State of Washington v. David Larue Pettis

FILED

AUGUST 20, 2024

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, )

) No. 38726-7-III

Respondent, )

)

v. )

)

DAVID LARUE PETTIS, ) UNPUBLISHED OPINION

)

Appellant. )

STAAB, J. — A jury found David Pettis guilty of first degree premeditated murder

of his wife, Peggy Pettis, who died of a drug overdose on June 25, 2018. The central

issue at trial was whether Pettis had added a lethal dose of drugs to Peggy’s drink the

night she died, and did so with the intent to kill her.

On appeal, Pettis contends that his right to fair trial was violated when the State

elicited improper opinions of guilt from witnesses on four occasions. The challenged

statements included a demonstrative slide used by an analyst with the subtitle “Pathway

to Premeditation,” the analyst’s testimony that certain digital messages were particularly

interesting or “noteworthy,” testimony by Pettis’s daughter that she and other family

members had concerns about her mother’s death, and the testimony of Pettis’s son that he

“came to believe that [his father] had something to do with [his] mother’s death.” The

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State v. Pettis

State responds that none of these alleged errors were preserved or rise to the level of

manifest constitutional error. Alternatively, the State contends that any error was

harmless.

We hold that the analyst’s slide and the son’s testimony were explicit or nearly

explicit opinions of guilt and are therefore reviewable as manifest constitutional error.

However, after reviewing the errors and the evidence, we are convinced beyond a

reasonable doubt that the errors did not affect the verdict and the State has met its burden

of showing that the errors were harmless beyond a reasonable doubt. We affirm Pettis’s

conviction and sentence, but remand to strike the victim penalty assessment (VPA) and

DNA fees from his judgment and sentence.

BACKGROUND

The State charged David Pettis with first degree premeditated murder of his wife,

Peggy. At trial, the State’s theory was that Pettis was dissatisfied with his long-term

marriage to Peggy and had reconnected with an old girlfriend, Robin,1 from New York.

The State asserted that as Pettis’s relationship with Robin intensified, Pettis began laying

the groundwork to murder his wife, collect the proceeds from several life insurance

policies, and move to the east coast with Robin. The State alleged that on the night

Peggy died, Pettis ground up a lethal dose of hydrocodone and mixed it into an ice cream

1

Robin’s full name is not relevant for purposes of this appeal. We use her first

name in this opinion. Her full name remains as part of the record.

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drink he made for Peggy. It is undisputed that Peggy died on June 25, 2018 of a drug

overdose.

Pettis denied killing his wife. During two interviews with police following

Peggy’s death, Pettis insisted that he was honest with Peggy about his relationship with

Robin and did not plan to leave Peggy. Pettis alleged Peggy had dementia, had been

suffering chronic pain from prior injuries, and frequently ground up hydrocodone and

added it to her ice cream. He told police that on the night she died, Peggy crushed up

pills and added them to her drink. He then suggested that Peggy caused her own death,

either accidentally or intentionally.

Additional Background

Because we conduct a harmless error analysis, we set forth a more detailed

summary of the evidence introduced during the seven-day jury trial.

David and Peggy Pettis had been married for 33 years. Peggy drove a school bus

and Pettis was self-employed, owned a tow truck and a log truck, and operated a small

pig farm in Cheney. The Pettises had three adult children: two biological children, David

William2 and Elizabeth Culp, and a nephew, James Beckley, that they treated as a son.

David William lived with his fiancé, Tawnya Ibach, on the south hill in Spokane and

2

Because many of the witnesses share the same last name as the appellant, we

refer to the appellant by his last name. For purposes of clarity, we use the first name of

Peggy and David William. No disrespect is intended.

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talked to his mother regularly. Culp lived nearby in Cheney. Peggy’s sister, Melissa

Mabe, and her family lived next door to the Pettises in Cheney. In addition, Bill Porter,

who had raised David Pettis, and his current wife Nancy, had been living with the

Pettises for approximately a year at the time of Peggy’s death.

The Pettises’ relationship was described as average, but in the months before her

death, several people noticed Peggy exhibiting a more somber mood. Nancy Porter

noticed that Peggy seemed to be more stressed and thought it might be related to the

family’s finances. Bill Porter also observed that Pettis was harsh with Peggy. David

William indicated that his parents’ relationship became hostile and likewise assumed it

was due to finances. In the months preceding his mother’s death, David William noticed

his father snap and yell at his mother more often. Tanya Ibach also noticed that the

Pettises’ stress increased after Pettis reconnected with Robin.

Pettis’s Relationship with Robin

In November 2017, the year preceding Peggy’s death, Pettis reconnected with

Robin, a woman he dated in high school, while he was in New York for a funeral. Robin

invited Pettis to sleep on her couch while he was in town. During this stay the

relationship became intimate although Robin expressed reservations because she knew

Pettis was married.

Following this trip, Robin and Pettis continued to communicate through various

digital media including texting, email, and social media. Within weeks of visiting Robin

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in New York, Pettis sent her an email in which he talked about bringing her to his farm.

He also asked for Robin’s ring size and indicated that he is “building a kingdom,” that he

needs a “special person” to help him with it, and that he wanted that person to be Robin.

Ex. P-60. Pettis claimed his marriage was dissolving and his sex life had “all but

disappeared.” Ex. P-60. He ended the email by indicating that “[t]here will come a day

in the not so distant future I will be on my knee in front of you.” Ex. P-60.

Peggy became aware that her husband was communicating with Robin. Nancy

testified that Pettis would be in his home office while Peggy and Nancy were in the living

room and Nancy could hear Pettis call Robin “sweetheart,” say “I love you,” and “I can’t

wait to be with you.” Rep. of Proc. (Nov. 30, 2021) (RP) at 459. When this occurred,

Peggy would just “shrink down like there was nothing left . . . that she could give” or that

Pettis wanted from her. RP at 459. Despite this reaction, Nancy testified that there was

no indication that Peggy would hurt herself.

Contrary to Nancy’s testimony, Culp testified that Robin was friends with both of

her parents. Culp indicated that her mother was not concerned about Pettis’s relationship

with Robin. Peggy told Culp that she was “thankful that if something happened to her,

that Dad would have Robin because Dad was not the type of person that could survive

alone.” RP at 1000. However, Culp also testified that Pettis described his relationship

with Robin as friendly, not intimate.

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In February, Pettis took a second trip to New York. Although Pettis returned

home early, he sent Robin a message within days, complaining that Robin’s refusal to

answer his texts was causing him anguish and “it is becoming clearer and clearer to me

that you mean everything to me. I never knew I could ever feel this connected to

someone. . . . [P]lease don’t shut me out I couldn’t take the thought of losing you, not

again.” Ex. P-10 at 1186. On March 18, Pettis sent Robin another message professing

his love for her and anguishing over the thought of losing her.

On March 22 and 23, several messages were exchanged between the social media

accounts of Pettis, Robin, and Peggy. The details of these messages are set forth below,

but the State’s analyst opined that several messages sent from Peggy’s account to Robin

were actually written by Pettis.

Peggy’s Health

Pettis’s defense at trial was that Peggy crushed up the lethal dose of hydrocodone

and placed it in her own drink the night she died. Evidence at trial focused on how

frequently Peggy took hydrocodone, whether she needed them crushed up, and whether

she was starting to develop dementia.

In 2016, Peggy had a farm accident where she landed on a boar that gouged her

thigh. At the time of the accident, Peggy was prescribed 45 tablets of hydrocodone with

directions to take one every four hours. Although the wound healed, the injury caused a

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limp and chronic pain. Despite this pain, Peggy was able to continue working as a bus

driver and continue working around the farm and in her garden.

The witnesses at trial had contrasting views on how Peggy managed her chronic

pain. Mabe, testified that Peggy generally managed the pain with Tylenol. Mabe also

testified that Peggy did not like taking hydrocodone because it made her itch and feel

“muzzy-headed.” RP at 287. When she did take hydrocodone, she would take it with

Benadryl to relieve the itchy feeling she got from taking the hydrocodone. David

William testified that his mother would take Tylenol and ibuprofen for the pain and he

never saw her on any opioid pain medication. Nancy Porter said she knew Peggy took

hydrocodone when her leg was bothering her, usually when she was going to bed, and

Pettis would remind her to take her medication.

On the other hand, Culp testified that her mother had been taking two

hydrocodone on the weekends for years. Culp testified that Peggy did not take the pills

when she was working during the week. When asked where Peggy obtained these pills,

Culp explained that Peggy took some of the hydrocodone from Peggy’s former mother-

in-law after she died in 2014. When it was pointed out that four pills every weekend for

four years would amount to around 800 pills, Culp said it was possible that Peggy took

that many pills from her former mother-in-law’s home.

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The witnesses also disagreed on whether Peggy could swallow pills whole or

needed to crush them up. During his interview with police, Pettis told detectives that his

wife crushed the pills up.

