[No. 77507-9. En Banc.]
Argued October 26, 2006. Decided July 19, 2007.
[2] Appeal - Review - Issues First Raised in Supplemental Brief - In General. An appellate court may decline to consider an issue raised for the first time in a supplemental brief. [3] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial Statement - What Constitutes - In General. Under the Sixth Amendment confrontation clause, a "testimonial" hearsay statement may not be admitted against a criminal defendant unless the declarant is available to testify or the defendant has had a prior opportunity to cross-examine the declarant. In general, "testimonial" statements are those pretrial statements that declarants would reasonably expect to be used prosecutorially and those made in circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. [4] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Declarant-Initiated Contact With Police - Delayed Report From Safe Location. A crime victim's statements about the crime made to police upon the declarant's own initiative at a time well past when the crime occurred and from a safe distance from the scene of the crime are "testimonial" in nature for Sixth Amendment confrontation clause purposes. [5] Criminal Law - Evidence - Hearsay - Right of Confrontation - Nonhearsay. An out-of-court statement sought to be admitted against a criminal defendant is not necessarily immune from Sixth Amendment confrontation clause analysis merely because it is offered for a purpose other than to prove the truth of the matter asserted. To survive a hearsay challenge is not, per se, to survive a confrontation clause challenge. [6] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Statement Ruled To Be Nonhearsay - Affirmance on Appeal - Effect. An appellate court's determination that an out-of-court statement was properly admitted in a criminal trial for a purpose other than to prove the truth of the matter asserted does not necessarily remove the statement from the ambit of the Sixth Amendment confrontation clause. The appellate court's determination does not affirm that the ruling was correct; it affirms no more than that the trial court's ruling was reasonable. The standard of review applied by the appellate court is abuse of discretion. Discretion is abused only if the trial court's decision is manifestly unreasonable or is based on untenable grounds or reasons. A confrontation clause challenge is reviewed de novo. An appellate court's decision that the trial court's hearsay ruling was reasonable does not, therefore, preclude the court from ruling that the statement is testimonial in nature and subject to Sixth Amendment confrontation clause analysis. [7] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Declarant's Personal Reasons. A declarant's personal reasons for making a statement are not dispositive as to whether the statement is testimonial or nontestimonial in nature for Sixth Amendment confrontation clause purposes. [8] Criminal Law - Evidence - Hearsay - Right of Confrontation - Forfeiture by Wrongdoing - Applicability. The doctrine of forfeiture by wrongdoing, which equitably extinguishes a criminal defendant's Sixth Amendment confrontation clause rights with respect to an unavailable witness if the witness's unavailability is due to the defendant's wrongdoing, is adopted by the Supreme Court as the law of Washington. Application of the doctrine requires a finding of fact, based upon clear, cogent, and convincing evidence, that the defendant's conduct prevented the witness's testimony. Application of the doctrine does not depend on the reason the defendant obtained the witness's absence; i.e., specific intent to prevent the witness's testimony is unnecessary to application of the doctrine. [9] Criminal Law - Right To Confront Witnesses - Review - Harmless Error - In General. The erroneous admission of evidence in violation of the Sixth Amendment right to confront adverse witnesses is subject to harmless error analysis. The error is harmless if there is no reasonable probability that the outcome of the trial would have been different had the error not occurred. This determination is made by utilizing the overwhelming untainted evidence test. Under this test, the error is harmless if the untainted evidence of guilt is overwhelming. [10] Homicide - Jury - Selection - Sentencing Consequences - Noncapital Crime - Validity. Prospective jurors in a first degree murder prosecution may not be informed during voir dire that the case does not involve the death penalty. [11] Homicide - Jury - Selection - Sentencing Consequences - Noncapital Crime - Nature of Error. A trial court's violation of the rule that prospective jurors in a first degree murder case should not be informed during voir dire that the case does not involve the death penalty is subject to harmless error analysis. [12] Evidence - Opinion Evidence - Expert Testimony - Scientific Evidence - Scientific Support - Necessity. A trial court properly excludes the opinion of an expert on a scientific matter if the opinion lacks scientific support. [13] Criminal Law - Evidence - Opinion Evidence - Ultimate Issue - In General. In a criminal trial, testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier fact. [14] Homicide - Death - Cause - Medical Examiner's Determination - Presumptive Death Certificate - Basis for Conclusion - Testimony in Criminal Trial. In a prosecution for murder in which the alleged victim's body is never found, the medical examiner may be allowed to testify that a presumptive death certificate was issued for the victim based on physical evidence indicating that the victim sustained life-threatening wounds and on the fact that the victim has gone missing. [15] Criminal Law - Evidence - Review - Preservation for Review - Proper Objection - Necessity. A claim of evidentiary error in a criminal trial is not preserved for review if no objection was raised at trial on the particular grounds alleged. [16] Criminal Law - Evidence - Other Offenses or Acts - Review - Failure To Raise in Trial Court - Relevance. A criminal defendant's claim that evidence admitted at trial should