IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

EDWARD M. LEAVENS,

Appellant.

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No. 38909-0-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, C.J. — Edward M. Leavens appeals his conviction for first 

degree assault—domestic violence. He argues the trial court violated his constitutional 

rights by commenting on the evidence and depriving him of his rights to present a 

defense, to an impartial jury, to self-representation, and to confront a witness. He 

additionally argues the State failed to preserve material exculpatory evidence, and he 

raises a cumulative error argument as well as numerous arguments in a lengthy statement 

of additional grounds for review (SAG). We disagree with his arguments and affirm.

FACTS

Edward Leavens and his stepbrother Ronald Leavens lived with their mother, 

Georgeina Annis, in her Spokane Valley house.1 At the time of the events discussed 

 

1 Because the brothers share the same last name, for clarity, we refer to Ronald 

Leavens as Ronald and defendant Edward Leavens as Leavens. We mean no disrespect.

FILED

JUNE 20, 2024

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 38909-0-III

State v. Leavens

2

below, Ms. Annis was 75 years old, retired, and suffered from dementia. From the time 

Ms. Annis acquired the home, Leavens lived in a bedroom on the main floor. Ronald 

moved into the basement in 2021, after separating from his wife. 

The morning of September 9, 2021, Ronald left the house and did not return home 

until later that afternoon. When he returned, he noticed that Leavens was intoxicated, 

giving their mother a hard time, and limping from a knee injury. Leavens asked Ronald 

to buy alcohol for him because Rite Aid drug store employees had refused to sell alcohol 

to him because he was intoxicated. Ronald agreed. The two went to Rite Aid, where 

Ronald purchased a bottle of whiskey for his brother.

When they arrived back home, Leavens fell out of the car and Ronald helped him 

to his bedroom. Ronald heard his brother snoring, and assumed he would sleep for the 

rest of the night. On his way out to the shed to hide the bottle of whiskey from Leavens, 

Ronald noticed his mother lying in bed and watching television. Once in the shed, 

Ronald hid the whiskey, smoked cannabis, and fell asleep. 

Around 3:00 a.m., Ronald awoke and walked toward the house. The inside house 

lights were on, which he thought was strange. As he opened the back door to the house, 

he saw water cascading down the steps. Once inside, he noticed the sink faucets were on, 

the sink was plugged with a rag, and the water was gushing over the counter onto the 

floor. 
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3

Ronald then noticed his mother sitting in the living room, unresponsive, with 

lacerations on her head and her wig missing. Blood covered her shirt and the walls. He 

also saw Leavens’ roofing hammer on the floor. Ronald looked through the house for an 

intruder. He checked his brother’s room and noticed he was gone and his bed was made. 

Ronald then returned to his mother and called 911. 

When Spokane County sheriff’s deputies arrived, they noticed the living room in 

disarray, blood everywhere, water covering the floor, and Ms. Annis profusely bleeding 

from her head. The deputies saw Ronald providing aid to his mother and separated him 

so they could render aid. Ronald was shaken. The deputies later noticed the hammer 

with blood on it near the front door. 

Ms. Annis was transported to the hospital and taken into surgery to treat multiple 

lacerations, contusions, hemorrhages, and massive swelling of her brain. A portion of her 

skull was caved in and had to be removed. She survived her injuries.

Law enforcement interviewed Ronald at the sheriff’s office and tried to locate 

Leavens. Three or four days later, Leavens, who still had not returned home, contacted 

Ronald’s estranged wife, seeking money and clothing. Once Ronald learned of this, he 

called his brother and confronted him about assaulting their mother. Leavens did not 

deny assaulting her and said he felt bad about it. 
No. 38909-0-III

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4

On September 17, law enforcement worked with Ronald’s estranged wife for her 

to arrange a meeting with Leavens in a public location so they could arrest him. When 

Leavens approached the meeting place, he saw law enforcement and fled, but was 

quickly captured. Once in custody, Leavens told officers he was not guilty of assaulting 

his mother and that Ronald was the “‘mastermind’” behind the attack. Rep. of Proc. 

(RP) (Apr. 5, 2022) at 401-02.

Video-recorded interview of Leavens

The day of his arrest, Spokane County Sheriff’s Office Detectives Dean Meyer 

and Nathan Bohanek conducted a video-recorded interview of Leavens. Leavens waived 

his Miranda

2

rights. He began the interview by blaming Ronald. He described Ronald 

as a drug user who forced himself into their mother’s house and constantly asked her for 

money. 

Leavens described his actions prior to and after the assault. He said that on 

September 9, he began the day riding his bike around town. He took the bus to Northern 

Quest Casino in the afternoon, where he used his player’s card to gamble. He said he had 

two drinks while he gambled and then went to the casino bar where he drank two beers. 

He said he left the casino and went to Winco in Spokane Valley around 9:30 p.m. 

There he purchased two 16-ounce beers and talked with a customer service employee he 

 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 38909-0-III

State v. Leavens

5

knew. He then rode his bike home, where he encountered Ronald. He thought Ronald 

was hiding something and thought perhaps he had been badgering their mother for 

money. Leavens said he then went to his room, drank one beer, used his computer, and 

then went to sleep. 

Leavens said he awoke and heard Ronald “gaslighting” their mother and trying to 

make her angry with him (Leavens). Ex. P2, at 27 min., 25 sec. through 28 min., 12 sec. 

Their mother then began yelling at him (Leavens), calling him lazy and a “prick,” and 

then lost interest and went to bed. Ex. P2, at 28 min., 15 sec. through 28 min., 45 sec. 

Leavens said he then went back to sleep, but later awoke to noises and what sounded like

Ronald pulling their mother into his (Leavens’) bedroom. At this point, Leavens realized 

he was unable to move and felt like he was on an anesthesia drug. He claimed Ronald 

poured something in something he drank, perhaps Rohypnol. Leavens suggested the

detectives should test his hair for the presence of drugs. Later in the interview, Leavens 

suggested that Ronald had drugged his beer. 

Leavens said he heard Ronald yelling and laughing throughout the night. At some 

point, he heard Ronald yell, “He’s got his hatchet.” Ex. P2, at 36 min., 10 sec. Leavens 

said he had a roofing hammer in his bedroom, which he described as similar to a hatchet. 

He later told the detectives that he kept the roofing hammer in his bedroom closet, but 
No. 38909-0-III

State v. Leavens

6

that Ronald had taken it. Near the end of the interview, he claimed Ronald had placed 

the hammer on his bed and tried to put it into his hand while he was unconscious. 

Leavens said when he awoke, he found his mother with blood on her face, 

scrubbing her blood off the floor with a cleaning product. He thought she had a cut 

above her eye. She looked at him, asked him, “Why, why, why?,” declined his offer to 

help, and told him to leave. Ex. P2, at 38 min., 20 sec. through 38 min., 30 sec. He then 

grabbed his belongings and left. He denied seeing Ronald when he left and said he did 

not think to call 911 because he did not realize how badly his mother was injured. 

Leavens said he then went to Mission Park, where he slept all day and the next 

night. Sometime after he awoke on September 11, he saw Patricia Snarr. He went with 

Ms. Snarr to Winco, where he purchased alcohol and beers. The pair then went to Ms. 

Snarr’s apartment where they drank together. 

Leavens claimed that Ms. Snarr could confirm he did not change his clothes and 

there was no blood on them. However, he admitted buying new socks and did not deny 

purchasing new shoes. Later, he said his old shoes and socks might be at Ms. Snarr’s 

house but then claimed he never changed his socks and shoes. He said he then camped in 

a tent for the next few nights. 

Leavens denied going to Rite Aid in the hours before the assault but when the 

detectives confronted him with surveillance video, witness reports, and a store receipt, he 
No. 38909-0-III

State v. Leavens

7

admitted asking Ronald to drive him there to purchase whiskey. At the conclusion of the 

interview, Leavens said, “Well if I did do this, I don’t remember anything, and Ron . . . 

orchestrated everything.” Ex. P2, at 1 min., 50 sec.

After the interview, the detectives investigated Leavens’ story. They located his 

campsite and tent, and after obtaining a search warrant, looked inside the tent and found 

alcohol and an open box of mustache and sideburn coloring. The detectives reviewed the 

casino’s records and learned that Leavens had not used his player’s card to gamble in the 

hours before the assault, as he had claimed. On October 27, more than one month after 

the interview, Detective Meyer collected a sample of Leavens’ hair to test for the 

presence of drugs. 

The detectives also seized Leavens’ cell phone and reviewed its location data. 

Investigation showed the cell phone did not connect to a cell tower near the casino on the 

day of the assault. Instead, the cell phone connected to a cell tower near Ms. Annis’ 

house throughout the day of September 9, and moved away from the house at 10:54 p.m. 

that evening. At 11:11 p.m., the phone connected near where the detectives had found 

Leavens’ campsite.3

 

3 The location data, combined with the jury’s guilty verdict, suggests the attack 

occurred before 11:00 p.m. on September 9, 2021.
No. 38909-0-III

State v. Leavens

8

DNA testing revealed the presence of Leavens’ and his mother’s DNA on the 

hammer. Ronald’s DNA was not detected on the hammer. 

Pretrial procedure

In October 2021, the State charged Leavens with first degree assault and alleged 

both a deadly weapon and a domestic violence enhancement. At a pretrial hearing two 

months later, Leavens told the court he wanted to represent himself and he was ready for 

trial. Later that month, the trial court granted Leavens’ motion to discharge his public 

defender and represent himself. During this hearing, the prosecutor explained that the 

hair follicle testing would not be complete before the end of January 2022. The court 

proposed January 24, 2022 as the trial date, but cautioned Leavens that the test results 

would likely not be ready by that date. The court asked Leavens if he would be willing to 

move forward without the test results, and Leavens replied that he would. The court set 

trial for January 24. 

January 3, 2022 readiness hearing

At the January 3, 2022 readiness hearing, Leavens told the court he was ready 

for trial, but complained the State had not provided him with discovery about Ronald. 

Despite this, Leavens declined a continuance and insisted he was ready for trial on 

January 24 if he received the evidence to be used against him. The court told Leavens he 
No. 38909-0-III

State v. Leavens

9

needed to file any pretrial motions or motions in limine as soon as possible, and that it 

planned to hear any motions on January 20. 

Leavens then explained he had prepared a witness subpoena list, but he was unable 

to get the addresses of his witnesses because law enforcement took his cell phone. The 

court responded:

THE COURT: Sir, we will have to see how you can get those 

subpoenas to the court. Your affidavit needs to indicate what is the 

importance of each one of these witnesses you’re requesting for trial is. If 

it’s not clear from what you filed, then you may have to be brought to court 

to address those subpoenas before they just get blanket signed and sent out 

for service.

. . . . 

THE COURT: The more information that you can put in your 

affidavit for that subpoena, request for subpoena, that indicates what this 

witness knows and why they’re important for trial, the better.

RP (Jan. 3, 2022) at 30.

Leavens agreed, then asked the court whether it received his motion for dismissal. 

The court denied seeing the motion and explained to Leavens that he needed to serve the 

prosecutor’s office, that the clerk’s office would not serve the motion for him, and that he 

needed to note the motion for a hearing. Leavens indicated he understood and again 

confirmed he was ready for trial on January 24. 
No. 38909-0-III

State v. Leavens

10

On January 18, the State filed and sent its witness list to Leavens. The next day, 

Leavens filed his subpoena list entitled “Witness Compulsory Process List.” Clerk’s 

Papers (CP) at 66-68. Patricia Snarr’s name was not on this list. 