Culp, who had lived with her parents several years prior to Peggy’s death, testified

that her mother could swallow smaller pills but would grind up larger pills like

hydrocodone with a coffee cup and put them in pudding. Culp admitted that in an

interview after her mother’s death, she told law enforcement that she was unaware of her

mother grinding up her medications and that she was not aware of her mother having any

problems swallowing. She testified that after the interview she remembered her mother

would occasionally have coughing attacks after taking a sip of water. One witness, called

by the defense, confirmed that they had witnessed Peggy grind up her pills on one or two

occasions and put it into ice cream.

The State introduced several witnesses who testified that they observed Peggy take

medication whole, without having to grind it up. This included Mabe, David William,

Ibach, and both of the Porters. In addition, a bus driver who had worked with Peggy and

had known her for 20 years, stated that she had observed Peggy take full tablets of

Tylenol. This witness also testified that she did not witness or hear Peggy express any

problems with choking or gagging.

Prior to Peggy’s death, Pettis told several people that Peggy was exhibiting the

signs of Alzheimer’s or dementia. In an interview with police shortly after Peggy’s

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death, Pettis told detectives that Peggy had memory issues or dementia. As examples of

her memory issues he told police about bills that were not paid and an incident in which

he watched Peggy grinding up several days’ worth of pills for their dog. Pettis also

indicated that shortly before her death, Pettis and Peggy had discussed their conclusion

that Peggy had early onset dementia with Peggy’s physician’s assistant (PA), Carol Gahl.

Pettis told detectives that PA Gahl told them that Peggy did not have Alzheimer’s but

suggested she had normal memory loss and recommended that Peggy do puzzles to

strengthen her memory.

At trial, the State introduced evidence to dispute this claim. Nancy Porter testified

that Pettis told her that Peggy’s dementia made her forget to pay an electric bill. But

Nancy believed that it was lack of funds, not memory, that cause the bill to go unpaid.

Nancy did not observe any signs that Peggy had dementia. Likewise, Bill, observed

Peggy become increasingly quiet but did not attribute this to memory loss or dementia.

Ibach testified that six months before Peggy’s death, Pettis drove to her place of work and

indicated that Peggy was suffering from dementia. Ibach testified that she never

witnessed any signs of dementia in Peggy.

Pettises’ Prescription History

The State introduced the testimony of the pharmacy manager where the Pettises

filled their prescriptions. The pharmacy manager testified that in the last 17 years, since

2001, Peggy had filled eight prescriptions for hydrocodone. The two most recent

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prescriptions were for 45 pills in May 2016, the month she was injured by the boar, and

12 pills in February 2018, four months before she died. For the last prescription, she was

instructed to take one-half to one tablet up to “three times a day, as needed for pain.” RP

(Nov. 30, 2021) at 898. Aside from hydrocodone, the pharmacy manager only had a

record of a few pain relievers seeming to be affiliated with dental appointments for

Peggy. The pharmacy manager did not have any records of Peggy filling prescriptions

for cyclobenzaprine or trazodone.

On March 10, 2018, Pettis saw PA Gahl and complained of shoulder pain. He

informed PA Gahl that he had been taking his wife’s hydrocodone. Following this visit,

he was prescribed 24 tablets of hydrocodone. Aside from the hydrocodone, Pettis had

been prescribed 90 tablets of trazodone, a sleep aid, in September 2015. In addition, he

had been prescribed cyclobenzaprine, a skeletal muscle relaxant, in March and June

2018. All three substances were found in Peggy’s system during the autopsy.

The pharmacy manager testified that Pettis filled a prescription for sildenafil,

erectile dysfunction medication, in January 2018 for 20 pills and again in July 2018 for

50 pills.

Life insurance policies

The State produced evidence at trial that at the time of Peggy’s death, there were

three insurance policies on her life naming Pettis as the beneficiary. Peggy had one life

insurance policy through her employer for $250,000 that had been in effect since 2002.

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This policy would cover death from an accident, including drug overdose and suicide.

After Peggy died, Pettis contacted this company in August 2018 and said he was not

going to make a claim.

In the months preceding Peggy’s death, the Pettises applied for two additional life

insurance policies covering Peggy. During that time, Nancy Porter remembered Pettis

asking Peggy regularly, if not daily, if she had called to get the life insurance. On March

22, 2018, an application for life insurance was submitted to Protective Life for Peggy

with Pettis as the beneficiary. After Peggy’s death, Pettis told police that he did not apply

for his own policy because his weight was too high. The Pettises’ insurance agent

testified that Pettis did not apply for his own insurance because he was taking

hydrocodone for an injury and this would significantly increase his premium. The

insurance agent recommended that after he was off his medication for 30 to 60 days, he

could apply for insurance.

Protective Life required Peggy to get a physical before issuing its policy. On June

5, Peggy and Pettis attended a medical examination by PA Gahl. PA Gahl noted that the

visit was “interesting.” RP at 878. While Peggy appeared relaxed, Pettis appeared

somewhat anxious and stressed, indicating that it was urgent that the paperwork for the

examination be completed that day. Throughout the visit Pettis claimed Peggy had

memory issues, that she often forgot to pay the bills, and would interject when Peggy

would start to deny the allegation. The PA did not find any evidence of dementia or

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Alzheimer’s. Nor did the PA have any memory or notes about recommending puzzles or

explaining the difference between Alzheimer’s and dementia.

During the examination, Peggy indicated that she would occasionally experience

pain in her back and hip. The PA was aware that Peggy had a prescription for

hydrocodone filled in February, but this was not a concern. Despite the pain in Peggy’s

back, the PA was able to easily get her into the correct position for the exam. When

asked what she took for the pain, Peggy indicated that she would occasionally take

Tylenol.

Peggy passed the physical and on June 22 an email was sent to Pettis’s email

address notifying him that the policy was in force as of that afternoon. The insurance

agent received a response email the next day that stated: “‘Thank you for putting up with

me and all your help. Are you ready—are you ready to see what you can find for

coverage for me? I currently weigh 280 but working on being 225 by November with the

hopes of being off BP’—which is blood pressure medications—’and my CPAP. A big

hurdle might be I have PTSD,[3] Dave Pettis.’” RP at 803.

In an interview with detectives on October 17, Pettis denied seeing the email

notifying him that Peggy’s policy was effective on June 22.

3

Posttraumatic stress disorder.

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The Pettises also obtained a life insurance policy from AIG on Peggy that was

issued on June 6, 2018, for $150,000, naming Pettis as the beneficiary. Pettis called to

make a claim on this policy on June 27, two days after Peggy died. The claim was denied

because the policy did not cover suicide or accidental overdose.

Evidence of Pettis’s plans to move to New York

On March 22, the same day that Peggy applied for a life insurance policy, Pettis

placed an ad “testing the water” to sell the farm. RP (Nov. 30, 2021) at 1193. Culp sent

a screenshot of this ad to Peggy stating that “[she] thought this was a in-a-few-years

thing, not right now,” to which Peggy responded, “I thought so too.” RP (Nov. 30, 2021)

at 1193-94.

In May, Pettis and Robin began discussing houses for sale in New York. Robin

sent Pettis a list of things she would like, including a window over the kitchen sink and a

bedroom big enough “so the dogs can sleep with me,” to which Pettis replied, “us,” and

Robin responded, “yes sorry us.” Ex. P-10 at 1654. Robin also sent Pettis employment

ads for jobs in New York.

That same month, Pettis contacted a woman who was selling her home, and

indicated his earliest time frame was August but suggested he would see if he could move

up the sale of the farm. He asked for pictures of the window over the kitchen sink.

When the woman later responded that she was listing the property, Pettis responded on

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June 21 that he was “[h]oping [to] be there next month,” and, “wish I could get there

sooner.” Ex. P-10 at 1856.

Peggy’s Death

On June 25, the night of Peggy’s death, the Pettises and the Porters had dinner

together. After dinner, Pettis asked if Peggy wanted ice cream or an ice cream soda.

Nancy testified that this was unusual because Pettis would normally tell Peggy he wanted

ice cream and she would get it for him. Peggy had been sitting in her lift chair and Pettis

went to get the ice cream and brought it to her. Nancy stated that she noticed it looked

like an ice cream soda and that Peggy drank the whole thing. At some point later that

evening, Peggy looked gray, sick, and tired. Peggy went to bed around 6:30 or 7:00,

which was a little unusual for her. Although Peggy looked tired before dinner, it was not

until after dinner that Nancy noticed she looked gray. The Porters stayed in the living

room for another half hour, then went to their bedroom to watch television.