have been excluded as prior bad act evidence under ER 404(b) is not preserved for review if the only objection raised at trial was based on relevance. [17] Criminal Law - Evidence - Other Offenses or Acts - Review - Objection on Grounds of Prejudice. A criminal defendant's claim that evidence admitted at trial should have been excluded as prior bad act evidence under ER 404(b) is preserved for review if an objection was raised at trial on the grounds of prejudice. [18] Criminal Law - Evidence - Other Offenses or Acts - Review - Standard of Review. A trial court's decision to admit evidence of a criminal defendant's prior acts under ER 404(b) will not be disturbed by a reviewing court absent a manifest abuse of discretion such that no reasonable judge would have ruled as the trial court did. [19] Criminal Law - Evidence - Other Offenses or Acts - Relationship With Victim. Evidence of a criminal defendant's prior acts may be admitted against the defendant under ER 404(b) if it is offered to demonstrate the nature of the defendant's relationship with the victim. [20] Criminal Law - Evidence - Other Offenses or Acts - Motive - Intent. Evidence of a criminal defendant's prior acts may be admitted against the defendant under ER 404(b) if it is offered to demonstrate motive and intent. [21] Criminal Law - Evidence - Other Offenses or Acts - Limiting Instructions - Failure To Give - Harmless Error. A trial court's failure to give a limiting instruction in conjunction with the admission of prior bad act evidence under ER 404(b) constitutes harmless error if the outcome of the case was not affected by the error. [22] Homicide - First Degree Murder - Aggravated First Degree Murder - Aggravating Circumstances - Commission of Another Crime - Sufficiency of Evidence - Test. In a prosecution for aggravated first degree murder in which it is alleged as an aggravating circumstance that the murder was committed in the course of the commission of another crime, there is sufficient evidence to establish the aggravating circumstance if any rational trier of fact, viewing the evidence in the light most favorable to the State, could have concluded that the other crime was committed. [23] Homicide - First Degree Murder - Aggravated First Degree Murder - Aggravating Circumstances - Single Aggravating Factor. Only one aggravating factor is needed to support a conviction of aggravated first degree murder. [24] Homicide - First Degree Murder - Aggravated First Degree Murder - Instructions - Separation of Elements of Crime From Aggravating Circumstance. In a prosecution for aggravated first degree murder, it is not error for the trial court to bifurcate the instructions and verdict forms between the base offense of first degree murder and the alleged aggravating circumstances, so long as the jury is required to apply the reasonable doubt standard in making both findings. ALEXANDER, C.J., and C. JOHNSON, J., concur by separate opinion; SANDERS and MADSEN, JJ., dissent by separate opinion. Nature of Action: Prosecution for aggravated first degree murder. Superior Court: The Superior Court for King County, No. 01-1-03569-6, Michael J. Fox, J., on July 25, 2003, entered a judgment on a verdict of guilty. Court of Appeals: The court affirmed the judgment at 127 Wn. App. 554 (2005), holding that the trial court did not violate the defendant's constitutional right to confront adverse witnesses by permitting witnesses to testify about statements made by the victim while in peril for the purpose of seeking protection before he disappeared and that the trial court's statement to prospective jurors during voir dire that the case did not involve the death penalty was not prejudicial to the defendant. Supreme Court: Holding that the defendant forfeited his confrontation clause challenge to the admission of hearsay statements made by the victim by causing the victim to be unavailable to testify, that any error in admitting the statements was harmless, that the trial court's informing prospective jurors that the case did not involve the death penalty constituted harmless error, that certain expert testimony was properly excluded and other expert testimony was properly admitted, that claims of error in admitting prior bad act evidence were not preserved for review, that the trial court did not abuse its discretion by admitting prior bad act evidence, that there was sufficient evidence of the aggravating circumstance that the murder was committed in the course of a burglary, and that the trial court did not err by bifurcating the instructions and verdict forms between first degree murder and the alleged aggravating circumstances, the court affirms the decision of the Court of Appeals. Nancy P. Collins- (of Washington Appellate Project), for petitioner. Daniel T. Satterberg-, Interim Prosecuting Attorney, and Andrea R. Vitalich-, Deputy, for respondent. En Banc ¶1 CHAMBERS, J. -- Kim Heichel Mason appeals his conviction for murder, claiming prejudice from multiple errors at the trial court. He argues he was denied his constitutional right to confront a witness against him, and he argues the jury was improperly informed that the State was not seeking the death penalty. He claims a variety of evidence was admitted in violation of the rules of evidence, that his expert witnesses' testimony was improperly excluded, that there was insufficient evidence he murdered the victim in the course of a robbery, and finally that the trial court improperly separated the aggravating factors from the base murder charge in the verdict form. We affirm his conviction. FACTS ¶2 Mason was convicted of the murder of his one-time friend Hartanto Santoso. Mason and Santoso became friends while they worked together at a retirement home. As Mason's life became more difficult, his friendship with Santoso deteriorated. Friends suspected Mason was addicted to drugs. On January 23, 2001, Mason invited Santoso to his home. While Santoso's back was turned, Mason choked him into unconsciousness and bound and gagged him. When Santoso awoke, Mason threatened him with a gun and forced him to write his roommate a letter saying he