January 20, 2022 pretrial hearing

On January 20, the trial court held a hearing to entertain pretrial motions. The 

court first explained that, due to a COVID-19 resurgence, it was suspending jury trials for 

three weeks. The court continued Leavens’ trial to February 7. Turning to the pretrial 

motions, the court asked Leavens if he was ready to proceed with the State’s motions or 

if he needed more time. Leavens stated he needed one week or less to review the 

motions, so the court continued the hearing to January 27. 

The prosecutor alerted the court that Leavens had been attempting to contact the 

State’s witnesses in violation of a court order. The prosecutor explained she had sent 

Leavens a list of names he was prohibited from contacting. Leavens denied receiving the 

State’s list and explained he had not made any successful telephone calls because he had 

no money and nobody answered his calls. He asked to be released from jail, complaining 

that he was only given two hours to review discovery and was unable to adequately 

defend himself. The court recommended he make his request in a motion to be heard the 

following week. Leavens never filed such a motion.
No. 38909-0-III

State v. Leavens

11

January 27, 2022 continued pretrial hearing

On January 27, the clerk’s office received and filed Leavens’ second compulsory 

process witness list. The list, dated January 18 by Leavens, listed additional witness 

names, including Patricia Snarr. Also that day, the clerk’s office received and filed 

Leavens’ motion to dismiss for a speedy trial violation. The motion included a note for 

hearing dated January 8, setting a hearing for January 13, dates that had already passed.

At the start of the continued pretrial hearing, the prosecutor noted that Leavens 

appeared with no paperwork, no writing implements, and no ability to take notes. The 

prosecutor suggested that Leavens did not come prepared on purpose, to which Leavens

responded he was not informed of the nature of the hearing and had no notice of it. 

Leavens told the court he read the State’s motions and was prepared to discuss them and 

his own motion. 

The prosecutor, again, stated her concern that Leavens did not have any materials 

with him and asked whether he was still representing himself. The court asked Leavens 

if he intended to continue pro se, to which Leavens replied he did not want standby 

counsel and was ready for trial. Leavens complained he had only been allowed to look at 

discovery for an hour and had not been granted any law library time. When Leavens 
No. 38909-0-III

State v. Leavens

12

requested that the video-taped interview of Ronald4 be admitted as evidence, the court 

replied that a lawyer could assist him with his request and noted, “I can’t walk you 

[through] that process.” RP (Jan. 27, 2022) at 33.

Leavens also asked the court about the status of his compulsory witness lists. He 

said he struggled to contact people from the jail because he had no telephone, no 

telephone book, and no investigator. The court told him an attorney could assist with his 

requests and expressed confusion whether Leavens actually was ready for trial. The court 

asked Leavens to “send me one signal or the other,” “either you’re ready or you’re not 

and it’s up to you to make that call.” RP (Jan. 27, 2022) at 39. Leavens again stated, 

“I’m ready to go to trial.” RP (Jan. 27, 2022) at 39. The court told Leavens to continue 

to think about it and asked him to discuss his motion to dismiss. After brief argument by 

the parties, the court denied Leavens’ motion to dismiss. 

The court then heard the State’s CrR 3.5 motion. After testimony from Detectives 

Bohanek and Meyer, and Leavens, the court admitted the statements Leavens made 

during his arrest and his recorded interview. 

After a recess, the court heard the State’s motions in limine. The prosecutor 

explained her confusion with Leavens’ statements that he was ready for trial but also that 

 

4 The video recording of Ronald’s interview with law enforcement is not in the 

record, is not included in the proposed list of exhibits, and was not introduced during 

trial. 
No. 38909-0-III

State v. Leavens

13

he needed assistance preparing his case. The court told Leavens, if he wanted anything, 

he needed to make a motion or request. 

The prosecutor then discussed Leavens’ desire to subpoena witnesses. She 

explained the State would provide Leavens with blank subpoenas and ensure they were 

forwarded to the sheriff’s office for service. Leavens agreed to this arrangement.

Leavens then requested an investigator to help trace a COVID-19 relief fund check 

he believed was cashed by Ronald and evidenced Ronald’s motive to assault their 

mother. The prosecutor added that a detective would look into that information as a part 

of the State’s obligation to provide potentially exculpatory information to Leavens. She 

noted she arranged for Leavens to interview a few of the State’s witnesses, even though 

he had not provided a list of witnesses he wanted to interview. She also indicated she 

would try to secure Leavens clothing for trial. 

February 2, 2022 pretrial motion hearing

On February 2, the parties appeared for another pretrial hearing. The prosecutor 

told the court she received a message, dated January 24, from Leavens requesting standby 

counsel. She again complained about Leavens contacting the State’s witnesses. She 

explained that Leavens had interviewed four of the State’s witnesses, asked very few 

questions, and instead was telling the witnesses his theory of his case. She also told the 

court that Leavens had not identified any witnesses he needed to interview. 
No. 38909-0-III

State v. Leavens

14

After the court asked Leavens about his request for standby counsel, Leavens 

responded:

You know, I’m ready to go into trial with what we have as evidence and 

what I’ve gathered from collected evidence at the scene. I’m very 

confident. What I—only reason I wanted stand-in counsel was for 

procedure, making sure I got what I needed at trial.

RP (Feb. 2, 2022) at 8. In response to the prosecutor’s comments about witnesses, 

Leavens told the court he would like to interview every single witness but did not want a 

continuance. After more discussion, the court signed an order appointing standby 

counsel for Leavens. 

February 7, 14, 24 & March 18, 28, 2022 hearings

On February 7, the parties appeared for another readiness hearing. Leavens’ 

standby counsel was also present. At the time of the hearing, trials were still suspended 

due to COVID-19, so the parties discussed another continuance and possible trial dates. 

The topic of subpoenas also was discussed. Leavens’ standby counsel advised the 

court that none of Leavens’ subpoenas had been served. The court and standby counsel 

agreed that Leavens would have to request the issuance of subpoenas by motion. At the 

conclusion of the hearing, the court continued the trial date to February 28.
No. 38909-0-III

State v. Leavens

15

On February 14, the parties appeared for another readiness hearing. Leavens 

confirmed he was ready for trial on February 28. Nine days later, the court signed an ex 

parte order appointing Leavens an investigator to assist with witness interviews. 

On February 24, the parties again appeared for a readiness hearing. The State 

moved for an order authorizing a competency evaluation of Leavens pursuant to chapter 

10.77 RCW. The court granted the State’s motion and stayed the case. On March 18, the 

State moved to lift the stay after Leavens was found to be competent to stand trial. The 

court lifted the stay, set a readiness hearing for March 28, and set trial for April 4. 

Around this time, Leavens prepared a “Brady[5] Material Disclos[ure] Request” 

motion, in which he requested the State disclose all exculpatory information known to it 

or in its possession. CP at 138-42. On the accompanying note for hearing form where 

the scheduled argument date should appear, Leavens wrote “available.” CP at 138. It is 

unclear whether the motion and note for hearing were ever served on the prosecutor’s 

office because no certificate of service is in the record. Although Leavens signed the 

note for hearing form on March 19, the form and the accompanying motion were not 

received and filed by the clerk’s office until June 14, more than two months after trial 

concluded. 

 

5 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
No. 38909-0-III

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On March 23, the clerk’s office received and filed Leavens’ motion for “Material 

Witness Assistance,” and an accompanying note for hearing. CP at 76-77. Leavens 

signed the note for hearing form on March 18. In the motion, Leavens asserted that Ms. 

Snarr was a material witness, and requested she “be compelled by the court as witness or 

possibly afidavit [sic] of fact in a deposition.” CP at 76. Leavens again did not include a 

specific date on the note for hearing, but instead wrote “avail[able]” on the “hearing is 

scheduled for” line. CP at 77. It is unclear whether the motion was served on the 

prosecutor’s office because no certificate of service is included in the record. On 

March 28, the parties confirmed they were ready for trial on April 4. 

Trial—day one

At the start of trial, even though his motions had not been heard, Leavens told the 

court he was ready to proceed with trial. He then asked the court whether it considered 

his motion to secure Ms. Snarr’s presence to testify. Leavens explained he had talked to 

his investigator, “and he was going to check on [Ms. Snarr], but we didn’t put out a 

material witness warrant at that time.” RP (Apr. 4, 2022) at 120. The court clarified that 

Leavens was asking about a subpoena, noted it had not seen his motion, then added, “I 

won’t be bringing the witness in. If you want to subpoena them, or whatever you do, 

that’s up to you.” RP (Apr. 4, 2022) at 121.
No. 38909-0-III

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After a recess, the court explained to Leavens it was not the court’s job to get 

involved with witnesses and exhibits. Leavens responded, “I had a compulsory list made 

. . . . Patricia Snarr had been subpoenaed, but she let [the investigator] know she didn’t 

want to appear at trial. She has a medical condition . . . it’s embarrassing for her.” RP 

(Apr. 4, 2022) at 145. The court replied, “[w]hat I’m trying to tell you, I had nothing 

noted to me anytime before this trial or from anyone else. . . . I’m just telling you I’m 

not involved with the production of your witnesses or exhibits, just so it’s really clear.” 

RP (Apr. 4, 2022) at 145-46. After this exchange, the parties proceeded with jury 

selection, and a jury was seated. 

Leavens’ opening statement

Leavens gave a lengthy opening statement that differed from his police interview. 

He told jurors that the weekend before the assault, Ronald lost his keys and threatened 

him with a hammer (different from the one found at the scene of the assault). He 

explained that his mother gave Ronald money to have new keys made and that she was 

unhappy when he asked for more money to get the keys programmed. 

Leavens told jurors he went to the casino the day before the assault and won 

money. Afterward, he went to a local store to buy two beers and returned home, where 

he did not see his mother or Ronald. He went to his room, locked the door, and went to 

bed. Early the next morning, he saw Ronald acting suspiciously. Leavens told Ronald 
No. 38909-0-III

State v. Leavens

18

about his casino winnings, then had his usual glass of water with lemon. The next thing 

Leavens knew, he was knocked unconscious on the floor and unable to move. Leavens 

believed his brother drugged him.

Leavens told the jury that Ronald drove him to Rite Aid to purchase alcohol. 

Leavens said he had blacked out, but recalled Ronald moving him to his room and 

“rubbing the hammer on my face” and “telling me he’d smash my face in.” RP (Apr. 4, 

2022) at 256. He claimed Ronald was “really high” and “laughing like a maniac.” 

RP (Apr. 4, 2022) at 257.

Leavens described waking up around 11:00 p.m. that night, paralyzed, and afraid 

Ronald might kill him. For the next hour, his mother and Ronald verbally berated him. 

Ronald then grabbed the hammer, placed it in his (Leavens’) hand, and then walked away 

cackling. 

Leavens fell back asleep and later awakened to a quiet house, able to move. He 

went to the living room, where he saw his mother with a minor injury above her eyebrow, 

scrubbing her blood from the floor. His mother declined his offers of help and told him 

to leave, so he grabbed his “bug-out bag” and prepared to leave. RP (Apr. 4, 2022) at 

264. He went to the garage, where he saw a panicked Ronald holding two hammers. 

At this point, the court interjected, “Mr. Leavens, let me help you. Again, you 

don’t need to go into every detail. . . . Finish up the general overview of your story . . . so 
No. 38909-0-III

State v. Leavens

19

we can continue on and you can do the testimony or detail later or someone else can. . . . 

You don’t need to go into all the details.” RP (Apr. 4, 2022) at 265-66.

Leavens continued, explaining that he left the house on his bike and headed to 

Mission Park, where he slept in a sleeping bag. The next day, he encountered Ms. Snarr, 

who asked him to buy alcohol for her. Ms. Snarr saw that there was no blood on him. 

Leavens then saw another acquaintance, who told him that the police were looking for 

him and suggested he go camping. 