At approximately 10:35 p.m., Pettis called 911 to report that his wife was

unconscious. First responders arrived a few minutes after the call and were met outside

by Pettis. The first responders found Peggy partially in the bathroom and the bedroom,

on her back, and unresponsive. As the first responders were providing aid, Pettis asked

what the probability of life would be in her current condition. During attempted aid

Pettis then asked the first responders to call off further resuscitation and to cease efforts.

At this point, Peggy was declared deceased.

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A deputy sheriff arrived on scene and began asking Pettis questions. Pettis

informed the deputy that earlier in the evening Peggy had taken 10 mg of hydrocodone.

He stated this was from a prescription she had from an injury she received approximately

three years prior. He informed the deputy that she had “one vodka-based beverage” with

the one pill. Both had apparently gone to bed and he could not fall asleep so he went to

the living room around 8:30 p.m. Around 10:30 p.m., after falling asleep on the couch,

he went into the bedroom where he said he found Peggy face down on the floor. He

explained that he found her foot wrapped up in the blanket and water was spilled on the

floor. At this point, he rolled her over and dragged her into the bathroom so he could

perform CPR. He informed the deputy that a clear liquid came out of her mouth when he

was attempting CPR, which he thought was water.

The deputy later testified that he did not observe any blankets that appeared to be

tangled or hanging off the bed. Pettis showed the deputy the lock box in the bedroom

where Peggy kept her medication. Inside the lock box the deputy found a few loose pills

and a prescription bottle for Pettis with one remaining hydrocodone. Another

hydrocodone with a different imprint was found loose in the box as well as seven 50 mg

trazodone pills in a Ziploc bag that Pettis claimed to have received from a friend. There

were no prescriptions in Peggy’s name located in the home.

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After Peggy passed, Ibach cleaned the house and found the pill grinder in the

kitchen. She thought it was odd that it was in the kitchen because Peggy always kept the

pill grinder in the bathroom.

Events Following Peggy’s Death

Following Peggy’s death, family members began contacting the medical

examiner’s office and law enforcement. Mabe contacted law enforcement three days

after Peggy’s death. After hearing from her, law enforcement decided to conduct an

additional interview with Pettis.

In the days after Peggy’s death, Pettis made several phone calls to the medical

examiner. On June 26, 2018, Pettis asked when the results would be available and asked

if she had aspirated on water. On July 2, Pettis contacted the office again explaining that

Peggy had early on-set Alzheimer’s and he thought she may have taken a second dose of

medication. During this same call, he asked if there was anything that could be done to

speed up the results because he needed to receive the life insurance money and bury

Peggy. The medical examiner received a call from Pettis again on August 28, 2018

wanting to know the cause and manner of Peggy’s death. Pettis was unhappy when he

was informed it would take longer due to staff being out of the office. Pettis called again

on September 6, 2018 asking if there was a cause and manner of death and once again

became upset when he was told it would be a few more weeks.

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In September 2018, Pettis contacted law enforcement letting them know his

frustration because he was unable to access any of the life insurance policy money, he

was unable to pay for funeral expenses, and that everything was taking too long. Law

enforcement contacted Heritage Funeral Home and was told that expenses related to

Peggy’s burial had been paid on July 6, 2018.

The Medical Examiner’s Cause of Death

The medical examiner who performed an autopsy on Peggy testified at trial. He

explained that bruising and compressions on Peggy’s face indicated that she was lying

face down with the right side of her face against a hard surface when she died and for

some time thereafter. Although there was a sign of aspiration, the examiner stated this

would be typical right at the time of death but would not cause the death.

The toxicology report detected hydrocodone, cyclobenzaprine, diphenhydramine,

trazodone, and acetaminophen (commonly known as Tylenol) in Peggy’s system. The

cyclobenzaprine, diphenhydramine, trazodone, and acetaminophen were all detected at

levels that would individually be considered therapeutic and nontoxic, however, the

hydrocodone was at a level that is known to be lethal by itself. In his opinion, “the death

was caused by the hydrocodone toxicity [ ] in combination with the presence of the other

drugs or the exposure to the other drugs.” RP (Nov. 30, 2021) at 496. He was unable to

determine how many hydrocodone pills would have yielded this result. Ultimately, the

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medical examiner could not opine whether Peggy knowingly or unknowingly ingested

the medications.

Pettis’s Several Versions of Peggy’s Death

Pettis told different versions of how Peggy died to several people. He told first

responders on the scene that Peggy took one hydrocodone with a vodka-based beverage

earlier that night. Pettis also told them that he went to bed with Peggy but could not sleep

so he went back out to the couch and fell asleep. He woke around 10:30 p.m. and found

Peggy lying face-down on the floor with her foot wrapped in a blanket and water spilled

on the floor.

Four witnesses testified that Pettis admitted to them that he crushed up the

hydrocodone pills and placed them in Peggy’s drink the night she died. Ibach testified

that Pettis told her and Culp that the night Peggy died he had crushed up hydrocodone

and put it into her ice cream. Culp substantiated this.

David William testified that his father’s story changed several times in the two

weeks after his mother’s death. At first Pettis told him she took a hydrocodone and went

to bed. Next, he told David William that she had a drink and a hydrocodone, and then

went to bed. And then it was that she had ice cream and alcohol and went to bed.

Finally, it was that he crushed up some hydrocodone, put it in the ice cream, and gave it

to Peggy.

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Pettis told Robin that after Peggy went to bed he fell asleep in the living room, and

when he woke up, he found Peggy face down on the floor near the bathroom. Pettis

informed Robin that he would often grind up her pills and make ice cream floats with

peach flavored alcohol and that on the night she died, he ground up her pills.

Pettis told Bill and Nancy that Peggy had aspirated on water. Pettis also informed

Mabe that he thought Peggy may have had a heart attack because he was taking a nap,

heard a thump, woke up, and found her on the floor tangled in the sheets. Within 15

minutes after telling this story, he told Mabe she might have overdosed on hydrocodone.

Pettis also spoke with Sandra Brantley, Peggy’s co-worker, the morning after

Peggy’s death and explained that he felt her get out of bed, and once he discovered she

had not come back, he found her lying on the floor. Another woman, who Pettis met on

an online dating website, testified that she spoke with Pettis about a month after Peggy’s

death and that he told her that his wife had aspirated on water.

Pettis’s Interviews with Police

Following Peggy’s death, Pettis gave two interviews with law enforcement. In his

first interview, approximately three weeks after Peggy’s death, he told detectives that

Peggy had early onset dementia. Pettis also told detectives that Peggy was taking

hydrocodone for pain in her leg and it “got to the point where she was taking three at a

time.” Ex. P-26 at 11:34:25. Pettis indicated that Peggy had her own prescription and

would use his prescription pills as well, but did not mention any other prescriptions in the

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house. Pettis told detectives that on the night Peggy died, she crushed hydrocodone with

a pill grinder, mixed it with rum, and added it to an ice cream float. He suspected that

this caused her death. Pettis told detectives they were married for 33 years, there had

never been a harsh word between them, and they were best friends.

When Robin’s name was brought up during this interview, Pettis said she was his

best friend from high school in New York. He told detectives that Peggy knew he talked

to Robin and it was Peggy’s wish that if anything happened to her, Pettis should be with

Robin. He also indicated that he and Peggy had plans to sell the farm and move back to

New York together. Toward the end of the interview, Pettis told detectives that no one

would ever murder Peggy because she was too nice and she would never commit suicide

because she was never depressed.

The second interview was conducted on October 17, about four months after

Peggy’s death and the same day that police executed a search warrant on Pettis’s home.

Detectives questioned Pettis about the drugs Peggy was taking. They told Pettis that the

toxicology report indicated there was no alcohol in Peggy’s system, but ten times the

amount of therapeutic hydrocodone. When asked, Pettis said the night before she died,

Peggy took trazadone with the hydrocodone but it gave her a hangover and she indicated

she would not do that again. When detectives told Pettis that there was trazadone in

Peggy’s system, Pettis denied having a prescription for trazadone and claimed he got a

few pills from a friend. When confronted with the high number of hydrocodone pills he

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claimed Peggy was taking on a regular basis, Pettis mentioned that when Peggy’s former

mother-in-law died, Peggy took three 90-count bottles of hydrocodone from her home.

Later in the interview, Pettis denied grinding up Peggy’s pills or putting them in her drink

on the night she died. Instead, he insisted that Peggy brought out ground up pills and she

put them in her drink.

Pettis also told detectives that he had talked to Robin only a couple times since

police questioned her the month prior. When Pettis described his interactions with

Robin, he said that he was completely honest with Peggy about his contacts with Robin.

Pettis indicated that when he visited Robin in March, Robin showed him a message from

Peggy to Robin indicating that if anything ever happened to her (Peggy), that Pettis could

be with Robin.

When confronted about his inconsistent claims that Peggy was his better half but

he admittedly had an intimate relationship with Robin, Pettis said his relationship with

Robin happened in November and he felt so guilty that he came home early and told

Peggy everything. He said that after November he put the brakes on his relationship with

Robin and nothing ever happened. Still, Pettis said Peggy and Robin communicated

constantly over the next several months.

