court erred in allowing the State to present evidence about gang affiliation and behavior and in denying his request for funds to transcribe testimony of a prosecution witness who testified at a prior trial. We agree with the trial court that the gang affiliation evidence was relevant to prove both premeditation and motive and conclude that it did not err in denying Sutton's request for funds. Accordingly, we affirm.
Early in the morning on April 9, 1993, a janitor at North City Elementary School found Edgar Williams' body lying on the ground between two portables. Williams had been shot in the chest and arm several times and his face was cut and bruised. Glass from broken bottles littered the ground near Williams' body. The medical examiner estimated Williams died between 6 p.m. April 8th and 2 a.m. April 9th. Neighbors reported hearing gunshots around 1:30 a.m. on April 9th. On April 19, the State charged Sutton with the first degree murder of Williams. The case was tried three times before Judge Deborah Fleck. For reasons that are not clear from the record, the first trial resulted in a mistrial and the jury deadlocked 11-1 in the second. Following the third trial, the jury found Sutton guilty as charged.
A couple of years before he was charged with Williams' murder, Sutton shot a man named Rodney Moore in the buttocks. Williams and another man, Travis Martin, gave statements to the police in connection with the shooting. Sutton pleaded guilty to second degree assault and spent a little over a year in prison. Sutton and Williams were childhood friends. They were affiliated with the Bloods, although the defense disputed whether Sutton was involved in the gang when Williams was murdered. The State's theory at Sutton's murder trial was that he shot Williams in retaliation for Williams' cooperation with the police investigation of the 1991 shooting incident. It posited that Sutton bore a murderous grudge towards Williams because he breached his loyalty to the Bloods by snitching on a fellow gang member. To support this theory, the State presented testimony of Detective Michael Devine of the Seattle Police Department's (SPD) gang unit concerning gang members' pattern of non-cooperation with law enforcement.
The State also presented the eyewitness testimony of two people who were with Sutton the night Williams was murdered, Lillian and Marcus Pressley. Lillian was a friend of Sutton's sister. She and her three children shared an apartment in Mountlake Terrace with Sutton's sister and her three children. Lillian and Sutton were intimately involved, and he was living at the apartment with her. Marcus is Lillian's nephew. He lived in the same apartment building as Lillian with his mother and younger siblings.
Lillian and Marcus testified that they went out driving with Sutton in Lillian's car late in the afternoon on April 8, 1993. Lillian, Marcus and Sutton drove to the Lakeshore Apartments in Rainier Valley and then to the Holly Park Apartments in the south end of Seattle. When they left the Holly Park Apartments, Sutton mentioned that Williams had just gotten out of prison that day. Sutton said he had something he needed to discuss with him. From the south end, they drove to a video arcade downtown. Lillian testified she thought Sutton was looking for Williams. When they got downtown, Sutton parked the car and met some people on a corner. He returned to the car with a person who turned out to be Williams. Williams got into the car and the four of them drove back to Rainier Valley, bought some beer and stopped by a night club. According to Lillian, she stayed in the car while Marcus, Sutton and Williams went into the nightclub. They returned with marijuana, which they promptly smoked. From the nightclub, they headed north, stopped in the Central District to buy more beer and headed for a park in Mountlake Terrace. The park was closed, so they went to North City Elementary School and drove to the end of the school.
At the school, Sutton and Williams got out of the car, and Sutton shot Williams a number of times while Lillian and Marcus watched. Sutton then reached into the car, grabbed some beer bottles and started breaking them over Williams' head. Sutton got back into the car and drove down the freeway. As he was driving, he threw the bullet shells out the window. He went downtown and then back to Lillian's apartment. Lillian and Sutton left the apartment several minutes later and drove back to the elementary school. Sutton pulled the car up near Williams' body, got out and looked through Williams' pockets.
Several days later, Sutton, Lillian and Marcus were stopped by police while they were driving around drinking. When the police found a gun under the front seat, they arrested Sutton and Lillian. Lillian posted bail and was released a day later, and Sutton was detained pending the murder investigation. A few days later, a detective from the SPD gang unit contacted Lillian and Marcus in connection with the murder investigation. Both gave statements to the police, and Lillian turned over a gun belonging to Sutton that she had hidden in her closet. Forensic evidence established that Williams was shot with that gun.
Sutton moved pretrial to exclude references to gangs and the gang affiliation of any of the participants. The court ruled that gang affiliation evidence would be relevant if the State established a proper foundation for it, such as testimony establishing a code of retaliation. Before his third trial, Sutton moved to reconsider the original ruling on the gang affiliation evidence, arguing that the State had not established a foundation for this evidence at the second trial. The trial court denied the motion.
Before his third trial, Sutton requested funds to transcribe Lillian's testimony from the second trial, contending that she had testified inconsistently and that he intended to use the transcript to impeach her. Judge Fleck denied the request, but told the defense she would present a formal written request to the court audit committee if it prepared one. The defense never presented her with a formal request for funds. After the State rested, Sutton moved for a mistrial because the State had used public funds to obtain a transcript of Travis Martin's prior testimony. Judge Fleck denied the motion, reminding the defense that she had offered to submit a request to the audit committee but never received one. Sutton appeals these rulings.
I. Gang Affiliation Evidence
The trial court ruled that, with a proper foundation, the State could introduce evidence that Sutton, Williams and some of the witnesses were affiliated with the Bloods in order to show premeditation and motive. The State argued that, because Sutton's motive for the murder was retaliation for Williams' cooperation with police on the assault charge, their gang affiliation was relevant to establish the consequences of police cooperation among gang members. The trial court agreed that, under the facts of this case, gang affiliation evidence was relevant for this purpose, reasoning that there is probably "some retaliation or some code of retaliation for turning against another gang member." The court then evaluated whether the evidence would be unfairly prejudicial. It agreed with the State that because everyone involved was an alleged gang member, including ...