After the prosecutor objected, Leavens stated, “I’m summing it up . . . . I feel like 

I’m a survivor that got out of the house.” RP (Apr. 4, 2022) at 270. The court 

interrupted him, “No. No. We’re not talking about our feelings right now. . . . We’re 

talking about what the evidence would show.” RP (Apr. 4, 2022) at 270. Leavens then 

summarized his testimony and concluded by stating the whole incident was orchestrated 

by Ronald. 

Trial—day two 

The morning of the second day of trial, juror 2 requested to be excused from the 

jury. The trial court, with the parties present, questioned the juror outside the presence of

the jury. Juror 2 said he had intrinsic bias from hearing about the case in the news and 

based on his personal history and career working with elderly dementia patients. After an 

extended dialogue with the juror, in which the juror said it would be difficult to remain 
No. 38909-0-III

State v. Leavens

20

objective but also that he would endeavor to remain objective, the court ultimately 

allowed the juror to remain on the jury.6

Outside the presence of the jury, the trial court reminded Leavens he was allowed 

to question witnesses but not debate them. The court explained:

So, again, when you go to question these witnesses, it’s not a conversation 

and it’s not a debate. They are questions and answers. So if you have a 

question, you ask the question. Whatever the witnesses say, that’s the 

answer. So if you start to have a back and forth with the witness or if 

you’re going to get into a debate with the witness, I’ll cut you off and I’ll 

remind you of our conversation. I’m telling you up front just to avoid that. 

Again, it is a question and answer. They say something you don’t like in 

the answer, that’s the way it is. That’s how the courtroom works. So I 

don’t want to hear you get into a debate or a conversation with somebody 

because that’s not what we do in the courtroom, okay?

RP (Apr. 5, 2022) at 290. The court added that it held lawyers to the same standard. 

Leavens replied that he understood. 

The State first called Spokane County Sheriff’s Deputy Riley Sullivan. Deputy 

Sullivan testified that he responded to the 911 call and described encountering Ms. Annis 

and Ronald. He observed Ms. Annis’ injuries, blood throughout the house, and the 

hammer with blood on it. 

 

6 Leavens assigns error to the trial court’s decision to allow juror 2 to remain on 

the jury. For brevity’s sake, we include the relevant transcript excerpts in the analysis 

section for this issue below.
No. 38909-0-III

State v. Leavens

21

The State next called Ronald. During Leavens’ cross-examination of his brother, 

the following exchange occurred:

Q. (By Mr. Leavens) We established that you had been staying and 

paying rent. Now, leading up to this . . . fateful week, I’d say the event I’m 

going to ask you about is you had keys made for your car on the Labor Day 

weekend prior to this?

[THE PROSECUTOR]: Objection. Relevance. 

THE COURT: Sustained. 

THE WITNESS: Yes, I did. 

THE COURT: That’s okay, sir. I sustained the objection. 

MR. LEAVENS: So, Your Honor, I’m trying to establish a fact of 

my defense and leading up to showing what the atmosphere was in the 

house. 

THE COURT: Well, at this point, I don’t have any reason to know 

what the atmosphere—I don’t have any reason to believe that the 

atmosphere—

MR. LEAVENS: Okay. 

THE COURT: —before this date had anything to do with the 

incident. If you want to ask questions about the date in question, let’s go 

from there and see where that takes us.

RP (Apr. 5, 2022) at 328-29. Leavens did not continue this line of questioning and 

instead asked Ronald about photographs of his bedroom and about Ronald’s bloodless 

slippers. 

As Leavens continued cross-examining his brother, the State again objected:

Q. (By Mr. Leavens) So in the dialogue we had, Ron, you say 

that—

[THE PROSECUTOR]: Objection, Your Honor. Hearsay and 

outside the scope. 

THE COURT: Are you asking him about the phone call he testified 

to? 
No. 38909-0-III

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22

MR. LEAVENS: No. No, I didn’t.

THE COURT: When you say the dialogue—

MR. LEAVENS: Yes.

THE COURT: I can’t rule on the objection, because I don’t know 

what you’re asking.

MR. LEAVENS: Okay.

RP (Apr. 5, 2022) at 333. After this exchange, Leavens changed the topic. 

Throughout his cross-examination of his brother, Leavens sought admission of 

various photographic exhibits. At one point, Leavens showed Ronald a photographic

exhibit and stated, “So this is mother’s footprint outside my door.” RP (Apr. 5, 2022) 

at 341. The prosecutor objected on the basis of assuming facts not in evidence and the 

court sustained, telling Leavens to ask questions and not testify.

Leavens also sought admission of photographs that show the roofing hammer with 

dried blood on it. After Ronald twice stated he had seen the hammer in Leavens’ toolbox 

inside his bedroom closet, Leavens stated, “That is enough on the hammer. I just wanted 

to establish that—” and the court interjected, “You don’t need to get into—it’s fine. 

Talk about it later in argument. You’ve done what you needed to do was to introduce it.” 

RP (Apr. 5, 2022) at 343-44.

Leavens next asked his brother about photographic exhibits that show the kitchen 

and cups sitting on the counter. Ronald stated that he had seen Leavens drink tea and 

lemon water out of the cup shown in the exhibits and that he had seen Leavens squeeze 
No. 38909-0-III

State v. Leavens

23

lemons and make lemonade in the cup about twice per week. Leavens did not ask Ronald 

whether he saw Leavens make lemon water the day of the assault.

Leavens asked his brother whether he was “mad at mom because she wouldn’t 

give you any more money for those keys on Labor Day weekend, that previous 

weekend?” RP (Apr. 5, 2022) at 361-62. The prosecutor objected to “[f]acts not in 

evidence,” which the court sustained. RP (Apr. 5, 2022) at 362. 

After Ronald’s testimony, the State called Detective Brandon Wilson. Detective 

Wilson testified he searched the shed and was present during Ronald’s interview at the 

precinct. He testified he saw blood on Ronald’s shoulder and ear. 

Next, the State called Detective Bohanek. During cross-examination, Leavens 

asked Detective Bohanek, “There’s been a lot of referral to what went down in this room 

with conversation through that window.” RP (Apr. 5, 2022) at 426. The prosecutor 

objected, “That’s not in evidence,” and the court sustained. RP (Apr. 5, 2022) at 427.

The State next called Detective Meyer. During his testimony, the State sought to 

admit and play portions of the video recording of Leavens’ interview with the detectives 

after his arrest. Leavens objected, requesting the video be played in its entirety. The 

prosecutor agreed, and the court ruled that the jury could watch the entire two-hour video 

the following day. 
No. 38909-0-III

State v. Leavens

24

Trial—day three

On the third morning of trial, Leavens moved for a new trial. He argued the 

continuances caused witnesses to be absent, their memories to fade, and evidence to 

spoliate. The court told Leavens it would entertain a motion to dismiss after the State 

presented its case. After the jury was brought into the courtroom, the prosecutor resumed 

questioning Detective Meyer and played the entire video of Leavens’ interview.

During cross-examination, Leavens asked Detective Meyer about the hair follicle 

test. Although Detective Meyer had not collected a hair sample before this case, he 

agreed to take a sample of Leavens’ hair because

Mr. Leavens had expressed in his interview that he was drugged. And as

part of the investigation, I have a duty to find exculpatory evidence. And 

so the attempt of collecting the hair—the time had passed [since the 

assault], seven days—so when I researched detecting Rohypnol, a blood 

test would have been best . . . . If Mr. Leavens was contacted that evening 

or immediately after the incident, we could have done blood. But based off 

what I had to research that hair follicle samples would demonstrate up to 90 

days if there’s Rohypnol in his system.

RP (Apr. 6, 2022) at 488. Detective Meyer collected a sample of Leavens’ hair using a 

pair of sterile nail clippers. However, the results returned as inconclusive because 

Detective Meyer did not provide enough hair sample for the analysis. 

After the State rested its case, Leavens moved for a new trial or dismissal. He 

contended evidence was overlooked and that the continuances caused his witnesses to be 
No. 38909-0-III

State v. Leavens

25

unable to testify and their memories to fade. He argued that his brother had provided 

three different statements to Deputy Sullivan that were contradictory. 

The prosecutor responded that Leavens had received a fair trial, emphasizing that 

he had standby counsel, an investigator, and the opportunity to cross-examine his brother. 

The court denied Leavens’ motion. The court reminded Leavens that he was not required 

to testify and that, if he chose to testify, anything he said would become evidence and 

could be used against him. 

Before the court recessed trial that day, Leavens asked the court about Ms. Snarr. 

He told the court her testimony was pertinent to his defense but that she was in the 

hospital. He asked the court how to get her deposition or if he should request a material 

witness warrant. The court replied, “I’m hesitant to drag somebody out of a hospital with 

a warrant, sir.” RP (Apr. 6, 2022) at 524. The following exchange occurred:

MR. LEAVENS: So we could force a subpoena where I guess we 

can ask for a witness unless she’s well enough—I guess she’s just getting 

oxygen treatment—unless she’s well enough to testify. 

THE COURT: Well, first of all, I’m going to let you carry the case 

until tomorrow morning so you can gather any information you want 

tomorrow. The information is what I have to act on. If I have no idea how 

long she’s going to be in the hospital, I’m not going to leave the question 

open-ended. Does that make sense? I have no idea whether she’s going to 

be two days, a week or longer.

MR. LEAVENS: We will know, Your Honor, by morning.

THE COURT: If she’s going to testify, of course I would expect her 

here tomorrow.
No. 38909-0-III

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26

MR. LEAVENS: She’s pivotal to my defense. And I really—state 

that, you know, I have had to—we got the warrant to her. And I knew at 

this time—

THE COURT: The subpoena.

MR. LEAVENS: Yeah, the subpoena—that I didn’t want to go to

warrant. Like you said, we aren’t going to drag somebody out of the 

hospital.

THE COURT: Can you make an offer of proof what she will testify.

MR. LEAVENS: I do. 

THE COURT: I’m confused. Your whereabouts before this alleged 

assault provide a defense? 

MR. LEAVENS: We ran into by chance not long after I left the 

residence. I was still confused. And she’s already made a statement to the 

investigator that . . . I went to her house. She spent a lot of time with me, 

and actually spent the night. And—

. . . .

MR. LEAVENS: . . . She will testify to my demeanor, though, what 

I was wearing, what was described.

THE COURT: Fair enough. That at least describes where we’re at 

with it. Up to you, sir. If you have her here, fine, you can put her on as a 

witness, obviously.

MR. LEAVENS: Could we at this time, then do a motion for a . . . 

warrant for a material witness?

THE COURT: As I said a minute ago, without more information, 

I’m a little reluctant to issue. You’re telling me she’s in the hospital having 

oxygen therapy. I’m not going to remove—that could be dangerous.

MR. LEAVENS: Could you help in pursuing her? I have no means. 

My phone doesn’t work.

THE COURT: I can’t assist you, sir, in that case. . . . I’m listening 

to what you’re saying. I’m taking it at face value. No problem. But again, 

[I am] not very comfortable issuing a material witness warrant to someone 

in the hospital receiving medical treatment. I don’t want to remove her 

from that. I have no idea if that would endanger her health.

MR. LEAVENS: And we have no way to know she’s not 

exaggerating.

THE COURT: I’m talking about what you’re saying.
No. 38909-0-III

State v. Leavens

27

MR. LEAVENS: Maybe tomorrow we’ll know more. We’ll find 

out.

THE COURT: No problem with that. You can let me know what 

you find out in the morning. . . .

RP (Apr. 6, 2022) at 524-27.