When asked about filling prescriptions for erectile dysfunction after coming back

from New York and within weeks after Peggy’s death, Pettis said the medication was

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No. 38726-7-III

State v. Pettis

recommended by his doctor because his weight was causing blood loss to his testicles.4

Pettis claimed that when he went to New York, his pills stayed home. When asked about

searches on his computer for the effects of hydrocodone, Pettis said that Peggy had

entered this search and said he now suspected that Peggy was suicidal because she was in

so much pain.

Charges, Pretrial Motions, and Proceedings

One year after Peggy’s death, David was charged with first degree premeditated

murder. The State advised the court that it anticipated introducing voluminous records

and moved in limine for permission to call two expert witnesses who would help the jury

interpret and summarize these records. The proposed summaries concerned financial

records and digital communications. The State indicated the communication records

consisted of approximately 2100 pages and would be presented through the testimony of

an analyst named Mark Voigtlaender. At the hearing, the State indicated that it was still

working with defense counsel to see if the parties could agree on what evidence was

admissible.

4

The doctor who prescribed these pills testified at trial that Pettis asked for them

to address erectile dysfunction and the doctor had never heard of the explanation Pettis

gave to law enforcement. RP at 708-09.

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No. 38726-7-III

State v. Pettis

Testimony at Trial

On appeal, Pettis contends that several witnesses provided improper opinions of

his guilt. Specifically, he challenges four portions of testimony: 1) Voigtlaender’s slide

subtitled “Pathway to Premeditation,” 2) Voigtlaender’s inference that Pettis was an

“insider threat” as well as testimony that certain messages were “interesting” and

“noteworthy,” 3) David William’s testimony that he had come to believe his father had

something to do with his mother’s death, and 4) Culp’s testimony that her mother’s

family had suspicions and she had curiosities about her mother’s death.

Voigtlaender testified at trial that he was the data analyst and “supervisor for the

regional intelligence group for the Spokane County Sheriff’s Office.” RP (Nov. 30,

2021) at 714. He became involved with this case when he was asked to aggregate and

analyze data related to the case such as cell phone records, emails, and social media

information. To summarize his analysis, he prepared a slide presentation that was used as

a demonstrative exhibit for the timeframe of events and used at trial without objection.

One of the slides was titled “Timeframe of Events” with a subtitle “Pathway to

Premeditation.” Br. of Resp’t, Ex. P-12, at 2. Other than this subtitle, the analyst did not

use the word “premeditation” in his testimony.

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No. 38726-7-III

State v. Pettis

Br. of Resp’t, Ex. P-12, at 2.

Voigtlaender testified that he aggregated data between November 2017 and the

summer of 2018, with several cutoff points in June, July, and August. The significant

spots he noted in the presentation were from November, January, March, and June.

Specifically, he looked at communication between Pettis and Peggy and between Pettis

and Robin.

Voigtlaender testified that based on his analysis of these messages, it appeared that

Pettis was sending messages to Robin using Peggy’s social media account. To support

this opinion, he pointed to messages from November 2017 to show that Peggy generally

communicated with small words and single sentences. He also noted specific

communications from January 2018, where Pettis admitted that he was using Peggy’s

account to communicate with another person.

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No. 38726-7-III

State v. Pettis

Voigtlaender pointed to three messages from March 2018 that suggested Pettis

was using Peggy’s account to communicate with Robin. The first message to Robin was

sent on March 13, shortly after Pettis returned from New York, where Peggy’s account

says:

Me too. He is a train wreck. Robin, he is so in love with you and petrified

of losing you. I know there’s a connection between the two of you and

that’s a good thing. We both love this old man a lot. I am so glad the two

of you have reconnected. I know it might be weird, but I would rather

share his—this than lose his love.

RP (Nov. 30, 2021) at 733.

Voigtlaender opined that this was the first message from Peggy’s account that did

not appear to be written by her. To support this opinion, he pointed to specific words

commonly used by Pettis and Peggy. He also pointed out that the comment from a

purported wife about sharing her husband was noteworthy.

Voigtlaender also opined that a message from Peggy’s account to Robin, sent on

March 18, 2018, was from Pettis. This message read:

He is hurting bad. He has lost so much in the past month and dealt with so

many emotions. He is at a point where he needs you the most. Robin, I

know you love him and I know your [sic] in love with him and that’s okay.

It gives me comfort knowing that when I’m gone, he has a fishing buddy

and someone to love him. When the two of you were talking every day, he

always had a smile on his face. Lately I don’t know who he is.

RP (Nov. 30, 2021) at 735. To support his opinion, Voigtlaender compared references to

“fishing” throughout the collective communications, and noted that of the 50 instances,

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No. 38726-7-III

State v. Pettis

49 were Pettis mentioning fishing in his Facebook messages, but this had been the only

time fishing was mentioned by Peggy.

Voigtlaender testified that another notable transition was the next part, “when I’m

gone, he has a fishing buddy,” which, when compared to the previous message about

sharing Pettis, indicated a mental shift from sharing to an expectation of being gone.

Voigtlaender pointed to the grammatically incorrect use of “your” that was used in the

same incorrect context in another message that Pettis messaged to someone else.

The third exchange of messages that Voigtlaender considered noteworthy occurred

on March 23 between Peggy’s account and Robin. Voigtlaender testified that earlier that

evening Robin had responded negatively to receiving a nude photograph from Pettis.

Pettis asked Robin to call him but she did not respond to Pettis, instead contacting Peggy

on social media and asking Peggy to call her. Peggy’s account responded that she was

not feeling well and did not want to call, but the messaging between the two continued.

Voigtlaender then read the following exchange of messages:

[Peggy’s account]: I think [Pettis] was looking forward to talking to you

tonight.

....

[Robin]: He is too needy for me to deal with when my head hurts. I don’t

know what is going on in his head, but he needs to realize that he needs to

upfix himself and get happy with life and come to terms with the fact that

I’m not the answer to his happiness. I just need to rest my head against the

back of the recliner in a dark room. I told him to call me on the phone.

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No. 38726-7-III

State v. Pettis

....

[Robin]: [Pettis] is the biggest pain of all.

...

[Peggy’s account]: Wow. I thought you loved him.

....

[Robin]: Do not know how you dealt with him being emotional all these

years.

[Peggy’s account]: He has his moments but he is a good man. . . He never

had issues until the mugging. It messed him up.

[Robin]: I loved him. I am not in love with him. If he had pulled that sick,

old, poor me routine with me, our intimate touches would probably not

have happened. I love him as a best friend. I don’t think he has realistic

expectations of me.

....

[Peggy’s Account]: He really changed when you got distant. He said you

don’t even do words with him anymore. I will talk to him, but if he loves

you as much as he me, you’re special. Oh, poor me.

....

[Robin]: I know he really has traumatic damage from the mugging. I

really want to be here for him. I just can’t consider him—or I just can’t

consider being a homewrecker in your family’s eyes.

....

[Peggy’s account]: PLEASE DO NOT CONSIDER YOURSELF A

HOMEWRECKER!!!! He loves you and he loves me too, and I am good

with that. If something happens, I need to know that he will be looked after

and I think you’re the best choice for that.

....

I think you love him more than you’re letting on, even though he’s a pain in

the ass and that’s okay.

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No. 38726-7-III

State v. Pettis

I just snuck a look at his phone and I don’t see where you told him to call.

Maybe you forgot to hit send.

....

Well, I’m headed to bed too. Love you and I’m sure he does too. Sleep

tight.

RP (Nov. 30, 2021) at 740-744.

Approximately one minute after this last message from Peggy’s account, Pettis

messaged Robin, “Good night. Love you.” RP at 744.

Voigtlaender testified that several details suggested Pettis was using Peggy’s

account on this night. He also pointed out that Peggy’s account mentions, “if something

happens,” which is different from the first message that suggested sharing Pettis and the

message on March 18 which mentions “when I’m gone.” RP at 745.

As Voigtlaender was explaining that Pettis seemed to be exhibiting distraught

behavior, he began to testify that Pettis “was in a mindset where—,” when the court

sustained defense counsel’s objection. RP at 831-32.

The prosecutor then turned to the significance of transitions pointed out by the

analyst.

So one thing that’s—that’s interesting that I’ve used in other investigative

arenas, whether it be—particularly, let’s look at counter-intelligence move:

When someone is an insider threat and decides to do harm to people that

they have sworn to uphold or love, and that person then does something

violent, we look at patterns of what changes, if there’s something in the

way they communicate that communicates where their mindset is,

particularly if it’s around a time stamp or time frame where there’s a lot of

28

No. 38726-7-III

State v. Pettis

emotional upheaval, are there phrases, are there indications of what that

individual is looking at or what they’re doing.