was leaving town. Mason then forced Santoso to write him a check for the balance of his bank account. He also threatened to inject Santoso with drain cleaner. Santoso ultimately calmed Mason down and convinced Mason to release him with the promise not to call the police. ¶3 But the next day, at a friend's urging, Santoso did call the police. Santoso reported his story to several police officers. Based on what Santoso reported, the police searched Mason's home, finding items that corroborated Santoso's story. They arrested Mason, who admitted he strangled and bound Santoso but claimed he did so in selfdefense. He denied demanding money or threatening to inject Santoso with drain cleaner. ¶4 The State charged Mason with first degree kidnapping and first degree attempted robbery, but he was released pending trial. After Mason's release, Santoso arranged with county-employed, victim's advocate Linda Webb for a civil protective order barring Mason from visiting Santoso. Despite this order, Santoso called Webb upon Mason's release, expressing fear for his life and begging to sleep in jail for safety. Shortly thereafter, Santoso disappeared. All that remained was a blood trail from his apartment to his car. The blood loss was so severe the King County Medical Examiner issued a presumptive death certificate. ¶5 The State alleged that Mason murdered Santoso to eliminate Santoso as the only witness supporting the charges of kidnapping and attempted murder. Relying upon an alibi provided by his girl friend, Marina Madrid, Mason claimed he could not have committed the crime. But, Madrid later recanted and provided police with the details of Santoso's murder. Mason, she claimed, murdered Santoso. Madrid testified that on February 19, 2001, Mason called Madrid, telling her to meet him at the airport with a change of clothes. Later that night, Madrid met Mason at the airport; Mason's hands were covered with blood and he told Madrid, "Santoso won't be a problem anymore." Report of Proceedings (RP) (Apr. 29, 2003) at 98. Mason had been cut on his right thigh and asked Madrid to sew the wound shut. On their way home, Mason threw out a bloody knife and bloody clothes. Police later recovered the knife. Deoxyribonucleic acid (DNA) evidence established the blood on the clothes and in the car belonged to Santoso. DNA evidence further established that blood found in Santoso's vehicle belonged to Mason and was located where the driver's right thigh would be. ¶6 The State charged Mason with aggravated first degree murder. The State introduced evidence from police officers and the victim's advocate who testified about what Santoso told them before he disappeared. Needless to say, Santoso was never interviewed by Mason's defense team. After a 10-week trial, a jury found Mason guilty. The trial court imposed a sentence of life without possibility of parole. The Court of Appeals affirmed and we granted review. State v. Mason, 127 Wn. App. 554, 126 P.3d 34 (2005); State v. Mason, 157 Wn.2d 1007, 139 P.3d 349 (2006). THE CONFRONTATION CLAUSE ¶8 Mason relies on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), a watershed decision reformulating the conception of the confrontation clause. Before Crawford, the leading case on the confrontation clause was Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), which allowed a trial court to admit the out-of-court statement of an unavailable witness even without prior opportunity for confrontation if it bore an "adequate 'indicia of reliability.' " Id. We followed this approach in State v. Crawford, 147 Wn.2d 424, 54 P.3d 656 (2002), and decided the statements at issue were reliable and thus admissible, despite the defendant's lack of opportunity to confront the witness. The United States Supreme Court reversed, holding that the statements in question were subject to the right of confrontation. Crawford, 541 U.S. at 68. ¶10 In Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Supreme Court again addressed the confrontation clause. The cases involved statements made to law enforcement personnel during an emergency call and a crime scene investigation. The court carefully limited its discussion of "testimonial" to the facts at hand but restated that statements "are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 2273-74. Thus the objective test seemed to shift from the declarant in Crawford to the interrogator in Davis, leading Justice Clarence Thomas to complain that district courts were now "charged with divining the 'primary purpose' of police interrogations." Id. at 2280 (Thomas, J., dissenting). It may be more accurate to say that until the Supreme Court more fully develops precisely what is "testimonial" under the confrontation clause, all courts will be divining the intent of our nation's highest court. With this background in mind, we will examine the statements Mason challenges. THE STATEMENTS Corporal Haslip ¶12 After the Supreme Court's decision in Crawford but before Davis, the Court of Appeals assumed for sake of argument that Santoso's statement to Corporal Haslip was testimonial. Id. In light of Davis, we agree. An emergency occurred—Santoso was assaulted and kidnapped by Mason. The emergency ended, Santoso went to sleep, awoke the next day, and then reported the crime. It is surely true that Santoso was afraid and wanted protection from a very real threat. Almost every person reporting a crime, in some sense, seeks the protection of the police. But the test announced by the Supreme Court in Davis looks to the "primary purpose" of the interrogation. Davis, 126 S. Ct. at 2274. A prerequisite, the court announced, is that an emergency is "ongoing." Id. The reason is that a statement made when there is no ongoing emergency does not "objectively indicat[e] that the primary purpose . . . is to enable police assistance to meet an ongoing emergency." Id. at 2273. The significant lapse of time between the emergency Santoso endured and his report to Corporal Haslip, combined with the fact that the statements were made miles away from the scene of the emergency in a safe police station, convince us the statements were