Trial—day four

On the fourth morning of trial, Leavens told the court he would not testify in his 

defense. Leavens called Misty Duron, who testified she saw Leavens in her pet food 

shop on September 8, the day before the September 9 assault. After her testimony, 

Leavens told the court he had no more witnesses, and that “[w]e followed up on Tricia 

Snarr.” RP (Apr. 7, 2022) at 536. Leavens rested his case, then requested that the court 

allow him to recall Detective Meyer. Leavens did not realize that resting his case meant 

he could not call additional witnesses. The court nevertheless allowed Leavens to recall 

Detective Meyer. After Detective Meyer testified, Leavens rested his case. 

Before closing arguments, the court warned Leavens he could “only argue from 

things that were admitted into evidence. By that I mean testimony that came in or the 

exhibits.” RP (Apr. 7, 2022) at 563. During Leavens’ closing argument, the court 

interrupted and told him to argue from the evidence when he spoke about a photograph

that was not in evidence and again when he suggested that witnesses did not show up 

because of the delayed trial date. When Leavens said that his mother’s house was 
No. 38909-0-III

State v. Leavens

28

“hostile and every night I locked myself in my room, probably for about a year,” the 

prosecutor objected to “[f]acts not in evidence,” and the court sustained. RP (Apr. 7, 

2022) at 590.

Leavens then spoke about his theory that Ronald drugged his lemon water:

That is my glass on the counter. And it’s the colorful one with the 

rings that look kinda red, orange, blue. That’s my cup. . . . Every morning 

I’d squeeze a lemon into water in that glass. The last I seen Ron that 

morning is he was on the other side of the table. I had the glass full of 

water. I used distilled water. I walked around him to the kitchen, right 

there around that counter, then I cut the lemon in half. This is the last 

memories I have. I walked back around that counter. Ron was by that 

chair right there, and he was just looking, watching me, and I went and 

squeezed that lemon. I used a fork, then I squeezed into the cup.

RP (Apr. 7, 2022) at 591-92. The prosecutor objected, stating, “None of this is in 

evidence,” and the court sustained, struck the comments, and told the jury to disregard 

them. RP (Apr. 7, 2022) at 592. The court told Leavens, “Mr. Leavens, listen to me. 

There is no evidence about this drink.” RP (Apr. 7, 2022) at 592. Leavens argued, 

“Well, I drank my lemonade. I do every morning.” RP (Apr. 7, 2022) at 593. The court 

responded, “Sir, again, we have covered this, you and I. There was no testimony on this. 

The argument has to be from the testimony. There was no testimony about a drink with 

lemons.” RP (Apr. 7, 2022) at 593.

Leavens continued and later spoke about seeing his brother with two hammers in 

his lap. The prosecutor objected to facts not in evidence, and the court sustained. 
No. 38909-0-III

State v. Leavens

29

Leavens told the jury he watched Ronald take the hammer from his room. The 

prosecutor again objected, and the court said, “that was not testified to. There was 

nothing about it. Strike the hammer—.” RP (Apr. 7, 2022) at 607. Leavens replied, 

“That hammer was taken from my room,” and the court responded, “Sir, there’s no 

evidence of that in the trial.” RP (Apr. 7, 2022) at 607.

When Leavens attempted to discuss Deputy Sullivan’s testimony about what 

Ronald told him, the prosecutor again objected to facts not in evidence. The court 

“[s]ustained as to what Officer Sullivan said. It was not in evidence. . . . Officer Sullivan 

did not testify. His statement is not in evidence, sir.” RP (Apr. 7, 2022) at 607-08. After 

the State’s rebuttal and after the jury had been sent to deliberate, the court clarified that it 

misspoke about Deputy Sullivan:

Also, I misspoke, as well, when we were in the middle of the 

objection. I think it was Deputy Sullivan didn’t testify. He did testify; he 

didn’t testify as to the particular statement that was being made at the time 

in argument that I sustained the objection in relation to. So didn’t complete 

my entire thought; that was a correction I needed to make.

RP (Apr. 7, 2022) at 618.

Verdict, sentencing, and posttrial motions

The jury found Leavens guilty of first degree assault, and answered yes on the 

deadly weapon and domestic violence special verdicts. 
No. 38909-0-III

State v. Leavens

30

On April 29, 2022, the court sentenced Leavens to 147 months of confinement. At 

the conclusion of sentencing, Leavens told the court he had submitted motions to arrest 

judgment and for a new trial. The court told Leavens that the motions had not been 

served on his office.

Leavens’ envelope for the motion to arrest judgment was dated April 11, and his 

envelope for the motion for a new trial was dated April 13. Yet the motions for the late 

April sentencing hearing were not received by the administrator’s office until May 11 and 

by the clerk’s office until June 14.7

Leavens filed a timely notice of appeal. He also filed a notice of discretionary 

review seeking relief from judgment and requesting a new trial. In his notice for 

discretionary review, he claimed (1) Ms. Snarr told standby counsel she would not appear 

for trial because she was ill, (2) the trial court denied standby counsel’s request for a 

recess to verify Ms. Snarr’s condition, and (3) the State did not call two forensic 

investigators on its witness list that were favorable to him. 

 

7

In a May 19, 2022 letter to the court, Leavens described the inmate mail as 

“unreliable,” and complained it took three weeks for his motions to be filed. CP at 125-

26.
No. 38909-0-III

State v. Leavens

31

ANALYSIS

A. JUDICIAL COMMENTS ON EVIDENCE

Leavens contends the trial court violated article IV, section 16 of the Washington 

Constitution by making improper comments on the evidence. We disagree and discuss 

each alleged instance after review of the relevant standards.

Although Leavens did not object to any of the trial court’s purported comments, a 

judicial comment on the evidence is an error of constitutional magnitude that can be 

raised for the first time on appeal. State v. Sivins, 138 Wn. App. 52, 59, 155 P.3d 982 

(2007); RAP 2.5(a)(3).

Article IV, section 16 of the Washington Constitution provides, “[j]udges shall not 

charge juries with respect to matters of fact, nor comment thereon, but shall declare the 

law.” In other words, judges are prohibited from commenting on the evidence. A court 

comments on the evidence if the court’s attitude toward the merits of the case or the 

court’s evaluation relative to the disputed issue is inferable from the statement. State v. 

Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995); State v. Levy, 156 Wn.2d 709, 721, 132 

P.3d 1076 (2006). The touchstone of error in a trial court’s comment on the evidence is 

whether the feeling of the trial court as to the truth value of the testimony of a witness has 

been communicated to the jury. Lane, 125 Wn.2d at 838. This important constitutional 
No. 38909-0-III

State v. Leavens

32

principle serves to protect the jury from being unduly influenced by the court’s opinion 

on the credibility, sufficiency, or weight of the evidence. Sivins, 138 Wn. App. at 58.

Washington courts use a two-step analysis to determine whether reversal is 

required due to a judicial comment on the evidence. Levy, 156 Wn.2d at 723-24. To 

ascertain whether a court’s conduct or remark rises to a comment on the evidence, a 

reviewing court examines the facts and circumstances of the case. Sivins, 138 Wn. App. 

at 58. If there was a judicial comment, it is presumed to be prejudicial, and the burden is

on the State to show that the defendant was not prejudiced, unless the record 

affirmatively shows that no prejudice could have resulted. Levy, 156 Wn.2d at 723.

However, when ruling on objections, a trial court has the right to give the reasons 

for its ruling and those reasons will not be treated as a comment on the evidence. State v. 

Cerny, 78 Wn.2d 845, 855-56, 480 P.2d 199 (1971), vacated in part, 408 U.S. 939, 92 S. 

Ct. 2873, 33 L. Ed. 2d 761 (1972). In addition, juries are instructed, as was the jury in 

this case, that the trial court can have no opinion on the facts of the case and that anything 

said by the court with respect to objections made during trial must not be taken as the 

opinion of the court as to the facts or as expressing any opinions of the court thereon. Id. 

at 856. The jury is presumed to follow the court’s instructions. State v. Willis, 67 Wn.2d 

681, 686, 409 P.2d 669 (1966). 
No. 38909-0-III

State v. Leavens

33

Mr. Leavens contends the trial court improperly commented on the evidence in the 

following instances:

First instance—Deputy Sullivan’s testimony

Leavens contends the trial court commented on evidence during closing argument 

when it stated Deputy Sullivan did not testify. We disagree.

During closing argument, when Leavens attempted to discuss Deputy Sullivan’s 

testimony about statements Ronald made to him, the prosecutor objected to facts not in 

evidence. In fact, neither the State nor Leavens had questioned Deputy Sullivan during 

trial about Ronald’s statements to him. The court “[s]ustained as to what Officer Sullivan 

said. It was not in evidence. . . . Officer Sullivan did not testify. His statement is not in 

evidence, sir.” RP (Apr. 7, 2022) at 607-08.

The State argues the trial court did not comment on evidence because its statement 

did not pass on the truth value of any testimony. The State contends the trial court was 

referencing the statements Leavens claimed his brother made to Deputy Sullivan in 

Leavens’ motion to dismiss, but Deputy Sullivan did not actually testify to those 

statements during trial. 

The State notes that the trial court, soon after its ruling, admitted it misspoke when 

it said Deputy Sullivan did not testify. The court corrected itself and said Deputy 

Sullivan did testify and explained it meant to refer to a particular statement Leavens tried 
No. 38909-0-III

State v. Leavens

34

to attribute to Deputy Sullivan’s testimony. The jury never heard this correction.

Nevertheless, we agree with the State that the trial court did not comment on the 

evidence. The court’s attitude toward the merits of the case is not inferable from the 

comment nor are the court’s feelings about the case implied from the comment. 

Moreover, Deputy Sullivan did not testify about statements Ronald made to him. We 

view the trial court’s comments as an explanation, although imperfect, for why it 

sustained the State’s objection. Such explanations are not comments on the evidence. 

Cerny, 78 Wn.2d at 855-56. 

Second instance—the hammer

Leavens contends the trial court commented on evidence during closing argument 

when it sustained the State’s facts-not-in-evidence objection to his statements about his 

brother taking the hammer. We disagree.

During Leavens’ recorded interview, he told officers he kept the hammer in the 

closet in his room, and that “Ron took it.” Ex. P2, at 45 min. through 45 min., 25 sec. 

However, during closing argument, Leavens said he watched Ronald take the hammer 

from his room. The State objected, and the court told Leavens: “that was not testified to. 

There was nothing about it. Strike the hammer—.” RP (Apr. 7, 2022) at 607. 

The State argues there was no evidence at trial that Leavens said he saw Ronald 

take the hammer from his room. The State is correct, and the trial court properly 
No. 38909-0-III

State v. Leavens

35

sustained the State’s objection. In addition, the court made its comment to explain why it 

sustained the State’s objection, and we do not treat such explanations as comments on the 

evidence. Cerny, 78 Wn.2d at 855-56.

Third instance—lemon water

Leavens contends the trial court commented on evidence during closing argument 

after it sustained the State’s facts-not-in-evidence objection to his argument that his 

brother watched him squeeze a lemon into a glass of water the morning before the 

assault. We disagree.

During his closing argument Leavens told the jury about his theory that Ronald 

drugged his lemon water:

MR. LEAVENS: . . . Every morning I’d squeeze a lemon into water 

in that glass. The last I seen Ron that morning is he was on the other side 

of the table. I had the glass full of water. I used distilled water. I walked 

around him to the kitchen, right there around that counter, then I cut the 

lemon in half. This is the last memories I have. I walked back around that 

counter. Ron was by that chair right there, and he was just looking, 

watching me, and I went and squeezed that lemon. I used a fork, then I 

squeezed into the cup.

[THE PROSECUTOR]: I’m sorry. Objection. None of this is in 

evidence. 

THE COURT: None of that is in evidence.

. . . .

THE COURT: Mr. Leavens, listen to me. There is no evidence 

about this drink. 

. . . .