To me these three conversations, that—the phraseology, the timing,

the internet protocol addresses, and the type of conversation that was being

committed at those times—or that was being made on Peggy’s account

seem to fit a time where there was—particularly with these phrases, the

first message a wife was saying to a potential lover that I’m willing to share

my husband with you. The second message was that when I’m gone, which

is a transition from sharing to saying he’s all yours. And then to the third,

if something happens. So that progression from those three messages, that

looked to be from [Pettis], became a significant item of potential

consideration in this trial.

RP (Nov. 30, 2021) at 832-33. Voigtlaender described the messages as “noteworthy,”

especially in light of what else was happening. However, when he began to explain that

this included Pettis’s mental and emotional state, defense counsel’s objection to narrative

was sustained and Pettis’s state of mind was not raised thereafter.

Pettis also challenges portions of David William’s and Culp’s testimony. During

David William’s testimony, the following exchange took place in which he was asked

whether he expressed concerns about his mother’s death to law enforcement:

Q And regarding that conversation, did you express to law enforcement

your concerns about the death of your mother?

A Yes, I did.

Q What were those concerns?

A That there was something else. I wanted to know the truth of what

happened to Mom.

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No. 38726-7-III

State v. Pettis

Q And did you come to develop a belief, based upon the information you

received from law enforcement?

A Yes

Q And what’s that?

RP (Nov. 30, 2021) at 337-38. Immediately after this line of questioning defense counsel

objected to speculation, which the judge overruled. David William answered the

question by stating “I came to believe that my dad had something to do with my mother’s

death.” RP (Nov. 30, 2021) at 338.

A detective assigned to the case indicated that he began investigating the Pettises’

life insurance policies and medical records after an interview with Pettis on July 10, and

then spoke with family members who “raised some issues that made it appear

suspicious.” RP (Nov. 30, 2021) at 587-88.

During Culp’s testimony, the State asked her whether she remembered her

interview with law enforcement following her mother’s death:

Q at that point did you know that there were suspicions about the death?

A I knew that my mother’s family had suspicions.

Q Just your mother’s family?

A My mother’s family, yes.

Q You actually – you – you made a call in the days after she died with

suspicions, correct?

A My family had given me cause to have curiosities.

Q Just your family?

A My mother’s family, yes.

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No. 38726-7-III

State v. Pettis

Q Okay. What about your dad?

A No.

Q So nothing that your dad said --

A My dad was --

Q -- to you --

A My dad was grieving. Everybody reacts to grief differently.

Q Do you recall contacting the medical examiner’s office?

A Yes, I do.

Q Okay. Do you recall having a conversation with one of the persons who

returned your call?

A To my recollection, my question to them was, “If a family had concerns,

then what would we do about it?”

Q Do -- do you recall saying that you had concerns about the death?

A I do not recall saying that myself. No.

Q Do you recall saying that your dad had been making statements since

the death such as that he had to crush the hydrocodone and put it in her

ice cream for her to swallow them?

A I may have said that. Yes. I know my dad did that night.

Q So that night, the night that she died, he crushed up her hydrocodone

and put them in her drink for her?

A That’s what I was told, yes.

Q By your dad?

A When I had the conversation with him, yes.

RP (Nov. 30, 2021) at 981-92.

Finally, the State elicited testimony from the medical examiner that he had spoken

with Culp and documented her concerns and advised her to file a police report.

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No. 38726-7-III

State v. Pettis

ANALYSIS

Pettis contends that he was denied his constitutional right to a fair trial by an

impartial jury when the State elicited improper opinions of guilt from several witnesses.

The State responds that Pettis failed to raise an appropriate objection to any of the

challenged evidence. Because the errors were not preserved, the State contends that they

are reviewable only if they rise to the level of manifest constitutional error. While

acknowledging that Voigtlaender’s slide was improper, the State argues that Pettis fails to

establish a manifest error and any such error is otherwise harmless.

1. STANDARD OF REVIEW

Our standard of review depends on whether the alleged errors were preserved at

trial. Pettis does not contend that he preserved his challenges to the opinion testimony of

family members, but he argues that defense counsel repeatedly objected to Voigtlaender’s

improper testimony. When Voigtlaender was testifying, Pettis raised two objections, one

for “speculation” and one for “narrative.” Both objections were related to Voigtlaender’s

testimony about Pettis’s state of mind and both objections were sustained. These

objections did not preserve the issue raised on appeal: whether the witness was providing

an improper opinion of Pettis’s guilt.

Requiring preservation through objections “serves the goal of judicial economy by

enabling trial courts to correct mistakes and thereby obviate the needless expense of

appellate review and further trials.” State v. Lazcano, 188 Wn. App. 338, 356, 354 P.3d

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No. 38726-7-III

State v. Pettis

233 (2015). Here, defense counsel’s objections did not apprise the State or the court of

any claim that the witness was providing improper opinion testimony, much less provide

an opportunity to correct the alleged error. Because this was not the specific objection at

trial, Pettis did not preserve the issue of improper opinion testimony. See State v. Guloy,

104 Wn.2d 412, 422, 705 P.2d 1182 (1985) (noting that a party may only assign error in

the appellate court on the specific ground of the evidentiary objection made at trial).

We generally decline to review errors that were not preserved at trial unless the

defendant can establish a manifest constitutional error. State v. O’Hara, 167 Wn.2d 91,

97-98, 217 P.3d 756 (2009); RAP 2.5(a). This rule comes from the principle that defense

counsel is obligated to seek a remedy as errors occur or shortly thereafter. Id. at 98.

2. MANIFEST ERROR

Pettis argues that even if he failed to preserve the issue below, the admission of

improper opinion testimony from the data analyst and family members is reviewable as

manifest constitutional errors. The general rule for waiver includes a narrow exception

when the claimed error is a “manifest error affecting a constitutional right.” RAP 2.5(a);

State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). To determine whether a

manifest constitutional error exists courts will apply a four-step process:

(1) We first determine whether the alleged error is in fact a constitutional

issue; (2) next, we determine whether the error is manifest, that is, whether

it had “practical and identifiable consequences”; (3) we then address the

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No. 38726-7-III

State v. Pettis

merits of the constitutional issue; and (4) finally, we pass upon whether the

error was harmless.

State v. Barr, 123 Wn. App. 373, 380, 98 P.3d 518 (2004) (quoting State v. Lynn, 67 Wn.

App. 339, 345, 835 P.2d 251 (1992)).

Looking at the first factor, Pettis asserts that Voigtlaender and certain family

members provided improper opinion testimony of his guilt. If true, the alleged error is

constitutional. A witness’s opinion on the defendant’s guilt invades the province of the

jury and can implicate a constitutional right. See State v. King, 167 Wn.2d 324, 331, 219

P.3d 642 (2009); Barr, 123 Wn. App. at 380-81.

Next, we must determine if the alleged errors are manifest. Constitutional error is

not necessarily manifest error. Kirkman, 159 Wn.2d at 934-35. Instead, manifest error is

a narrow exception to the general rule of waiver. Id. at 935. “Admission of witness

opinion testimony on an ultimate fact, without objection, is not automatically reviewable

as a ‘manifest’ constitutional error.” Id. at 936. “But, ‘an explicit or almost explicit’

opinion on the defendant’s guilt or a victim’s credibility can constitute manifest error.”

King, 167 Wn.2d at 332 (quoting Kirkman, 159 Wn.2d at 936).

Thus, in order to demonstrate manifest error, Pettis must show that the witnesses

provided explicit or nearly explicit opinions of guilt. “Whether testimony constitutes an

impermissible opinion on guilt or a permissible opinion embracing an ‘ultimate issue’

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No. 38726-7-III

State v. Pettis

will generally depend on the specific circumstances of each case.” City of Seattle v.

Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993).

To determine whether statements are impermissible opinion testimony, a

court will consider the circumstances of a case, including, “(1) the type of

witness involved, (2) the specific nature of the testimony, (3) the nature of

the charges, (4) the type of defense, and (5) the other evidence before the

trier of fact.”

King, 167 Wn.2d at 332-33 (internal quotation marks omitted) (quoting Kirkman, 159

Wn.2d at 928).

Not all opinion testimony that touches on an ultimate issue at trial is impermissible.

Instead, the evidence rules provide that certain opinion evidence is permissible even when

it embraces an ultimate issue of fact. ER 701, 704. Moreover, evidence that is

voluminous, and which cannot conveniently be examined in court may be presented in the

form of charts, summaries, or calculations. ER 1006. Thus, “testimony that is not a direct

comment on the defendant’s guilt or on the veracity of a witness, is otherwise helpful to

the jury, and is based on inferences from the evidence is not improper opinion testimony.”

Heatley, 70 Wn. App. at 578.

