### FILED FEBRUARY 14, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent,
V. ANTHONY

### J. TUDOR, Appellant. 

### ) ) ) 

### ) ) ) ) ) 

### ) No. 33769-3-111

UNPUBLISHED OPINION

PENNELL, 

### J.

- Anthony Tudor appeals his conviction for first degree murder, arguingthe trial courtviolatedhis constitutional righttopresent a defense by excluding "other suspect" evidence. We affirm. 

## FACTS Mr. Tudor and his mother's boyfriend, Richard Klepacki, were arrested for shooting and killing a neighbor. 1 The State'stheory wasthatMr. Tudor andMr. Klepacki wentto the victim's home, kicked openthe door, and shothim. Originally, the State'stheory appearedtobethatMr. Tudorwas the shooter. Afterthe evidence was

1Mr. Klepacki's case was severed from Mr. Tudor's and is notcurrently before the court.

### No. 33769-3-111 State v. Tudor presented at trial, the State argued that Mr. Klepacki was the shooter.2 Mr. Tudorproffered an alibi defense. He testified he was home with his mother at the time ofthe shooting. In addition, the defense raised a claim ofmisidentification. Going in to trial, the defense theory was an individual named AndrewLankfordwas the shooter. The trial court afforded Mr. Tudor ample opportunity to present evidence implicating Mr. Lankford. The defense elicitedtestimony that Mr. Lankfordhadbeen at the victim's house the day ofthe shooting and was originally considered a suspect. Law enforcementtestified to suspicious footprints left nearthe crime scene that appeared to lead to Mr. Lankford's house. Mr. Lankford's cell phone records indicated he may not have been at the residence ofhis proffered alibi witness the entire evening ofthe shooting. Apart from these generalized suspicions surrounding Mr. Lankford, the defense elicited testimony suggesting the shooter looked somewhat similarto Mr. Lankford. The lone eyewitness to the shooting described the shooter as having a dark complexion and dark eyes. Additional witnesses described the men running from the scene as young,

2 The revised theory was based on witness testimony thatMr. Tudorhad confessed to the crime and explained he stoodby while Mr. Klepacki shot the victim. 2No. 33769-3-III State v. Tudor probably in their 20s. While these descriptions were consistent with Mr. Lankford, they
were not consistent with Mr. Tudor (who is fair) orMr. Klepacki (who was in his 50s). Mr. Lankford testified as a witness for the State, and thejurycould observe whetherMr. Lankford matched the description originallyprovided ofthe shooter. The defense effort to connectMr. Lankford to the shooting fell short during crossexamination ofthe eyewitness to the shooting. Defense counsel handed the eyewitness an exhibit, marked 101, and asked ifit depicted the shooter. The witness said no. The witness admitted that, during a prior statement, he said the person depicted in the photo "kind oflooked like" the shooter. 2 Verbatim Report ofProceedings (VRP) (June 3, 2015) at 239. He also admitted previously telling defense counsel the person in the photo
was "probably" the shooter. Id. But at the time oftrial he refused to identify the individual in the photograph as the shooter. Defense counsel moved to admit the photo. The State objected on the grounds of relevance. The objection was sustained. Subsequenttestimony revealed the individual depicted in exhibit 101 was Andrew Lankford. However, the photo was never admitted into evidence. During a colloquy outside the presence ofthejury, the court explainedthe photo
was not admissible because the defense had not established a sufficient basis to conclude
3No. 33769-3-111 State 

### v. Tudor
that it depicted the shooter. In addition, the court was concerned that defense counsel had improperly informed thejurythere had beentestimony indicating Mr. Lankford was the shooter. This was contrary to the evidence. The court explainedthe defense was welcome to try to present evidence tying 

### Mr. Lankfordto the shooting. However, defense counsel was admonished not to referto facts outside the record. "We're goingto talk about what the evidence actually is," the court warned, "andnot whatwe think it is or what we hope it to be." 2 VRP (June 4, 2015) at 360. Priorto summation, defense counsel explained he did not intendto argue that any particularperson was the shooter, only that the person described by the eyewitness could not have been Mr. Tudor. The court found this fair and did not place any restrictions on closing argument, otherthan that counsels' arguments mustbebased onthe evidence. The court reiterated it would not allow exhibit 101 to be admitted to thejury. Thejuryreturned a verdict finding Mr. Tudor guilty. He appeals. ANALYSIS Mr. Tudor contends the trial court violated his constitutional right to present a defense by excluding evidence that

### Mr. Lankford committedthe murder. In general, other suspect evidence should be admitted ifrelevant and not overlyprejudicial. State v. 

### Franklin, 180 Wn.2d 371, 378-79, 325 P.3d 159 (2014). Relevance is established if
4No. 33769-3-111 

### State v. Tudor proffered evidence tends to connect someone other than the defendantwith the crime. 

### Id. at 381. Ultimately, the test for admissibility is similarto that set out by ER403. 

### Id. at 380. A trial court's decision to exclude other suspect evidence is reviewed for abuse of discretion. 

### State v. Thomas, 150 Wn.2d 821, 856-61, 83 P.3d 970 (2004). There was no abuse ofdiscretion in this case. The trial court did notthwart Mr. Tudor's efforts to present other suspect evidence. The problem for Mr. Tudor was not the restrictions placed on him by the court. 

### It was thatthe evidence did not turn out in his favor. The only evidence excluded by the trial court was the photograph of

### Mr. Lankford that had been shown to the eyewitness. The trial court excluded this photograph both because the defense failed to tie it to the shooter and because defense counsel improperly referred to the person in the photograph as the shooter. This was well within the court's discretion.3 Even if

### Mr. Tudor could show the trial court erred in refusing to admit the photograph, there was no prejudice. In cases ofconstitutional error, the burden falls on

3 Mr. Tudor suggests the trial court also erred by restricting the scope ofhis closing argument. As set forth in the recitation offacts, we disagree with this characterization ofthe record. Mr. Tudor never sought to present argument identifying 

### Mr. Lankford as the shooter. Mr. Tudor'sprofferthat he wouldpresent generalized argument regarding other suspects was not made in response to any court rulings. Accordingly, there is no basis to complain that the court imposed improperrestrictions. 

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### No. 33769-3-111 State v. Tudor


### the State to prove erroneously excluded evidence was harmless beyond a reasonable doubt. Franklin, 

### 180 Wn.2d at 382-83. This is readily met. Thejurylearned the eyewitness had previously said the individual depicted in the photograph was "probably" the shooter. 2 VRP (June 3, 2015) at 239. Furthertestimony revealed the photograph in question depicted Andrew Lankford. Finally, thejurywas able to see Mr. Lankford during his testimony andjudge for themselves whether he appeared similarto the descriptionprovided by the eyewitness. Admission ofthe photograph would not have been ofany additional assistance. The exclusion was harmless. 

### CONCLUSION Mr. Tudor'sjudgment ofconviction is affirmed. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Pennell, J. WE CONCUR:

Siddoway, J.

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