THE COURT: I’m going to strike your comments and tell the jury 

to disregard them. 
No. 38909-0-III

State v. Leavens

36

MR LEAVENS: That is my cup there. My last memory is making 

my lemon juice—

[THE PROSECUTOR]: Standing objection.

MR. LEAVENS: —drinking my cup. 

THE COURT: Sustained. 

MR. LEAVENS: Well, I drank my lemonade. I do every morning. 

THE COURT: Sir, again, we have covered this, you and I. There 

was no testimony on this. The argument has to be from the testimony. 

There was no testimony about a drink with lemons.

RP (Apr. 7, 2022) at 592-93.

Leavens argues the trial court improperly commented on the evidence during this 

exchange. He contends there was testimony about him making lemon water. His 

contention, although true, does not help his argument.

Although Ronald did testify that Leavens made lemon water about twice per week, 

he did not testify to seeing Leavens make lemon water on the day of the assault. Nor was 

there evidence that Leavens’ last memory was squeezing lemon into a glass of water the 

morning before the assault. Regardless, the court’s comment explained its ruling for 

sustaining the State’s objection, and we will not treat such explanations as comments on 

the evidence. Cerny, 78 Wn.2d at 855-56.

Other comments during closing arguments and cross-examination

Leavens contends the trial court improperly commented on six other occasions 

during his cross-examination of Ronald and during closing argument when it sustained 

the prosecutor’s objections to facts not in evidence. He contends the trial court should 
No. 38909-0-III

State v. Leavens

37

not have stated the facts were not in evidence and should have instead stated that the 

parties’ comments were not in evidence. He offers no authority for the proposition that 

the trial court should have rephrased its rulings on the objections. Nevertheless, again, 

the trial court was permitted to rule on objections and we will not treat its rulings as 

comments on the evidence. Cerny, 78 Wn.2d at 855-56.

Leavens also contends the trial court’s interruption during his cross-examination 

of his brother constituted an improper comment on the evidence. We disagree.

After Ronald twice testified that he had seen the hammer in Leavens’ toolbox in 

his bedroom closet, Leavens stated, “That is enough about the hammer. I just wanted to 

establish that—,” and the court interjected, “You don’t need to get into—it’s fine. Talk 

about it later in argument. You’ve done what you needed to do was to introduce it.” 

RP (Apr. 5, 2022) at 343-44.

The trial court sensed that Leavens was about to argue the importance of his 

brother knowing where he kept his hammer. The purpose of examining a witness is to 

elicit facts, not to argue facts. Closing argument is where one argues about facts elicited 

and why those facts require the jury to reach a particular result. The trial court did not err 

by explaining this to Leavens. 
No. 38909-0-III

State v. Leavens

38

B. MATERIAL WITNESS WARRANT AND DEPOSITION

Leavens contends the trial court infringed on his constitutional right to compulsory 

process and his right to present a defense by refusing to issue a material witness warrant 

or order a deposition of Ms. Snarr. We disagree.

Both the Sixth Amendment to the United States Constitution and article I, section 

22 of the Washington Constitution guarantee a criminal defendant the right to present

testimony in one’s defense and the right to compulsory process to compel the attendance 

of witnesses. State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983); State v. Maupin, 

128 Wn.2d 918, 924, 913 P.2d 808 (1996). “‘The right to offer the testimony of 

witnesses, and to compel their attendance, if necessary, is in plain terms the right to 

present a defense.’” Maupin, 128 Wn.2d at 924 (quoting Washington v. Texas, 388 U.S. 

14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)). 

However, neither the right to compulsory process nor the right to present a defense 

is absolute. State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004). The availability 

of the right to compulsory process is wholly dependent on the defendant’s initiative. 

Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). The 

defendant bears the burden of establishing the materiality, relevance, and admissibility of 

the proposed testimony. State v. Roberts, 80 Wn. App. 342, 351, 908 P.2d 892 (1996) 

(citing State v. Smith, 101 Wn.2d 36, 41, 677 P.2d 100 (1984)).
No. 38909-0-III

State v. Leavens

39

“In order for the right to be violated, the ‘sovereign’s conduct’ must impermissibly 

interfere with the right to mount a defense.” State v. McCabe, 161 Wn. App. 781, 787, 

251 P.3d 264 (2011) (quoting United States v. Theresius Filippi, 918 F.2d 244, 247 (1st 

Cir. 1990)). The contested act or omission must be attributable to the sovereign, and it 

must cause the loss or erosion of material testimony that is favorable to the accused. Id. 

The right is not violated where “the obstacle to a defendant’s getting what he perceives as 

the full benefit of his Sixth Amendment right is not government interference, but an 

uncooperative witness.” Id. Whether denial of the request to issue a material witness 

warrant rises to the level of a constitutional violation requires a case-by-case inquiry. 

State v. Downing, 151 Wn.2d 265, 275, 87 P.3d 1169 (2004).

We review a trial court’s decision to deny a motion for issuance of a material 

witness warrant for a manifest abuse of discretion. City of Bellevue v. Vigil, 66 Wn. App. 

891, 895, 833 P.2d 445 (1992). In exercising its discretion to grant or deny a request for 

compulsory process, the trial court may consider a number of factors, including surprise, 

diligence, materiality, and maintenance of orderly procedure. State v. Edwards, 68 

Wn.2d 246, 255, 412 P.2d 747 (1966); State v. Schaffer, 70 Wn.2d 124, 129, 422 P.2d 

285 (1966); State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974).
No. 38909-0-III

State v. Leavens

40

Invited error/waiver

As a threshold issue, the State contends Leavens invited or waived

8

this error. We 

agree that Leavens invited the error. 

Under the invited error doctrine, a party who sets up an error at trial cannot claim 

that very action as error on appeal. State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 

(2009). An error is invited when the party affirmatively assents to the error, materially 

contributes to it, or benefits from it. State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 

154 (2014). Invited errors are unreviewable even when they implicate constitutional 

rights. State v. Carson, 179 Wn. App. 961, 973, 320 P.3d 185 (2014), aff’d, 184 Wn.2d 

207, 357 P.3d 1064 (2015).

 

8 Although the State contends Leavens waived this error, its arguments only 

concern the invited error doctrine. The State cites no rules for the applicability of the 

wavier doctrine in criminal cases and provides no analysis on whether the constitutional 

right to compulsory process can be waived. 

In general, constitutional rights in criminal cases may only be waived by knowing, 

intelligent, and voluntary acts. See State v. Stegall, 124 Wn.2d 719, 724, 881 P.2d 979 

(1994). The validity of any waiver of a constitutional right, as well as the inquiry 

required by the court to establish waiver, will depend on the circumstances of each case, 

including the defendant’s experience and capabilities. Id. at 725. Moreover, the inquiry 

by the court will differ depending on the nature of the constitutional right at issue. Id.

Because the State does not cite or analyze these rules in the context of the right to 

compulsory process, we decline to address this argument further. “Passing treatment of 

an issue or lack of reasoned argument is insufficient to merit judicial consideration.” 

Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).
No. 38909-0-III

State v. Leavens

41

As explained below, Leavens materially contributed to the purported error. On the 

third day of trial, after the State rested but before Leavens opened his case, Leavens 

asked the court to issue a material witness warrant for Ms. Snarr or order her to be 

deposed. He explained that she could testify about his demeanor on September 10, the 

day after the assault. 

He explained that Ms. Snarr, currently, was hospitalized and receiving oxygen. 

The trial court explained it was “hesitant to drag somebody out of a hospital with a 

warrant,” said it would recess trial to the next morning, and asked Leavens to find out 

how long she might be in the hospital. RP (Apr. 6, 2022) at 524. Leavens responded he 

would know more by the next morning. Before recessing, Leavens repeated his request 

for a material witness warrant. The trial court again explained, “As I said a minute ago, 

without more information, I’m a little reluctant to issue. You’re telling me she’s in the 

hospital having oxygen therapy. I’m not going to remove—that could be dangerous.” 

RP (Apr. 6, 2022) at 526.

The next morning, Leavens called a witness who testified she saw him on a 

Wednesday in September. On cross-examination, the witness testified she would not be 

surprised that the Wednesday would have been September 8, but she would have to look 

at a calendar. 
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After the trial court excused the witness, it asked Leavens if he had any other 

witnesses. Leavens responded, “We don’t. We followed up on Tricia Snarr.” RP 

(Apr. 7, 2022) at 536. The trial court interjected, “Without telling me more, does the 

defense rest?” Leavens responded, “Defense rests.” RP (Apr. 7, 2022) at 536. Leavens’ 

decision to not have Ms. Snarr testify materially contributed to the trial court not issuing 

a material witness warrant or ordering her deposition. 

C. BIASED JUROR

Leavens contends the trial court violated his constitutional right to a fair and 

impartial jury by failing to remove juror 2, sua sponte, from the jury during trial. We 

disagree.

Under the federal and state constitutions, a criminal defendant has a right to a fair 

and impartial jury. State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987) (citing 

U.S. CONST. amend. VI; WASH. CONST. art. I, § 22). This right is violated by the 

inclusion of a biased juror on the jury. In re Pers. Restraint of Yates, 177 Wn.2d 1, 30, 

296 P.3d 872 (2013). Generally, a defendant waives the issue of a biased juror on appeal 

by failing to raise an objection to a juror in the trial court. State v. Tharp, 42 Wn.2d 494, 

501, 256 P.2d 482 (1953). However, if the record demonstrates the bias of a juror, 

seating the biased juror was, by definition, a manifest constitutional error that can be 

raised for the first time on appeal. See State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 
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1103 (2015); RAP 2.5(a)(3). “Because ‘[t]he presence of a biased juror cannot be 

harmless,’ seating an actually biased juror ‘requires a new trial without a showing of 

actual prejudice.’” State v. Guevara Diaz, 11 Wn. App. 2d 843, 851, 456 P.3d 869 

(2020) (internal quotation marks omitted) (quoting United States v. Gonzalez, 214 F.3d 

1109, 1111 (9th Cir. 2000)).

The trial judge has an obligation to excuse a juror where grounds for a challenge 

for cause exist, such as bias, even if neither party challenges that juror. Id. at 855; 

RCW 2.36.110. Because the trial court is in the best position to determine a juror’s 

ability to be fair and impartial, we review a trial court’s decision not to dismiss a juror for 

manifest abuse of discretion. Guevara Diaz, 11 Wn. App. 2d at 856; see also State v. 

Noltie, 116 Wn.2d 831, 838-40, 809 P.2d 190 (1991). A trial court abuses its discretion 

when it bases its decision on untenable grounds or reasons. State v. Powell, 126 Wn.2d 

244, 258, 893 P.2d 615 (1995).

“When a juror makes an unqualified statement expressing actual bias, seating the 

juror is a manifest constitutional error.” Irby, 187 Wn. App. at 188. “Actual bias is ‘the 

existence of a state of mind on the part of the juror in reference to the action, or to either 

party, which satisfies the court that the challenged person cannot try the issue impartially 

and without prejudice to the substantial rights of the party challenging.’” Id. at 193 

(quoting RCW 4.44.170(2)). “If it appears that a juror has formed an opinion, ‘such 
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opinion shall not of itself be sufficient to sustain the challenge, but the court must be 

satisfied, from all the circumstances, that the juror cannot disregard such opinion and try 

the issue impartially.’” Id. (quoting RCW 4.44.190). 

However, equivocal answers alone do not require a juror to be removed. Noltie, 

116 Wn.2d at 839. Rather, “the question the trial court must answer is ‘whether a juror 

with preconceived ideas can set them aside.’” Guevara Diaz, 11 Wn. App. 2d at 856 

(quoting Noltie, 116 Wn.2d at 839).