A. Data Analyst Testimony

Pettis contends that Voigtlaender commented on his guilt in two ways: first when

he presented a slide subtitled “Pathway to Premeditation,” and again when he referred to

Pettis as an “insider threat” and pointed to certain messages as “interesting” and

“noteworthy.” Br. of Appellant at 53-54.

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No. 38726-7-III

State v. Pettis

Turning first to Voigtlaender’s slide, the State concedes that the slide with the

subtitle “Pathway to Premeditation,” was an improper opinion on the defendant’s guilt.

Br. of Resp’t at 92. We agree that this was improper opinion evidence and the error was

manifest. Applying the King factors, we note that Voigtlaender testified as a law

enforcement officer, which can be particularly prejudicial because “police officers’

testimony carries an ‘aura of reliability.’” State v. Montgomery, 163 Wn.2d 577, 595,

183 P.3d 267 (2008) (quoting State v. Demery, 144 Wn.2d 753, 765, 30 P.3d 1278

(2001)). In addition, the slide used the word “premeditation,” which parroted the legal

standard for guilt used in the to-convict jury instruction. See City of Seattle v. Levesque,

12 Wn. App. 2d 687, 710, 460 P.3d 205 (2020) (officer’s opinion on ultimate fact that

parroted the legal standard of guilt used in jury instructions was an improper opinion of

guilt). There is no question that Voigtlaender would not be allowed to provide an explicit

opinion that Pettis acted with premeditation. See State v. Montgomery, 163 Wn.2d 577,

587-88, 183 P.3d 267 (2008) (officer’s testimony that the officer “felt very strongly” that

the defendant was buying ingredients to manufacture methamphetamine was an improper

opinion on the defendant’s intent). And yet the sub-heading in Voigtlaender’s slide was

almost as explicit. Because this comment was a nearly explicit comment on Pettis’s guilt,

Pettis has demonstrated that this comment was a manifest error affecting a constitutional

right.

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No. 38726-7-III

State v. Pettis

Next, we consider Pettis’s challenges to other comments made by Voigtlaender.

Pettis contends that Voigtlaender’s testimony was peppered with comments that

implicitly conveyed Voigtlaender’s opinion of Pettis’s guilt. Specifically, Pettis contends

that Voigtlaender not only summarized the messages, but provided opinion testimony

about which ones were “significant” or “noteworthy.” He contends that Voigtlaender

testified to using a “counter-intelligence move” to determine that Pettis had become “an

insider threat and decide[d] to do harm to people that [he had] . . . sworn to uphold or

love.” RP at 833, 832; Appellant’s Br. at 53 (alteration in original).

We disagree with Pettis’s characterization of Voigtlaender’s testimony and his

argument that Voigtlaender’s opinion testimony was manifest error. The purpose of

Voigtlaender’s testimony was to summarize 100,000 lines of data, help the jury recognize

patterns within the data, and demonstrate how certain words and phrases within the

messages could show identity and planning. Voigtlaender did not testify that Pettis was

an insider threat. Instead, Voigtlaender referred to his own experience and training in

counter intelligence, referenced a hypothetical person, and then applied this training to

the data in this case to explain why the jury should focus on certain messages among the

thousands.

Pettis nevertheless contends Voigtlaender used words and phrases that implied he

was guilty. In support of this position, Pettis relies on Barr. 123 Wn. App. 373. In Barr

a police witness testified that he had received special training to detect body language and

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No. 38726-7-III

State v. Pettis

verbal cues that demonstrated deception. Id. at 378. When used on the defendant, the

officer testified that he observed signs of deception. Id. On appeal, this court rejected the

State’s argument that the officer did not testify that the defendant was being deceptive but

was only testifying as to his observations. Id. at 382. Instead, we found that the

“testimony embodied an opinion by the officer that [the defendant] had committed the

offense and the officer had the training to determine that [the defendant’s] statements and

body language were proof that this was true.” Id. We distinguished Heatley by noting

that the officer’s opinion was based on his experience and observations and was helpful

to the trier of fact whereas in Barr there were no recognized techniques for determining

deception from body language. Heatley, 70 Wn. App. 573; Barr, 123 Wn. App. at 383.

Barr is both factually and legally distinguishable. Here, Voigtlaender summarized

large amounts of data and, based on his experience and training, provided opinions on

patterns, unique words, and phrases to help the jury decipher and interpret the evidence.

The decision in Barr preceded the Supreme Court decisions in Kirkman and King which

held that improper opinion testimony is not manifest unless it is an explicit or nearly

explicit opinion of guilt. Kirkman, 159 Wn.2d at 936; King, 167 Wn.2d at 332. Here,

Pettis acknowledges that Voigtlaender did not use the word “guilty,” but contends that

Voigtlaender implied his opinion of Pettis’s guilt by pointing out that certain messages

were “significant,” and “noteworthy.” Appellant’s Br. at 54. While we disagree that

Voigtlaender implied guilt, Pettis fails to demonstrate that Voigtlaender’s testimony

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No. 38726-7-III

State v. Pettis

provided explicit or nearly explicit opinions of guilt that are necessary to show manifest

error.

B. Family Members and Medical Examiner

Pettis also argues that the State introduced evidence of an improper opinion of

guilt from Culp and David William, which were compounded by testimony from the

medical examiner and detective. We address these challenges in turn.

During redirect, the State asked David William whether, based on information he

received from law enforcement, he had developed a belief. Over an objection based on

speculation, David William responded that he “came to believe that my dad had

something to do with my mother’s death.” RP at 338. Arguably, this issue was

preserved. Regardless, we find that it constitutes a near explicit opinion on Pettis’s guilt

and was therefore manifest error.

While David William did not testify that he thought his father was guilty or that

his father murdered his mother, the only issue at trial was whether Pettis ground up the

hydrocodone and put it in Peggy’s drink on the night she died with the intent to murder

her. Given the focus of Pettis’s defense, David William’s testimony, that he believed his

father had something to do with his mother’s death, was a near explicit opinion on

Pettis’s guilt.

While we conclude that David William’s opinion testimony was manifest error,

we do not reach the same result with respect to Culp’s testimony and the testimony of the

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No. 38726-7-III

State v. Pettis

detective and medical examiner. Testifying that family members had “concerns,” or even

that Culp had concerns about Peggy’s death is not the same as testifying to a conclusive

belief of Pettis’s guilt. Instead, the testimony was introduced to discredit Culp’s

inconsistent trial testimony and show why the witnesses took certain steps, such as

contacting the medical examiner or law enforcement, or taking steps to investigate

insurance policies and medical records. Neither Culp’s testimony nor the testimony of

the detective or medical examiner constituted an explicit or nearly explicit opinion of

Pettis’s guilt.

3. HARMLESS ERROR

Pettis has demonstrated two instances of manifest constitutional error. The last

step in our analysis is to determine whether the errors are harmless. Barr, 123 Wn. App.

at 380. For a constitutional error to be harmless, the State must establish “beyond a

reasonable doubt that any reasonable jury would have reached the same result absent the

error.” State v. Quaale, 182 Wn.2d 191, 202, 340 P.3d 213 (2014). Put differently, we

must be convinced “that the error did not contribute to the verdict.” State v. Heng, 2

Wn.3d 384, 395, 539 P.3d 13 (2023).

Here, we find the two errors were harmless beyond a reasonable doubt. First, we

note that the errors were relatively minor and fleeting compared to the overall evidence

produced at trial. The trial lasted seven days. The State called 41 witnesses and defense

called three witnesses. Voigtlaender’s slide included the words “Pathway to

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No. 38726-7-III

State v. Pettis

Premeditation,” but neither Voigtlaender nor the prosecutor uttered these words during

trial. Furthermore, the slideshow was demonstrative and did not go back with the jury

during deliberations.

Likewise, David William’s admission that he came to believe his father had

something to do with his mother’s death, while an improper opinion, was fleeting and not

repeated. Neither improper comment was mentioned during closing argument or used by

the State to support its position.

In addition, the State’s evidence was overwhelming. The State introduced

evidence that Pettis was having an affair and making plans to start a new life with Robin

on the east coast. Meanwhile, Pettis was telling people that Peggy had dementia while

insisting on obtaining two additional life insurance policies on Peggy, both of which went

into effect days before she died.

In the weeks after Peggy’s death, Pettis told different stories about how Peggy

died to friends and family members. Four witnesses testified that Pettis admitted to them

that he crushed up hydrocodone and put it in Peggy’s drink the night she died. A fifth

witness testified that she saw Pettis prepare Peggy’s drink that night and thought it was

unusual.