testimonial. Detectives Berberich, Malins, and Roze ¶13 Mason challenges the testimony of Detectives John Berberich, Anne Malins, and Kristi Roze. Detective Berberich repeated Santoso's statement that he was terrified for his life. He also relayed portions of Santoso's story to explain why he seized particular items during a search of Mason's apartment. The court admitted the testimony for that purpose but read to the jury a limiting instruction admonishing them not to use the evidence for its truth. Similarly, Detective Malins reported Santoso's statement that he partially wrote a check for $700 to Mason and, at his demand, to explain why she seized his checks. The court admitted the statement with a limiting instruction stating that it was not to be considered as evidence of anything other than why Detective Malins took the check into possession. Mason also objects to the testimony of Detective Roze, who testified that Santoso said he was terrified and requested to sleep at the station house. The trial court ruled Santoso's expression of fear could be admitted only to show Santoso's state of mind at the time. ¶14 The Court of Appeals reasoned that the statements repeated by Detectives Berberich, Roze, and Malins were not offered for their truth and thus were not subject to the confrontation clause. Mason, 127 Wn. App. at 566 (citing Crawford, 541 U.S. at 59 n.9). Mason challenges this proposition, arguing that statements admitted as "background" or "state of mind" hearsay exemptions violate the confrontation clause when they are in fact used for their truth by the jury or prosecutor. He argues the statements were, in spite of the court's limiting instructions, used to establish the truth of Santoso's claims. Mason correctly notes that courts ought to guard against any "backdoor" admission of inadmissible hearsay statements. The State, however, calls our attention to a parenthetical statement found in footnote 9 of Crawford: "The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985)). ¶17 Discretion is abused only if the trial court's "decision is manifestly unreasonable or is based on untenable reasons or grounds." State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003) (citing Stenson, 132 Wn.2d at 701). A confrontation clause challenge is, on the other hand, reviewed de novo. State v. Price, 158 Wn.2d 630, 638-39, 146 P.3d 1183 (2006). Our decision that a hearsay ruling was reasonable does not preclude deciding the statement was intended to establish a fact and that it was reasonable to expect it would be used in a prosecution or investigation; in other words, that it was testimonial. However, because we adopt the doctrine of waiver by forfeiture below, we find it unnecessary to decide whether the statements reported by Detectives Berberich, Malins, and Roze were testimonial. Furthermore, as we discuss below, any of the errors Mason claims were harmless. Mason either forfeited his confrontation objection with regard to Santoso or the error was harmless. Linda Webb ¶18 Finally, Mason challenges the testimony of Linda Webb, a domestic violence victim's advocate, who testified that while she helped Santoso form a safety plan, he was reluctant and afraid. She repeated Santoso's statements following Mason's release from jail: Santoso said he believed Mason would kill him and begged for the safe haven of jail. Webb reported Santoso's statement that he felt threatened because of Mason's family relationship with a police officer. She reported that he based this belief on his experience in Indonesia. She explained that Santoso said he could not relocate because his family in Indonesia depended on his earnings; he could not risk losing his job and thus starving his family. ¶20 Santoso's statements were made outside the context of an emergency. He met with Webb six days after the assault and called her a couple days after that, when Mason was released from jail. Santoso was certainly afraid and certainly sought protection. However, he did not describe events as they happen "to resolve the present emergency." Davis, 126 S. Ct. at 2276. His statements were not "a call for help against [a] bona fide physical threat." Id. These statements would be viewed by an " 'objective witness' " as " 'available for use at a later trial.' " Crawford, 541 U.S. at 52 (quoting Br. for Nat'l Ass'n of Criminal Defense Lawyers et al. as Amicus Curiae at 3). ¶21 The State has conceded, and we agree, that Corporal Haslip's statements were testimonial. We also find that many of the statements Santoso made to Linda Webb were testimonial. The State urges, however, that Mason forfeited his right to confront Santoso when he intentionally procured Santoso's absence by murdering him. Mason cannot, the State contends, complain of the natural result of his actions. If he wanted to confront Santoso, he should not have killed him. This doctrine, called "forfeiture by wrongdoing," has received elevated attention since Crawford but is an issue of first impression in this state. FORFEITURE BY WRONGDOING ¶23 Every federal circuit has adopted the forfeiture doctrine, as have 21 states. The Supreme Court provided an explanation for the recent emergence of this doctrine. "The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the 'reliability' of ex parte statements more easily than they could show the defendant's procurement of the witness's absence." Davis, 126 S. Ct. at 2280. ¶24 Justice Antonin Scalia has explained that the forfeiture doctrine is grounded in equity. "[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds." Crawford, 541 U.S. at 62. The high court reiterated its approval of the doctrine in Davis, remanding Hammon v. State, 829 N.E.2d 444 (Ind. 2005), to the Indiana courts to consider, if appropriate, the application of the doctrine. "The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious." Davis, 126 S. Ct. at 2280. ¶25 The doctrine is older than Crawford; the Supreme Court approved of it in the 1878 case of Reynolds v. United States, 98 U.S. (8 Otto) 145, 158, 25 L. Ed. 244 (1878). More recently, and more bluntly, an appellate court in Connecticut defended