Here, on the second day of trial, juror 2 requested to be excused. Outside the 

presence of the other jurors, juror 2 told the court and the parties that he had intrinsic bias 

from hearing about the case in the news and based on his personal history from childhood 

and his “career path.” RP (Apr. 5, 2022) at 284. 

The court asked the juror “whether [he could] set those aside, judge this case on its 

own merits, make the decision on this case and then move on or not.” RP (Apr. 5, 2022) 

at 284. Juror 2 replied he could and said he would endeavor to be objective, but added he 

had seen similar assaults in his profession and that it would “be hard for me to remain 

objective.” RP (Apr. 5, 2022) at 285. Juror 2 explained he grew up in a long-term care 

facility, had a “very passionate infinity [sic]” for the elderly, began his career working in 

the dementia and Alzheimer’s units in long-term care facilities, and that his patients were 

an extension of his life’s work and family. RP (Apr. 5, 2022) at 285.
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The court again told the juror that if he did not think he could be fair, to let the 

court know. Juror 2 responded that he would try, but added “it would be a challenge.” 

RP (Apr. 5, 2022) at 286. The dialogue continued:

THE COURT: Okay. Well, [juror 2], if you feel you can move 

forward and hold the State to their burden, you can listen to the evidence 

objectively and it’s not going to be overwhelmed by your life experiences, 

then that meets the test for me for you to stay on the jury. That’s where I 

would come from. Again, we all bring our life experiences. The question 

is can we set them aside and look at the facts in this case, whatever they 

turn out to be, and then make that decision. Obviously, some people can’t 

do that and that’s perfectly understandable.

JUROR NO. 2: Yeah. I guess without hearing more evidence and 

testimony, I don’t know how I’m going to respond. I feel like I can handle 

it and I can be objective. But until I hear everything and experience 

everything, I’m not sure.

RP (Apr. 5, 2022) at 287-88 (emphasis added). The court ultimately allowed juror 2 to 

remain on the jury panel. 

Leavens argues that the trial court should have removed juror 2. He points to the 

emphasized language above and argues that juror 2’s last statement was a statement of 

partiality. The State responds that the trial court did not abuse its discretion by not 

removing juror 2 because juror 2 made assurances of impartiality and the trial court 

satisfied itself that he could set his preconceived ideas aside. We agree with the State.

Although juror 2 said he could be objective and hold the State to its burden, he 

also said he could not be sure until he heard everything. Juror 2’s response is similar to 
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responses often made by careful and thoughtful jurors. A trial court is not required to 

excuse a juror simply because the juror is not “sure” the facts of a violent crime will not 

bias them. Rather, the trial court must remove a juror if the trial court is not satisfied they 

can set biases aside. 

While preconceived ideas against a defendant’s race or nationality are insidious 

and a trial court cannot reasonably find those could be set aside, preconceived ideas 

based on the type of crime or victim pose a different challenge for courts to assess. 

Jurors who have personally experienced rape, incest, and other violent crimes are less 

capable of setting their personal traumas aside to be impartial. But jurors with strong 

empathy or affinity for victims of violent crimes are more capable of being impartial than 

those with personal traumas. Were we to conclude otherwise, a disproportionate number 

of conscientious people would be excluded from jury service. We discern no abuse of 

discretion from the trial court’s determination that juror 2 could set aside his 

preconceived ideas and be impartial.
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D. FAILURE TO PRESERVE EVIDENCE

Leavens contends Detective Meyer violated his constitutional rights to due process 

and to present a defense by failing to obtain a sufficient hair sample to test for the 

presence of Rohypnol. We disagree.9

Under the Fourteenth Amendment to the United States Constitution, criminal 

prosecutions must conform with prevailing notions of fundamental fairness, and criminal 

defendants must have a meaningful opportunity to present a complete defense. State v. 

Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994) (citing California v. 

Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)). Our State’s due 

 

9 The State contends we should not review this argument because this claim of 

error is being raised for the first time on review, and the error is not “manifest” within the 

meaning of RAP 2.5(a)(3). 

Generally, we will not review a claim of error raised for the first time on review. 

RAP 2.5(a). One of this general rule’s three exceptions permits review of an unpreserved 

“manifest error affecting a constitutional right.” RAP 2.5(a)(3). For an error to be 

“manifest” under this rule, the appellant must show “actual prejudice.” State v. Kirkman, 

159 Wn.2d 918, 935, 155 P.3d 125 (2007). If the record is insufficient to show actual 

prejudice, the error is not manifest and review is not warranted. Id. 

Here, because the State’s agent obtained an insufficient quantity of hair, it is not 

possible to know if the hair would have tested positive for Rohypnol. Thus, Leavens

cannot show actual prejudice. However, it would be unjust for us to decline review of 

Leavens’ claim if his inability to obtain review was due to State misconduct. 

RAP 2.5(a)(3) is a discretionary rule, and a court may waive its application if it would 

produce an unjust result. See State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 

(2015). To avoid a potential unjust result, we review this claim of constitutional error.
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process clause extends the same protection regarding this right as does its federal 

counterpart. Id. at 474 (citing WASH. CONST. art. I, § 3).

To comport with due process, the State has a duty to disclose material exculpatory 

evidence to the defense and a related duty to preserve such evidence for use by the 

defense. Id. at 475 (citing Brady, 373 U.S. 83). To determine if a failure to preserve 

exculpatory evidence amounts to a denial of due process, we apply the standard set forth 

in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). State 

v. Ortiz, 119 Wn.2d 294, 301, 305, 831 P.2d 1060 (1992) (plurality opinion). “[U]nless a 

criminal defendant can show bad faith on the part of the police, failure to preserve 

potentially useful evidence does not constitute a denial of due process of law.” 

Youngblood, 488 U.S. at 58.

The presence or absence of bad faith turns on law enforcement’s knowledge of the 

exculpatory value of the evidence at the time it was lost or destroyed. State v. Armstrong, 

188 Wn.2d 333, 345, 394 P.3d 373 (2017) (quoting Cunningham v. City of Wenatchee, 

345 F.3d 802, 812 (9th Cir. 2003)). Law enforcement acting in compliance with 

established policy regarding the evidence at issue is determinative of good faith. See

Wittenbarger, 124 Wn.2d at 477. A plaintiff must provide specific, nonconclusory 

factual allegations that establish improper motive. Armstrong, 188 Wn.2d at 345.
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In Armstrong, the defendant claimed the police acted in bad faith by failing to 

preserve a surveillance video after telling him that they would collect the video. Id. at 

344-46. The video went uncollected due to an oversight on the part of the police. Id. at

346. Our Supreme Court held that the defendant failed to show bad faith because he 

presented no evidence the police had an improper motive. Id. At most, the defendant 

showed “the investigation was incomplete or perhaps negligently conducted, but that is

not enough to show bad faith.” Id.

Here, Leavens claims Detective Meyer acted in bad faith because Detective Meyer 

understood that the hair sample might have exonerated Leavens but waited weeks to 

collect the sample, which turned out to be of insufficient quantity for testing. As 

explained below, we conclude that Leavens has not established bad faith.

Similar to the defendant in Armstrong, Leavens fails to put forth specific, 

nonconclusory factual allegations that Detective Meyer acted with an improper motive. 

Detective Meyer testified that he researched the process. Based on his research, he 

elected to take a sample of Leavens’ hair, rather than blood, because Rohypnol would be 

present in hair up to 90 days after ingestion. The fact that Detective Meyer collected an 

insufficient amount of hair to test for Rohypnol does not show an improper motive. Nor 

does a six-week delay between Leavens first asking to be tested and taking the sample 
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show an improper motive. Detective Meyer’s failure to take a larger sample of hair was 

careless, but this is insufficient to show bad faith. 

E. INTERFERENCE WITH RIGHT TO SELF-REPRESENTATION

Leavens contends the trial court, court clerk, and jail interfered with his 

constitutional right to self-representation. He argues the trial court failed to consider four 

of his motions and abused its discretion by failing to ensure he had reasonable access to 

resources to help him prepare for his defense. He also contends we should abandon the 

practice of holding pro se litigants to the same standard as attorneys. We disagree with 

his arguments and address them in turn.

The Washington Constitution expressly guarantees criminal defendants the right to 

self-representation. WASH. CONST. art. I, § 22. The Sixth Amendment to the United 

States Constitution implicitly guarantees this right. Faretta v. California, 422 U.S. 806, 

819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Courts regard this right as “so fundamental 

that it is afforded despite its potentially detrimental impact on both the defendant and the 

administration of justice.” State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010). 

Improper denial of the right to represent oneself requires reversal, and no showing of 

prejudice is required. Id.

The right of self-representation is not a license for a pro se criminal defendant to 

shirk relevant rules of procedural and substantive law. See State v. Jessup, 31 Wn. App. 
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304, 310, 641 P.2d 1185 (1982) (citing State v. Fritz, 21 Wn. App. 354, 358-63, 585 P.2d 

173 (1978)). Rather, a pro se criminal defendant must comply with all applicable 

procedural rules. State v. Smith, 104 Wn.2d 497, 508, 707 P.2d 1306 (1985).

Leavens contends the trial court violated his right to self-representation in four 

ways. We discuss each argument separately.

1. Pretrial motion for material witness warrant or deposition

Leavens contends the trial court violated his right to self-representation and to 

present a defense when it failed to consider his pretrial motion for material witness 

assistance with respect to Ms. Snarr. The State responds that we should not find any 

violation where the record does not establish that Leavens served a lawfully issued 

subpoena on Ms. Snarr. We agree with the State.

A trial court may order a witness be deposed if the trial court finds that the witness 

might be unable or prevented from attending trial, a material witness refuses to discuss 

the case with either counsel, or there is good cause to take the deposition. CrR 4.6(a). 

Here, there was no basis in the record for the trial court, pretrial, to issue an order for Ms. 

Snarr to be deposed. The record shows that Ms. Snarr and Leavens are acquaintances on 

friendly terms who drank together. 

A trial court may issue a material witness warrant only on a showing that the 

witness has material testimony and (1) has refused to submit to a deposition ordered by 
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the court, or (2) has refused to obey a lawfully issued subpoena, or (3) it may be 

impractical to secure the presence of the witness by subpoena. CrR 4.10(a). Here, the 

trial court never ordered Ms. Snarr to be deposed nor did Leavens ever make a pretrial 

showing it would be impractical to secure Ms. Snarr’s presence by subpoena. Again, the 

record reflects that the two are acquaintances on friendly terms who drank together. To 

prevail on this argument, therefore, Leavens must establish the second option, that Ms. 

Snarr had refused to obey a lawfully issued subpoena. 

The record does not establish that Ms. Snarr had been lawfully subpoenaed at the 

time of Leavens’ pretrial request or that she refused to comply with the subpoena if one 

ever was served on her. There being no pretrial basis for issuance of a material witness 

warrant for Ms. Snarr, we conclude that Leavens’ first argument fails. 

2. Motion for Brady evidence

Leavens next contends the trial court violated his right to self-representation by 

failing to address his written Brady motion. We disagree.

Leavens filed a motion requesting the State disclose all Brady material before trial. 

Rather than scheduling the motion through the clerk’s office and writing the date in the 

note for motion, Leavens wrote “available.” CP at 138. The note for motion was marked 

“received” by the superior court administrator’s office on May 11, 2022, one month after 

trial. CP at 138. Leavens never mentioned the motion during his many pretrial hearings 
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nor during trial. There is no evidence the trial court ever knew Leavens filed a Brady

motion. The trial court did not violate Leavens’ right to self-representation by failing to 

rule on a motion that was never properly noted or called to its attention. We conclude 

that his second argument fails.

3. Posttrial motions for a new trial and to arrest judgment

Leavens contends the trial court violated his right to self-representation by failing 

to address his posttrial motions for a new trial and to arrest judgment. We disagree.