Despite Pettis’s claim that Peggy was in so much chronic pain that she was taking

three hydrocodone’s a day, she passed a physical three weeks before she died. And

despite Pettis’s claim that Peggy took three bottles of hydrocodone from her former

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No. 38726-7-III

State v. Pettis

mother-in-law four years before her death, Pettis did not show first responders any of

these bottles on the night of her death or mention these pills during his first interview

with law enforcement. Instead, the only medications Pettis showed first responders was a

lock box with his prescription for hydrocodone and some loose pills including trazodone

which had also been prescribed to Pettis and was found in Peggy’s system.

In light of the evidence in this case and the nature of the errors, we are satisfied

beyond a reasonable doubt that the errors did not contribute to the jury’s verdict.

4. INEFFECTIVE ASSISTANCE OF COUNSEL

Pettis contends that in the event we determine that the challenged testimony is not

reviewable as a manifest constitutional error, then counsel was ineffective for failing to

object. Of the four areas of testimony that Pettis claimed were improper, we reviewed two

as manifest constitutional error. Here, we consider whether counsel was constitutionally

ineffective for failing to object to the other two areas of testimony: portions of

Voigtlaender’s testimony and the testimony that family members had suspicions.

Both the Sixth Amendment to the United States Constitution and art. I, § 22 of the

Washington State Constitution guarantee effective assistance of counsel. State v. Grier,

171 Wn.2d 17, 32, 246 P.3d 1260 (2011). Claims of ineffective assistance of counsel are

reviewed de novo. State v. Hamilton, 179 Wn. App. 870, 879, 320 P.3d 142 (2014). A

successful claim requires the defendant to demonstrate two components: that counsel’s

performance was deficient, and that deficient performance caused prejudice. Strickland

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No. 38726-7-III

State v. Pettis

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Representation is deficient if after considering all circumstances, it falls “‘below an

objective standard of reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland, 466

U.S. at 688). Further, “[p]rejudice exists if there is a reasonable probability that except

for counsel’s errors, the result of the [trial] would have been different.” Hamilton, 179

Wn. App. at 879. To prevail on an ineffective assistance claim, a defendant must

overcome a “strong presumption that counsel’s performance was reasonable.” State v.

Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

The defendant has the burden to “show in the record the absence of a legitimate

strategic or tactical reasons supporting the challenged conduct by counsel.” State v.

Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424 (2021). “A classic example of trial tactics is

when and how an attorney makes the decision to object during trial testimony.” Id. If a

defendant’s ineffective assistance of counsel claim is based on the “failure to object, then

‘the defendant must show that the objection would likely have succeeded.’” Id. (quoting

State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019)). Nevertheless, “a few or

even several failures to object are not usually cause for finding that an attorney’s conduct

has fallen below the objective standard of conduct.” Id. at 250. “Only in ‘egregious

circumstances, on testimony central to the State’s case, will the failure to object

constitute incompetence of counsel justifying reversal.’” Id. at 248 (quoting Crow, 8

Wn. App. 2d at 508).

43

No. 38726-7-III

State v. Pettis

Pettis fails to demonstrate that defense counsel’s performance fell below an

objective standard of reasonableness and was deficient. First, Pettis fails to demonstrate

that an objection to Voigtlaender’s testimony would have been sustained. Voigtlaender

testified that “[w]hen someone is an insider threat and decides to do harm to people that

they have sworn to uphold or love, and that person then does something violent, we look

at patterns of what changes.” RP at 832. He then pointed out changing patterns in the

communications contained in the State’s exhibit.

Under the evidence rules, expert witnesses are allowed to express opinions on

their area of expertise when it will help the trier of fact. ER 702; ER 701; State v.

Montgomery, 163 Wn.2d 577, 590, 183 P.3d 267 (2008). The evidence rules do not

allow any witness to testify to personal opinions of the defendant’s guilt, “the intent of

the accused, or the veracity of witnesses.” Id. at 591. But, “[t]he mere fact that an expert

opinion covers an issue that the jury has to pass upon does not call for automatic

exclusion.” Id. at 590.

Here, Voigtlaender testified that he looked through thousands of lines of data for

communications by Pettis that demonstrated changing patterns. This helped the jury

decide which areas of the voluminous exhibit to focus on and why. Moreover, while

Voigtlaender’s opinion testimony provided evidence of Pettis’s guilt, his testimony did

not express a personal belief of Pettis’s guilt.

44

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State v. Pettis

Similarly, Pettis fails to demonstrate that objections to testimony that family

members had suspicions or curiosities would have been sustained. Culp testified that she

contacted the medical examiner because other family members had suspicions and she

had curiosities about her mother’s death. The medical examiner testified that Culp

contacted him with suspicions and he advised her that if she was concerned she should

contact law enforcement. A detective testified that he decided to pursue further

investigation based on suspicions of family members. Unlike David William’s

testimony, that he came to believe his father had something to do with his mother’s death,

these “suspicions” were generalized, nonspecific, and introduced to show why Culp

called the medical examiner and why the detective pursued an investigation.

In addition, there may have been strategic reasons for not objecting to this

testimony. Culp testified that while her mother’s family had given her “cause to have

curiosities,” her father had done nothing to raise suspicion. RP at 981-92. Defense

counsel may have wanted the jury to hear this evidence.

Even if the trial court would have sustained objections to these areas of testimony,

Pettis fails to demonstrate prejudice. Pettis would need to demonstrate a reasonable

probability that if trial counsel had not erred, the result of the trial would have been

different. Grier, 171 Wn.2d at 34. We are confident that the outcome of the trial would

have been the same even if Voigtlaender had not used the term “insider threat,” and if the

witnesses had not testified that some family members had concerns about Peggy’s death.

45

No. 38726-7-III

State v. Pettis

Pettis does not meet his burden of showing counsel was constitutionally

ineffective.

5. LEGAL FINANCIAL OBLIGATIONS

Pettis contends that recent amendments to legal financial obligations (LFOs) apply

to his case and require that certain LFOs be struck from his judgment and sentence. The

State concedes that we should strike his VPA and DNA collection fee. Under former

RCW 7.68.035(1)(a) (2018), a judge was required to impose the $500 penalty assessment

for one or more felony or gross misdemeanor convictions. However, last year, legislation

amended this statute. See LAWS OF 2023, ch. 449, § 1. This amendment had an effective

date of July 1, 2023, and included a provision instructing a sentencing court to not

impose the penalty assessment if the court found a defendant indigent at the time of

sentencing. See LAWS OF 2023, ch. 449, § 1. Additionally, former RCW 43.43.754

(2021) provided that the DNA collection fee was mandatory. However, also effective

July 1, 2023, the legislature eliminated this provision. LAWS OF 2023, ch. 449, § 4(2).

Although both amendments took place after Pettis’s sentencing, it applies to cases

pending appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023).

46

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State v. Pettis

Because the sentencing court found Pettis indigent and his case is pending appeal,

we remand for the superior court to strike the VPA and DNA fee. Otherwise, we affirm

Pettis’s conviction and sentence.

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.

_________________________________

Staab, J.

I CONCUR:

_________________________________

Lawrence-Berrey, C.J.

47

No. 38726-7-III

FEARING, J. (dissenting) — I agree with the ruling of the majority that the State

violated David Pettis’ constitutional right to a fair trial with testimony from witnesses

opining as to or suggesting guilt. I conclude, however, that the breadth of such

inadmissible testimony extends beyond that recognized by the majority. I also would

hold, contrary to the majority, that Pettis’ trial counsel performed ineffectively when

failing to bring a motion in limine or object at trial to the inadmissible evidence. More

importantly, I disagree with the majority that the inadmissible evidence, ineffective

assistance of counsel, and unfair trial constituted harmless error. The State carries a high

burden to prove beyond a reasonable doubt that a constitutional error was harmless and

the State fails to do so. Pettis suffered prejudice from the deep and broad breach of his

constitutional rights to a fair trial and competent counsel and should be granted a new

trial for the charge of first degree murder of his wife. Thus, I dissent while concurring in

part.

This dissenting opinion will list and review the mountain of evidence, particularly

opinion testimony of guilt, that the State should have never presented to the jury. When

doing so, I divide the evidence into groupings based on the witness uttering the judgment

of guilt: Mark Voigtlaender, David William Pettis, and Elizabeth Culp. I analyze why

the evidence breached David Pettis’ right to a fair trial. I also address David Pettis’

assignment of error based on ineffective assistance of counsel. I end by evaluating

No. 38726-7-III

State v. Pettis (dissent)

whether the State shows harmless error beyond a reasonable doubt. I employ the same

names for witnesses used by the majority.

Mark Voigtlaender

Mark Voigtlaender served as the Spokane County Sheriff’s Office’s investigative

analyst for the death of Peggy Pettis. Voigtlaender had 2,500 hours of specialized

training in investigative analysis. According to the State, Voigtlaender possessed

qualifications in cell phone forensics.

Mark Voigtlaender’s tasks for this prosecution included reviewing phone call

records and the content of e-mail, Facebook messages, and cell phone text messages.