the doctrine with the quip, " '[t]hough justice may be blind it is not stupid.' " State v. Henry, 76 Conn. App. 515, 533, 820 A.2d 1076 (2003) (quoting State v. Altrui, 188 Conn. 161, 173, 448 A.2d 837 (1982)). ¶26 We agree that equity compels adopting the doctrine of forfeiture by wrongdoing. In this case, we will not allow Mason to complain that he was unable to confront Santoso when Mason bears responsibility for Santoso's unavailability. Mason made his right impossible to implement; he has only himself to blame for its loss. ¶27 Alternatively, Mason argues for a narrow application of the forfeiture by wrongdoing doctrine. Mason argues a forfeiture is equal to a waiver and thus he cannot lose his right of confrontation unless he knowingly and intelligently waives it. Therefore, he reasons, those who obtain witnesses' absences for a reason other than to prevent their testimony have not knowingly and intelligently waived their confrontation rights and thus evade the rule of forfeiture. ¶28 The rule of forfeiture is distinct from waiver. Forfeiture is grounded in equity—the notion that people cannot complain of the natural and generally intended consequences of their actions. Specific intent to prevent testimony is unnecessary. Knowledge that the foreseeable consequences of one's actions include a witness' unavailability at trial is adequate to conclude a forfeiture of confrontation rights. The finding of a specific intent to keep a witness from testifying argued by Mason is more than is warranted by the "equitable" grounds upon which the rule is based. ¶29 The rule of forfeiture does require a finding of fact that the defendant's conduct prevented the witness' testimony. The State advocates a preponderance of the evidence standard for proof of that finding of fact. As the State points out, the trial judge is the gatekeeper, and standard pretrial evidentiary determinations employ the preponderance standard. Many critical evidentiary determinations, including those involving core constitutional rights, are made by trial judges based upon the preponderance standard. A majority of the courts that have adopted forfeiture by wrongdoing apply the preponderance standard. However, the issue of forfeiture by wrongdoing is unique in that the trial judge must often rule on the ultimate question: did the accused kill the alleged victim? There is a debate as to whether or not forfeiture by wrongdoing permits bootstrapping. ¶30 New York concluded that forfeiture of the right of confrontation warrants a more exacting standard of proof, adopting the clear, cogent, and convincing standard. People v. Geraci, 85 N.Y.2d 359, 367, 649 N.E.2d 817, 625 N.Y.S.2d 469 (1995). The high court of New York observed that "a defendant's loss of the valued Sixth Amendment confrontation right constitutes a substantial deprivation." Id. Although, as the State points out, standard pretrial evidentiary determinations employ the preponderance standard, we conclude the stakes are simply too high to be left to a mere preponderance standard. We agree with New York and adopt the minority view. We hold, in deciding whether to apply the doctrine of forfeiture by wrongdoing, the trial court must decide whether the witness has been made unavailable by the wrongdoing of the accused based upon evidence that is clear, cogent, and convincing. We recognize that this is not an easy standard to meet, but the right of confrontation should not be easily deemed forfeited by an accused. ¶31 We conclude Mason was responsible for Santoso's unavailability by clear and convincing evidence, and thus he forfeited his right to confront Santoso. HARMLESS ERROR ¶33 Any confrontation clause error is harmless in this case. Everything Santoso said to the police he said to others, including his roommate Dean Andersen, his supervisor Lisa Schulke, his treating physician Dr. Gregory Gross, and his sister Nina Kandiani. The jury heard his account of the attack, his fear for his life, and his concern for his family in Indonesia from these sources. Had the jury not heard these statements from the police, they would still have heard them from multiple other sources whose testimony Mason does not challenge. Further, DNA evidence linking Mason to the crime scene, his obvious motive, and the testimony of Madrid were untainted and overwhelming. Any error in the admission of these statements was harmless. INFORMING THE JURY ABOUT THE DEATH PENALTY ¶34 During voir dire, the judge instructed the jury venire members about their obligation to apply the law as directed by the court. The trial judge was concerned that a juror who opposed the death penalty might disqualify him or herself on those grounds and that the loss of such jurors would be a disadvantage to the defense. After discussion with counsel, the judge composed the answer he would use if a juror were to ask about the death penalty. He commented, "[i]t was my belief when we first started to have these discussions, and it's even more firmly my belief now, that to not inform the jury that this is not a death penalty case, in my view, would be prejudicial to the defense." RP (Apr. 1, 2003) at 10. The court expressed the view that people who would opt off a jury panel because they oppose the death penalty would be naturally prodefense. Therefore, he concluded that failing to inform the jury about the death penalty, if someone inquired, would prejudice Mason. ¶35 When the judge announced that he intended to disclose to the venire that the Mason case did not involve the death penalty, defense counsel objected, stating, "I think that in light of the prevailing case law, the defense needs to object, understanding that we will essentially defer to the Court on this matter." Id. at 7. In response, the judge asked defense counsel how his proposed answer would prejudice the defense, saying, "[a]nything you can help me with, I would certainly appreciate it. I have been thinking about this a lot, as I've told you, over the months as we have been leading up to this moment." Id. Defense counsel responded that he could "come up with a reason" but that he did not know if it would be very "compelling." Id. He suggested there was a "possibility" a jury may be more likely to convict a defendant if it knows that the defendant will not be put to death, but counsel admitted that he did not think that was a particularly compelling reason. Id. at 8. ¶36 The court then asked whether any of the jurors would be unable to enforce or apply the law as instructed. One particular juror responded, "If it were the death penalty. I don't support the death penalty. I would have a hard time with that." Id. at 31. The judge responded: You should not concern yourselves with what penalty may be administered in the event the jury reaches a finding of guilty, except that the fact a penalty may follow conviction should make you careful. In response to [the juror's] statement, I will respond by informing you that this is not a capital case. In other words, this case does not involve a request for the death penalty. The jury will not be involved in any way in determining any sentence which may be imposed, in the event that a jury reaches a verdict of guilty. Aside from that consideration, would anybody find themselves in a position where they might not be able to apply the law as instructed, if you found yourself thinking that it might be changed somewhat? [No response.] All right. Thank you. Id. at 32-33. Defense counsel did not object to any juror nor make any motions based upon the court's informing the jury that the case did not involve the death penalty. This strict prohibition against informing the jury of sentencing considerations ensures impartial juries and prevents unfair influence on a jury's deliberations. The only exception that allows juries to know about sentencing consequences is in a death penalty trial, and even then the jury is to consider the penalty only after a determination of guilt. The State argues, however, that a failure to inform the jury that the death penalty is not involved will unfairly prejudice the prosecution since some jurors may always vote to acquit or opt out if they fear the death penalty may be involved. The converse could also be argued just as well: if jurors know that the death penalty is not involved, they may be less attentive during trial, less deliberative in their assessment of the evidence, and less inclined to hold out if they know that execution is not a possibility. Rather than giving jurors information about the penalty in a noncapital case, we believe that voir dire should be used to screen out jurors who would allow punishment to influence their determination of guilt or innocence and then, through instructions, jurors should be advised that they are to disregard punishment. This process should satisfy the concerns raised by the State. We see no reason to create an exception for noncapital murder cases. Townsend, 142 Wn.2d at 846-47. If this court was incorrect in Townsend then, upon a proper record, our decision should be challenged in a truly adversarial proceeding. If our reasoning was flawed in Townsend, and there are legitimate strategic and tactical reasons why informing a jury about issues of punishment would advance the interest of justice and provide a more fair trial, then counsel should zealously advance the arguments. In the present case, counsel for Mason objected; it was error for the trial judge to inform the jury that the death penalty was not implicated. However, we note defense counsel's objection was, at best, lukewarm, and the record suggests that defense counsel may have encouraged rather than discouraged the judge. Further, no objection was advanced to the selection of any juror or to the panel. On this record, we find the error harmless. EXCLUSION OF EXPERT TESTIMONY ¶38 Mason argues the trial court erred by excluding a defense expert's assertion that 30 percent to 80 percent of the public cannot be excluded as potential contributors to the genetic material found in a mixed blood sample. The State's expert examined a mixed blood sample taken from Santoso's car. His analysis established two strands of DNA; one was identified as the victim's. The State's expert testified that the statistical probability the second strand of blood found in Santoso's car belonged to someone other than Mason was one in several trillion. The State alleged that defense expert witness, Dr. Randell Libby, was prepared to testify that 30 percent to 80 percent of the population were possible matches in any given "mixed-DNA sample" (where multiple samples of blood are found, for example). The State challenged this opinion, and only this opinion, as unsupported. ADMISSION OF OPINION TESTIMONY REGARDING MASON'S GUILT ¶41 We disagree. "Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." ER 704. See also State v. Baird, 83 Wn. App. 477, 485, 922 P.2d 157 (1996). Dr. Harruff did not testify that Mason was guilty of murder; he simply opined that Santoso had sustained life-threatening wounds. His testimony and the certificate itself were properly admitted. ADMISSION OF EVIDENCE OF PRIOR BAD ACTS ¶42 Mason challenges the admission of a variety of evidence, arguing they were improperly admitted as evidence of prior bad acts in violation of ER 404(b). ¶46 Mason argues a single passage of a book he owned titled, The Ancient Art of Strangulation, blown up and presented to the jury, was improperly admitted. The section described the author's opinion that there exists an "innate intimacy" in asphyxiation and that it is "associated" with the sex act. Mason argues these passages prejudiced him to the extent they tended to show he was someone who would take extreme acts for sexual satisfaction. The State does not suggest any probative value specific to these passages. Instead, it argues the book's discussion of strangulation and murder are evidence of premeditation. It is not apparent how premeditation is demonstrated by passages in a book explaining the sexual aspects of strangulation; at best this suggests motive and, as Mason points out, the State did not argue a sexual motive compelled the murder. ¶47 However, the trial record indicates Mason objected to the State's introduction of fingerprint evidence on these and other