The record shows, similar to his Brady motion, Leavens failed to properly note the 

motion for hearing. Rather than scheduling the motion through the clerk’s office and 

writing the date in the note for motion docket, Leavens wrote “available.” CP at 143. 

We conclude that his third argument fails.

4. Reasonable access to State-provided resources

Leavens argues the trial court abused its discretion by failing to ensure he had 

reasonable access to resources to help him prepare his defense. Specifically, he contends 

that in January and early February 2022 he (1) was barred from speaking to State 

witnesses, (2) was unable to make telephone calls from the jail, (3) did not have access to 

a telephone book, (4) did not have access to a dictionary, and (5) was only permitted to 

look at discovery for one hour per day. He also complains the jail would not allow him 

to bring one of his folders to the court on the first day of trial.
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The State counters, arguing (1) we should not find reversible error because the 

record is silent as to whether Leavens’ complaints in the months leading up to trial went 

unremedied, and (2) the court provided Leavens with reasonable access to resources. We 

agree with the State.

Article I, section 22 of the Washington Constitution affords a pretrial detainee 

who has exercised his constitutional right to represent himself a right of reasonable 

access to State-provided resources that will enable him to prepare a meaningful pro se 

defense. State v. Silva, 107 Wn. App. 605, 622, 27 P.3d 663 (2001). The Silva court 

further explained:

What measures are necessary or appropriate to constitute reasonable access 

lie within the sound discretion of the trial court after consideration of all the 

circumstances, including, but not limited to, the nature of the charge, the 

complexity of the issues involved, the need for investigative services, the 

orderly administration of justice, the fair allocation of judicial resources 

(i.e., an accused is not entitled to greater resources than he would otherwise 

receive if he were represented by appointed counsel), legitimate safety and 

security concerns, and the conduct of the accused.

Id. at 622-23 (footnotes omitted).

Leavens points to these factors and contends the trial court should have taken 

broad measures to ensure his reasonable access to resources. As discussed below, we 

conclude the trial court took appropriate measures to afford Leavens with reasonable 

access to State-provided resources and therefore did not abuse its discretion.
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First, contrary to Leavens’ argument, the record shows he was able to speak to 

State witnesses and make telephone calls from jail. The prosecutor twice complained 

about Leavens attempting to contact State witnesses (in violation of a court order), 

casting doubt on his argument that he was unable to make telephone calls from the jail. 

Leavens also acknowledged he was able to make telephone calls from the jail when he 

told the court that “nobody picks up.” RP (Jan. 20, 2022) at 21. In addition, the courtappointed investigator’s invoice reflects that Leavens called him from jail 11 times 

between February and March 2022. 

With regard to interviewing State witnesses, the prosecutor arranged for Leavens 

to interview State witnesses, even though Leavens had not provided a list of witnesses he 

wanted to interview. In the end, Leavens interviewed four State witnesses. And although 

Leavens represented to the trial court he would like to interview every single State 

witness, he made clear he did not want a continuance to do so. 

Next, although Leavens complained about his lack of access to a dictionary and 

telephone book, and complained about his lack of time to review discovery, we will not 

assume that these issues went unremedied. We note that Leavens did not raise these 

issues in February or March, prior to the April trial.

With regard to his complaint that the jail would not allow him to bring one of his 

folders to the court on the first day of trial, we are not persuaded that this amounts to a 
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denial of his right to self-representation. Leavens had two folders with him, and the 

folder he was not allowed to bring contained his witness list. Despite this, Leavens was 

able to recall the names of his four witnesses, including Misty Duron and Patricia Snarr. 

From the record, it is apparent that Leavens was able to intelligently discuss pretrial 

matters, engage in jury selection, and provide a lengthy opening statement—all without 

the folder containing his witness list. We conclude that his fourth argument fails.

We are bound to hold pro se litigants to the same standard as attorneys

Leavens contends we should abandon the practice of holding pro se litigants to the 

same standard as attorneys. The State correctly responds that we must follow Supreme 

Court precedent. State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227 (1984); see also

State v. Jussila, 197 Wn. App. 908, 931, 392 P.3d 1108 (2017). Our Supreme Court has 

established that pro se litigants must comply with applicable rules and statutes, and that 

we hold pro se litigants to the same standard as attorneys. See In re Pers. Restraint of 

Rhem, 188 Wn.2d 321, 328, 394 P.3d 367 (2017); In re Pers. Restraint of Bonds, 165 

Wn.2d 135, 143, 196 P.3d 672 (2008) (plurality opinion). 

F. CROSS-EXAMINATION OF RONALD

Leavens contends the trial court violated his constitutional right to present a 

defense and right to confrontation by (1) making misleading statements about the scope 

of cross-examination, and (2) limiting his cross-examination of Ronald. We disagree the 
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trial court made misleading statements and conclude that Leavens failed to adequately 

inform the trial court of why an incident, one week prior to the assault, was relevant to 

his defense.

As with the right to present a defense, the right to confront and cross-examine 

adverse witnesses is guaranteed by both the federal and state constitutions. U.S. CONST.

amend. VI; WASH. CONST. art. I, § 22; State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 

(2010) (quoting State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002)). “A 

defendant’s right to an opportunity to be heard in his defense, including the rights to 

examine witnesses against him and to offer testimony, is basic in our system of 

jurisprudence.” Jones, 168 Wn.2d at 720 (citing Chambers v. Mississippi, 410 U.S. 284, 

294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). The main and essential purpose of 

confrontation is to secure for the opponent the opportunity of cross-examination. State v. 

Lee, 188 Wn.2d 473, 487, 396 P.3d 316 (2017).

These rights are not absolute. Id. “‘[T]rial judges retain wide latitude insofar as 

the Confrontation Clause is concerned to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, 

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only 

marginally relevant.’” Id. (alteration in original) (quoting Delaware v. Van Arsdall, 

475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)). Courts may deny cross-
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examination if the evidence sought is “‘vague, argumentative, or speculative.’” Id. 

(quoting Darden, 145 Wn.2d at 621). We review a claim of a denial of Sixth 

Amendment rights de novo. Jones, 168 Wn.2d at 719. However, we review a limitation 

of the scope of cross-examination for an abuse of discretion. Lee, 188 Wn.2d at 486. In 

these situations, a trial court abuses its discretion when its decision is manifestly 

unreasonable or based on untenable grounds or reasons. Id.

Similarly, we review trial court rulings on whether evidence is relevant and 

admissible for an abuse of discretion. State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d 

1255 (2022). When making these rulings, a trial court abuses its discretion if no 

reasonable person would take the view adopted by the trial court. Id. When a trial 

court’s discretionary ruling excludes relevant evidence, the more the exclusion of that 

evidence prejudices an articulated defense theory, the more likely we will find that the 

trial court abused its discretion. State v. Duarte Vela, 200 Wn. App. 306, 317, 402 P.3d 

281 (2017) (citing Jones, 168 Wn.2d at 720).

1. The trial court’s statements concerning the scope of cross-examination

Leavens focuses on two statements the trial court made during and before trial as 

violating his right to present a defense and right to confrontation:
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THE COURT: [Each party’s job is][10]to present whatever they 

want in the trial. So the Court doesn’t get involved in that. I simply make 

rulings as to whether things are admissible or not admissible if someone 

offers an exhibit or offers testimony or offers whatever it is. . . .

RP (Apr. 4, 2022) at 144-45.

THE COURT: Okay. So before we pull the jury out here into 

courtroom, Mr. Leavens, we’re going to have witnesses today, my 

understanding, the State’s going to be putting on. So, again, when you go 

to question these witnesses, it’s not a conversation and it’s not a debate. 

They are questions and answers. So if you have a question, you ask the 

question. Whatever the witnesses say, that’s the answer. So if you start to 

have a back and forth with the witness or if you’re going to get into a 

debate with the witness, I’ll cut you off and I’ll remind you of our 

conversation. I’m telling you up front just to avoid that. Again, it is a 

question and answer. They say something you don’t like in the answer, 

that’s the way it is. That’s how the courtroom works. So I don’t want to 

hear you get into a debate or a conversation with somebody because that’s 

not what we do in the courtroom, okay?

RP (Apr. 5, 2022) at 290.

The State argues the trial court was permitted to control the mode of questioning 

witnesses. We agree with the State. 

With regard to the first statement, we are not persuaded the trial court violated 

Leavens’ right to present a defense or right to confrontation. “Trial courts determine 

whether evidence is relevant and admissible.” Jennings, 199 Wn.2d at 59. The trial 

 

10 The parties characterize this first comment as the court saying that it is the 

State’s or prosecutor’s job to introduce whatever they want. However, the transcript 

shows that the trial court was discussing “each party’s” burden to put forth witnesses and 

exhibits, and not referring to only the State or prosecutor. 
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court was correct in telling Leavens that each party was responsible for putting on their 

own witnesses and exhibits, and that the trial court’s job is to rule on admissibility.

With regard to the second comment, we are not persuaded the trial court misled 

Leavens that his ability to cross-examine State witnesses would be limited. Instead, the 

court informed Leavens that he could not use cross-examination to testify or argue with 

the witnesses, which was a correct statement of the law and within its discretion. See

Lee, 188 Wn.2d at 486. Moreover, the trial court has broad discretion to make trial 

management decisions, including “‘the mode and order of interrogating witnesses and 

presenting evidence.’” State v. Dye, 178 Wn.2d 541, 547, 309 P.3d 1192 (2013)

(quoting ER 611(a)). 

We conclude that the trial court’s comments did not improperly limit Leavens’ 

right to confrontation. Rather, its comments were correct statements of the law and were 

within its broad discretion to manage how witnesses are questioned. 

2. The trial court’s restriction of Leavens’ cross-examination of Ronald 

Leavens contends the trial court violated his right to confrontation and his right to 

present a defense when it refused to allow him to ask Ronald whether he was angry at 

their mother because the weekend before the assault she had refused to give him money 

to program his car keys. 
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The rulings Leavens complains of occurred during his cross-examination of his 

brother:

Q. (By Mr. Leavens) We established that you had been staying and 

paying rent. Now, leading up to this . . . fateful week, I’d say the event I’m 

going to ask you about is you had keys made for your car on the Labor Day 

weekend prior to this?

[THE PROSECUTOR]: Objection. Relevance. 

THE COURT: Sustained. 

THE WITNESS: Yes, I did. 

THE COURT: That’s okay, sir. I sustained the objection. 

MR. LEAVENS: So, Your Honor, I’m trying to establish a fact of 

my defense and leading up to showing what the atmosphere was in the 

house. 

THE COURT: Well, at this point, I don’t have any reason to know 

what the atmosphere—I don’t have any reason to believe that the 

atmosphere—

MR. LEAVENS: Okay. 

THE COURT: —before this date had anything to do with the 

incident. If you want to ask questions about the date in question, let’s go 

from there and see where that takes us.

RP (Apr. 5, 2022) at 328-29. Leavens then questioned his brother about photographs of 

his brother’s bedroom and slippers. 

Later, Leavens asked his brother whether he was “mad at mom because she 

wouldn’t give you any more money for those keys on Labor Day weekend, that previous 

weekend?” RP (Apr. 5, 2022) at 361-62. The prosecutor objected to “[f]acts not in 

evidence,” which the court sustained. RP (Apr. 5, 2022) at 362. 
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The State contends (1) Leavens failed to adequately inform the trial court of the 

relevancy of the atmosphere in the house the week before the assault, and (2) Leavens 

failed to lay an adequate foundation for offering an “other suspect” defense. Because we 

agree with the State’s former argument, we do not address the latter.