pages, but not to the introduction of the pages themselves. Mason has failed to preserve his objection. ¶48 In his petition for review, Mason seems to object to the admission of evidence demonstrating he was not truthful on certain employment and financial forms. Mason makes no specific arguments. Instead, he provides generic analysis of evidence law and the standard of appellate review, then lists the various evidence, all of which he claims were improperly admitted. Insofar that Mason argues that the evidence should not have been admitted, the argument is raised for the first time in his petition. Mason offers no arguments and cites no authority; he does not identify which specific evidence he is appealing nor does he explain how he was prejudiced by its admission. INSUFFICIENT EVIDENCE MASON COMMITTED MURDER IN THE COURSE OF A BURGLARY FAILURE TO INCLUDE AGGRAVATING FACTORS IN THE "TO CONVICT" INSTRUCTIONS CONCLUSION ¶55 We affirm the conviction of Kim Heichel Mason for the reasons stated above. BRIDGE, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur. ¶56 ALEXANDER, C.J. (concurring in result) -- Although I concur with the result the majority reaches, I write separately to express the view that the doctrine of forfeiture by wrongdoing should not be adopted by this court, particularly in a factual circumstance such as we have here. In that regard, I agree with Justice Sanders's conclusion that where the alleged conduct that rendered the declarant-victim unavailable forms the factual basis for the charge against the defendant, the doctrine should be eschewed. Dissent at 3. For a trial court to determine, during the trial, that the defendant has committed the charged crime, albeit by a standard less than "beyond a reasonable doubt," is offensive to the presumption of innocence that must prevail throughout the trial. In Washington, judges regularly instruct jurors to "keep an open mind and not decide any issue in the case until it is submitted to [them] for [their] deliberation." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 1.01, at 5 (2d ed. 1994). Trial judges should not be held to a lesser standard. ¶57 I concur in the result here, though, because everything Hartanto Santoso said to Detectives John Berberich, Anne Malins, and Kristi Roze, as well as to Linda Webb, he said to other persons who testified at trial. Consequently, the confrontation clause error is harmless. C. JOHNSON, J., concurs with ALEXANDER, C.J. ¶58 SANDERS, J. (dissenting) -- Because Kim Mason's confrontation rights were violated by the introduction of statements purportedly made by Hartanto Santoso, because the majority adopts and applies the doctrine of forfeiture by wrongdoing, and because it was not harmless error for the trial judge to inform the jury that the case did not involve the death penalty, I dissent. (1) The Admission of Out-of-Court Statements Violated Mason's Right To Confrontation ¶59 The trial court admitted the testimony of four police officers and a victim's advocate regarding statements Santoso allegedly made prior to his disappearance. Under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), testimonial statements must be subject to confrontation. The majority, after determining Corporal John Haslip's statements and certain statements made by Linda Webb are testimonial ¶60 If admittance of just one of these statements is not harmless, reversal is required. For an error to be harmless "it must appear beyond a reasonable doubt that the error did not contribute to the ultimate verdict." State v. Williams, 158 Wn.2d 904, 917, 148 P.3d 993 (2006). Applying this stringent standard to the present facts, we cannot conclude that the admittance of the officers' testimony was harmless beyond a reasonable doubt simply because other witnesses' testimony overlapped in subject matter with that of the officers. ¶61 Testimony from a law enforcement officer will likely impact a juror differently than if identical information is conveyed through the relative of a victim. Juries routinely consider all characteristics of witnesses (their relation to the parties, employment, and personal interests) in weighing the value or credibility of their testimony—that is, in fact, the purpose of a jury trial and why appellate courts defer (with regard to factual conclusions) to the judgment of the fact finder. ¶62 Because this court considers only the written record and is not privy to the expressions, demeanor, and body language of the witnesses, we are in no position to predict the effect such characteristics might have had on the jury's decision-making, and we certainly may not presume which witnesses' testimony the jury found compelling and which testimony tipped the balance in favor of a particular outcome. See State v. Robinson, (2) Application of the Doctrine of Forfeiture by Wrongdoing Is Inappropriate ¶63 As the majority notes, whether or not to adopt the doctrine of forfeiture is an issue of first impression for this court. The majority ultimately concludes "equity compels adopting the doctrine" and states, [W]e will not allow Mason to complain that he was unable to confront Santoso when Mason bears the responsibility for Santoso's unavailability. Mason made his right impossible to implement; he has only himself to blame for its loss. Majority at 14-15. The majority's subsequent observation that the doctrine of forfeiture by wrongdoing necessarily requires the trial judge to "rule on the ultimate question: did the accused kill the alleged victim?" explains, quite succinctly, my hesitation in adopting such a rule. Majority at 16. ¶64 Under facts such as these (where the conduct rendering the declarant-victim unavailable is the very crime charged), the court must assume the defendant's guilt prior to trial, an assumption which offends the presumption of innocence imbedded in our state and federal constitutions. See State v. Crediford, 130 Wn.2d 747, 759, 927 P.2d 1129 (1996) ("[E]very person accused of a crime is constitutionally endowed with an overriding presumption of innocence, a presumption that extends to every element of the charged offense.") (citing