Under ER 103(a)(2), error may not be predicated upon a ruling that excludes 

evidence unless a substantial right of the party is affected, and “the substance of the 

evidence was made known to the court by offer or was apparent from the context within 

which questions were asked.” “An offer of proof serves three purposes: it informs the 

court of the legal theory under which the offered evidence is admissible; it informs the 

judge of the specific nature of the offered evidence so that the court can assess its 

admissibility; and it creates a record adequate for review.” State v. Ray, 116 Wn.2d 531, 

538, 806 P.2d 1220 (1991), abrogated on other grounds by State v. Crossguns, 199 

Wn.2d 282, 505 P.3d 529 (2022). An offer of proof is not required, however, if the 

substance of the excluded evidence is apparent from the record. Id. at 539.

We are not persuaded the trial court abused its discretion when it sustained the 

prosecutor’s relevance objection. Leavens explained he was asking his brother about the 

keys to establish “what the atmosphere was in the house” the weekend before the assault. 

RP (Apr. 5, 2022) at 328. The trial court sustained the State’s relevancy objection and 
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explained it had no reason to believe the atmosphere in the house the weekend before the 

assault was relevant and told Leavens he should focus on the day of the event.

Leavens points to nothing in the record that would make apparent to the trial court

the relevancy of the atmosphere in the house the weekend before the assault. Rather, he 

argues he told the court he was trying to establish a fact of his defense. This is not 

sufficient. Rather, under ER 103(a)(2), it was incumbent on Leavens to better explain the 

relevancy of the answer he sought to elicit by making an offer of proof.

Similarly, the trial court did not err when it sustained the objection to the second 

question, noted above. Although “facts not in evidence” was not the proper objection, we 

may sustain a trial court’s discretionary evidentiary ruling on any proper ground. State v.

Arndt, 194 Wn.2d 784, 799, 453 P.3d 696 (2019). Because Leavens still had not 

explained the relevancy of his brother being mad at their mother the weekend before the 

assault, the question still was not relevant.

Moreover, the trial court did not prevent Leavens from eliciting evidence of his 

brother’s motive to kill their mother. Leavens actually did introduce evidence to support 

his theory that his brother assaulted their mother and had a motive to do so. The jury 

heard that Ronald paid rent to live at his mother’s house, that he wanted her house, and 

that he told Leavens, three times the month before, that the house would be his. These 

facts allowed Leavens to argue his theory of the case.
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We conclude that the trial court did not violate Leavens’ constitutional right to 

confront a witness or to present a defense. 

G. CUMULATIVE ERROR

Leavens argues that cumulative error denied him his constitutional right to a fair 

trial and warrants reversal. We disagree.

Under the cumulative error doctrine, the defendant must show that the combined 

effect of multiple errors requires a new trial. State v. Clark, 187 Wn.2d 641, 649, 389 

P.3d 462 (2017). Having found no error, this doctrine is inapplicable here.

SAG ISSUE I: TABLE OF CONTENTS AND STATEMENTS OF FACT

RAP 10.10 permits a defendant to file a pro se statement of additional grounds for 

review (SAG) if the defendant believes his appellate counsel has not adequately 

addressed certain matters. Our review of an SAG, however, is subject to several practical 

limitations. For example, we consider only issues raised in an SAG that adequately 

inform us of the nature and occurrence of the alleged errors. State v. Alvarado, 164 

Wn.2d 556, 569, 192 P.3d 345 (2008). In addition, we only consider arguments that are 

not repetitive of briefing. RAP 10.10(a). Finally, issues that involve facts or evidence 

not in the record are properly raised through a personal restraint petition, not an SAG. 

Alvarado, 164 Wn.2d at 569.
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Leavens filed a 32-page SAG, accompanied by an 88-page appendix consisting of 

photographic exhibits, hearing transcripts, and other documents that are not included in 

the clerk’s papers. To the extent his SAG and appendix raise issues that involve facts and 

evidence not in the record, those issues are properly raised in a personal restraint petition. 

Id.

The table of contents in Leavens’ SAG includes the following five issues with 

subissues that seem to include argument: (1) “unsupported probable cause and initial bias 

apparent at first appearance,” (2) “a charge that fails to constitute the required ‘beyond a 

reasonable doubt’ to charge statute,” (3) “arrest and incarceration completely infringe on 

14th Amendments presumption of innocence, and ability to prepare a proper defense,” 

and (4) “that equitable fact finding for the furtherance of justice was sidelined for an 

unsupported preclusion of guilt.” SAG at i-ii (capitalization omitted).

Leavens’ SAG also contains sections entitled “issues and statement of facts” and 

“statement of declarative facts.” SAG at 14-17, 19-21 (capitalization omitted). In both 

of these sections, he repeats his theory that Ronald drugged him. He also contends the 

trial court should have compelled the testimony of Ms. Snarr and Heather Bach.

We reviewed the issue related to the compulsion of Ms. Snarr’s testimony based 

on the briefing above. We decline to review this SAG issue because we only consider 

arguments that are not repetitive of briefing. RAP 10.10(a).
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With regard to the testimony of Ms. Bach, Leavens fails to identify an error for us 

to review. RAP 10.10(c). Leavens never asked the trial court to compel her testimony. 

Leavens did tell the court that he wished to call Ms. Bach to testify, and the prosecutor 

indicated the State would provide Leavens with blank subpoena forms. However, the 

record does not show that Leavens ever subpoenaed Ms. Bach nor does it show any other 

requests or motions to compel Ms. Bach’s testimony. Accordingly, we decline review of 

this issue.

The remaining issues raised in the table of contents and fact sections do not 

adequately inform us of the nature and occurrence of the alleged errors. RAP 10.10(c);

Alvarado, 164 Wn.2d at 569. To the extent these sections raise errors, we decline to 

review them.

SAG ISSUE II: ISSUE AND ASSIGNMENT OF ERROR SECTION

Leavens’ SAG contains a section entitled, “issue and assignment of error,” with 

the following list of alleged errors and issues: 

1. In the manner of a summary prosecution, this trial court errored 

by impermissivley [sic] shifting the burden of proof to the defendant, 

Edward Leavens. Only by accusation by lone accuser Ronald Leavens did 

probable cause become established.

2. Constitutional violations contributed to conviction of someone 

who is actually legally, procedurally innocent.

3. Unconscionable tactics were applied during this prosecution. A 

“pro se” defendant is defined as “of one’s self” not “by one self” left 
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without hearing notifications. Evens [sic] the April 4th jury trial stand-in 

counsel gave Edward Leavens no notice or information.

4. At what point does a prosecution resemble a persecution, as an 

ethical conundrum, therefore abandoning its obligation to remain unbiased 

and seek justice with diligence.

5. Trial court erred by failing to examine factual findings 

responsibly gathered by first responders. Theses exhibits and articles 

remain unexamined including a PharoPhoto to Go scan of the entire house. 

Articles and evidences that remain inconclusive.

6. Edward Leavens was denied the equal protections that the 

Fourteenth Amendment, that state, that no person shall be denied the same 

protection of law enjoyed by others.

7. Judge Harold Clarke III in closing moments of sentencing 

wonders aloud that “you have some culpability in this” and that there is 

plenty of evidence. Judge Clarke than [sic] only refers to surgery photo’s 

[sic] and nothing else. The same photos I objected to for their 

inflammatory nature.

8. Trial court erred by mistaken belief that repeatedly presenting a 

case lacking a definite theory, one not inferred by overwhelming 

allegations.

9. When an inference supports an element of a crime. Due process 

requires the presumed fact be inferred from validation by the proof of basic 

fact.

10. Overwhelming presumption of guilt or innocence, does in no 

manner equate to a conclusive result. Especially when direct responsibly 

gather evidence conflicts with State’s witness.

ISSUE: Trial court only suggest repeatedly of satisfying its burden 

of proof. Only by accusation did this continue defying the standard of 

“proven beyond a reasonable doubt.”

I persist, can the element of basic fact by allegation be proved 

conclusively or with moral certainty. The irregularities in attaining this 

verdict will remain questionable.

Its my contention that this verdict be dismissed or reversed with 

prejudice.

SAG at 1-3.
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Leavens does not provide argument or authority for any of these bare allegations 

of error. Again, we consider only issues raised in an SAG that adequately inform 

us of the nature and occurrence of the alleged errors. Alvarado, 164 Wn.2d at 569; 

RAP 10.10(c). Accordingly, we decline review of these alleged errors.

SAG ISSUE III: FAILURE TO CALL WITNESSES AND CONSIDER EVIDENCE

Leavens contends the trial court erred by (1) failing to call forensic investigators 

Trayce Boniecki and Lyle Johnston to testify, (2) excluding evidence of inconsistent 

statements made by Ronald, and (3) failing to consider the evidence. We disagree with 

his arguments and address them in turn.

First, the trial court did not err by failing to call the forensic investigators to 

testify. ER 614(a) permits, but does not require, the trial court to call witnesses on its 

own motion or on the motion of a party where necessary in the interests of justice. 

However, Leavens never moved the trial court to call the forensic investigators to testify 

and only raised the issue of their testimony in his notice of discretionary review filed over 

one month after trial. Under these circumstances, Leavens fails to identify a reviewable 

error. RAP 10.10(c).

Both investigators were included on the State’s witness list, and the prosecutor 

arranged for Leavens to interview them. In the first joint trial management report, the 

State indicated it would call both investigators to testify, but in a later report the State 
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indicated it would not call them to testify. However, this was not error. Nothing in 

CrR 4.7(a), which governs the prosecutor’s discovery obligations, requires the State to 

call every witness on its witness list. If Leavens believed the forensic investigators’

testimony was important to his case after his interview, he could have amended his 

witness list to include the forensic investigators and called them to testify himself.

Second, Leavens fails to identify a reviewable error regarding the evidence of 

Ronald’s interview with investigators. RAP 10.10(c). Leavens seems to contend that 

Ronald made contradictory statements in his 911 call and his video-recorded interview 

with law enforcement. However, only the 911 call was admitted as evidence and played 

for the jury. No video of Ronald’s interview with law enforcement was admitted as 

evidence during trial nor is the video included in the record on appeal. Leavens’ 

proposed list of exhibits included in the joint trial management report does not include 

any mention of the video recording of Ronald’s interview with law enforcement.

11

 Under 

these circumstances, Leavens fails to identify an error for us to review. RAP 10.10(c). 

Resolution of this issue may involve evidence or facts not in the record, so the 

appropriate method for addressing the issue is through a personal restraint petition. 

Alvarado, 164 Wn.2d at 569.

 

11 Some of the pages in the joint trial management report are faded to the point that 

the handwriting is illegible. 
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Last, Leavens’ contention that the trial court failed to consider the evidence also 

fails to identify a reviewable error. RAP 10.10(c). The trial court is tasked with 

determining whether evidence is relevant and admissible. Jennings, 199 Wn.2d at 59. 

The jury’s role is to weigh the evidence to determine whether the State has met its burden 

to prove each element of the crime beyond a reasonable doubt. Crossguns, 199 Wn.2d at

297. Leavens does not identify a particular piece of evidence that the court should have 

considered or what he means by “considered.” If he was concerned with the relevance or 

admissibility of a particular piece of evidence, he should have objected during trial. To 

the extent he is arguing that his conviction was based on insufficient evidence because 

the State relied solely on Ronald’s testimony, he is incorrect. The State introduced 

numerous pieces of evidence that support Leavens’ conviction—including the location 

data from his cell phone, his DNA on the hammer, flight after the crime, flight from 

arrest, numerous incredulous and inconsistent statements he made, and the fact that 

Ronald called 911 rather than allowing their mother to bleed to death.
No. 3 8909-0-111 

State v. Leavens 

Affirmed. 

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. 

WE CONCUR: 

Pennell, J. Cooney, J. 

71