Morissette v. United States, 342 U.S. 246, 275, 72 S. Ct. 240, 96 L. Ed. 288 (1952)). For this reason, both state and federal courts have refused to apply the doctrine of forfeiture by wrongdoing to cases where the defendant is charged with the very same conduct that allegedly caused the unavailability of the witness; scholars have referred to such a phenomenon as "reflexive forfeiture." See Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 ISR. L. REV. 506, 521-22 (1997) ("Suppose that the conduct that rendered the declarant-victim unavailable, rather than occurring at some time after the crime charged, was the crime charged. . . . In such a case, for the court to conclude that the accused committed the act rendering the declarant-victim unavailable, the court must also conclude that the defendant committed the criminal act charged, because those two acts are the same." (emphasis added)). ¶65 In State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), the defendant was charged with sexual assault of a child. The State argued the defendant waived his right to confront the minor victim by intimidating her and threatening to punish her if she told anyone about the abuse. Id. at 699. But the court refused to hold the defendant had waived his right to physical confrontation, noting that the cases cited by the State involved defendants "scheming to obstruct justice by tampering with a witness after the crime in question had occurred . . . ." Id. The court distinguished such cases from the situation at bar where the defendant had threatened the victim "during the commission of the very crimes with which he is charged." Id. The court concluded, The constitutional right of confrontation would have little force . . . if we were to find an implied waiver of that right in every instance where the accused, in order to silence his victim, uttered threats during the commission of the crime for which he is on trial. Id. ¶66 Similarly, in People v. Maher, 89 N.Y.2d 456, 677 N.E.2d 728, 654 N.Y.S.2d 1004 (1997), the defendant was convicted of intentional murder, felony murder, and criminal contempt. Although New York had recognized the doctrine of forfeiture by wrongdoing, the court refused to apply it to the present facts, as application of the rule "would require the trial court . . . to decide the ultimate question for the jury in the same case, i.e., whether the defendant caused the victim's death." Id. at 462 (footnote omitted). ¶67 United States v. Lentz, 282 F. Supp. 2d 399 (E.D. Va. 2002), aff'd in part, rev'd in part on other grounds, 383 F.3d 191 (4th Cir. 2004), presents facts similar to the case at bar. In Lentz the defendant was charged in a three-count indictment for kidnapping resulting in the death of Dorris Lentz. Id. at 409. Ms. Lentz's body was never found. Id. The government sought to introduce statements of several witnesses who had conversations with Ms. Lentz regarding Ms. Lentz's fear of the defendant and defendant's prior threats and abuse. Id. The government argued the forfeiture by wrongdoing exception applied to all of Ms. Lentz's statements because the defendant had "procured the unavailability of Ms. Lentz by killing her." Id. at 426. The court, however, recognizing the illogic of applying the exception, observed, Essentially, the Government asks the Court to find Defendant guilty of killing Ms. Lentz by a preponderance of the evidence in order to allow the evidence to be admitted to prove Defendant killed Ms. Lentz beyond a reasonable doubt. Id. The court concluded that applying the exception would ignore the well-settled presumption of innocence and "deprive a defendant of his right to a jury trial [by] allow[ing] for a judge to preliminarily convict a defendant of the crime on which he was charged." Id. (emphasis added). It makes no sense for the evidentiary rules of trial to depend upon the court's pretrial determination of the defendant's guilt or innocence. ¶68 Here, unfortunately, the majority's adoption of a "clear and convincing" standard (as opposed to a preponderance of the evidence standard) does not cure the general illogic of the doctrine of forfeiture by wrongdoing. I would refrain from applying the doctrine to the present facts because doing so invades the province of the jury by forcing the judge to determine Mason's guilt prior to his trial. (3) It Was Not Harmless Error for the Trial Judge To Inform the Jury that Mason's Case Did Not Involve the Death Penalty ¶69 During voir dire the trial judge informed the jury that Mason's case did not involve a request for the death penalty. The majority determined, "it was error for the trial judge to inform the jury that the death penalty was not implicated" but concluded the error was harmless. Majority at 22-31. The majority provides an incoherent explanation of its determination, stating, [W]e note defense counsel's objection was, at best, lukewarm, and the record suggests that defense counsel may have encouraged rather than discouraged the judge. Further, no objection was advanced to the selection of any juror or to the panel. On this record, we find the error harmless. Majority at 22. ¶70 In State v. Townsend, 142 Wn.2d 838, 840, 15 P.3d 145 (2001), we held it is error to inform the jury during voir dire that a case does not involve the death penalty. Townsend states, "[t]his strict prohibition against informing the jury of sentencing considerations ensures impartial juries and prevents unfair influence on a jury's deliberations." Id. at 846. See also State v. Reece, ¶71 Capital punishment is an issue both morally divisive and politically charged; as such, this is not an instance where it is either prudent or just to speculate as to whether the judge's instruction influenced the outcome of Mason's trial. In fact, if anything should leave us hesitant (or unwilling) to guess how a juror will react to certain information, it is the mention of capital punishment. The majority's reasons for holding otherwise are neither clear nor coherent. ¶72 For this, and the reasons stated above, I dissent and would reverse Mr. Mason's conviction. MADSEN, J., concurs with SANDERS, J.