Most of the communications moved between David Pettis, Peggy Pettis, and Robin

between November 2017 and August 2018, with the death of Peggy being on June 25,

2018. Voigtlaender analyzed this data in a process labeled an “aggregation.” 2 Report of

Proceedings (RP) (Dec. 6, 2021) at 714-15.

Mark Voigtlaender spread the data from the e-mail and messages collected onto an

Excel spreadsheet. The data consisted of 2,950 PDF pages and 99,000 lines of text.

Based on the data, he prepared a PowerPoint presentation to assist the jury.

David Pettis challenges as inadmissible and violative of his right to a fair trial a

slide entitled “‘Pathway to Premeditation’” shown by Mark Voigtlaender to the jury

during a PowerPoint presentation. Br. of Appellant at 2-3. Pettis also challenges the

following statements of Voigtlaender elicited during the PowerPoint presentation, which

2

No. 38726-7-III

State v. Pettis (dissent)

statements described, labeled, characterized, probed, and impugned the communications

among, Peggy Pettis, Robin, and David Pettis:

1. Certain e-mail are “noteworthy,” 2 RP (Dec. 7, 2021) at 833, 835;

2. Some e-mails constitute “significant item[s] of potential consideration,”

2 RP (Dec. 7, 2021) at 835;

3. E-mail messages are interesting when read together;

4. An e-mail chain shows David Pettis’s progression of thoughts;

5. Pettis had a particular mindset, mental state, or intent;

6. Some of Pettis’s e-mail messages exhibited his being “distraught,” 2 RP (Dec.

7, 2021) at 831, 835, 840-41, 854-55;

7. Pettis was under emotional distress;

8. Pettis engaged in transference of affection;

9. Peggy Pettis communicated with small words and single sentences;

10. Pettis, not Peggy, used the word “fishing,” 2 RP (Dec. 6, 2021) at 736-37;

2 RP (Dec. 7, 2021) 825-26, 862-63;

11. Pettis typed the grammatical incorrect “your” rather than “you’re,” 2 RP

(Dec. 6, 2021) at 737-38;

12. A comment from a wife about sharing her husband was unusual;

13. Pettis admitted to others that he used Peggy’s account to communicate;

14. Pettis used his wife’s e-mail account to make it appear that Peggy

communicated with Robin;

3

No. 38726-7-III

State v. Pettis (dissent)

15. Counterintelligence themes explained the death of Peggy Pettis;

16. His [Voigtlaender’s] forensic review of communications found analytical

proof;

17. David Pettis was an insider threat;

18. David Pettis performed a violent act; and

19. Pettis decided to harm a person he had sworn to uphold or love.

Mark Voigtlaender’s remarkable testimony in his role as linguist, copy editor,

romance guide, psychologist, psychic, priest, counterintelligence officer, prosecutor, and

factfinder extended for 78 transcript pages. His testimony followed a trend of trying

criminal cases on extrapolations by law enforcement officers rather than exclusively on

the facts.

David Pettis’ challenges to the testimony of Mark Voigtlaender arise from these

trial transcript passages:

Q Now, you—last thing on slide you mention transitions in three

separate messages. Talk about why these—what are these transitions and

why are they of note?

A So one thing that’s—that’s interesting that I’ve used in other

investigative arenas, whether it be—particularly, let’s look at counter-

intelligence move: When someone is an insider threat and decides to do

harm to people that they have sworn to uphold or love, and that person then

does something violent, we look at patterns of what changes, if there’s

something in the way they communicate that communicates where their

mindset is, particularly if it’s around a time stamp or time frame where

there’s a lot of emotional upheaval, are there phrases, are there indications

of what that individual is looking at or what they’re doing.

To me these three conversations, that—the phraseology, the timing,

the internet protocol addresses, and the type of conversation that was being

committed at those times—or that was being made on Peggy’s account

4

No. 38726-7-III

State v. Pettis (dissent)

seem to fit a time where there was—particularly with these phrases, the

first message a wife was saying to a potential lover that I’m willing to share

my husband with you. The second message was that when I’m gone, which

is a transition from sharing to saying he’s all yours. And then to the third

one, if something happens. So that progression from those three messages,

that looked to be from Dave, became a significant item of potential

consideration in this trial.

Q Is it unusual for individuals to use those kind of phraseology,

those kinds of transitions?

A I don’t know if it’s unusual or not. It was noteworthy in this

because of what else was happening, so I can’t speak to . . .

Q Okay. When you speak about what else was happening, are you

talking about what else was happening around the time of these messages?

A Correct. Yes. The rest of the—the other messages that—that—

the mental and emotional state that I saw Dave was in as I looked at the

other messages, these became significant, and other activities that he had

done, so, for instance—

[DEFENSE COUNSEL]: Objection, Your Honor. Narrative.

THE COURT: Sustained.

BY [STATE’S ATTORNEY]:

Q Mr. Voigtlaender, what—you said that these became noteworthy

based off of other messages that you had read, and that was other messages

in the same time frame?

A Correct.

Q Okay. Are they messages that we have talked about yesterday

during your testimony?

A No.

Q Okay. So are there particular messages that are of note to you

that are kind of—helped you form this understanding and analysis?

A Yes. There’s other messages and other communications that we

haven’t talked about that make this interesting at this point.

2 RP (Dec. 7, 2021) at 832-34 (emphasis added).

Q Okay. So the fact that there’s this request for life insurance on

behalf of Mrs. Pettis around the same time that she talks—ostensibly her

account talks to [Robin] about if something happens to Mrs. Pettis, that was

noteworthy to you?

A Correct.

2 RP (Dec. 7, 2021) at 835 (emphasis added).

5

No. 38726-7-III

State v. Pettis (dissent)

Q Now, I believe where we left off this morning, we’d spent some

time on the slide going through the messages that you found of note from

March of 2018. I believe there were a few others we hadn't really talked

about yet that I wanted to have you explain why they’re included. It looks

like there’s a couple from March 2nd of 2018. Please explain for the jury

why you included those in that it was something interesting.

A Correct. . . .

2 RP (Dec. 7, 2021) at 847 (emphasis added).

Q . . . I believe, on March 14th there’s a message that you put a

portion of up there regarding an MRI. Can you please expand upon that,

explain why that was interesting?

A Correct. On the 14th of March, Dave has a conversation with

Robin and he talks about a dream that he had when he was in the MRI.

And part of that was, “We swam naked for a couple of hours. Damn MRI

ended.” And that was the conversation that seem significant to point to

what Dave’s state of mind was at the time.

2 RP (Dec. 7, 2021) at 847-48 (emphasis added).

Q And then you also bolded a few phrases towards the bottom of

that message. Why were those phrases of interest?

A So when looking at this, as far as one of the considerations or

one of the points of interest that I was looking at to see if there was some

analytical proof to is: Was there a transference of emotional—of emotion

or affection from one individual to another? Was it dual?

And in this instance, this indicated that there was affection that was

being towards Robin, as opposed to Peggy. And the point of how, “The

thought of losing you is killing me,” is a significant declaration of affection

or love to that individual. In this instance, Robin . . . .

Q So that’s why all three of these phrases were bolded?

A Correct.

Q Okay. And then the next message you have up there is from

March 13th. Why is that message of interest?

A So the—this shows a trend of many things that happened during

the month of March, right, that—that there is a—that there appears to be a

time where—whether it’s a day, whether it’s a couple days, there is no

communication between Dave and Robin. And despite—there’s no

communication. And this was in response to what appeared to be a day or

6

No. 38726-7-III

State v. Pettis (dissent)

two of no communication, that the silent treatment really hurts a lot,

expressing that if he doesn’t have that interaction with her, it hurts him

emotionally is how I took that data.

Q And to you, based on your training and experience, is that

transference of emotional attachment that you mentioned?

A Correct. That transfer of affection is another indication that is

deepening.

Q And then a last message on that slide from March 17th of 2018.

Please explain: Why is that of interest?

A So Dave had multiple different conversations with individuals

and there were some individuals, as we talked about earlier when Elizabeth

and Peggy were talking about the state that Dave was in, that he had gone

crazy, was the quote. This was an indication—another indication by Dave

himself stating what state of mind that he’s in, in this instance, “I’m

fucking wreck.”

....

Q So this message on the 17th of March, from your review of the

data, that flows from and is connected to those other two messages on the

screen there?

A Correct. It shows that there’s—there is emotional distress that is

happening as this transference of emotion is happening, as affection is

happening.

2 RP (Dec. 7, 2021) at 850-52 (emphasis added).

Q Okay. And then can you briefly explain why that message is of

interest?

A So that, again, goes to Dave, how he sees himself mentally, and

that—again, that transference of affection. . . .

2 RP (Dec. 7, 2021) at 853 (emphasis added).

Q Okay. And then next up there you have a message from March

22nd between Ms. Culp and Mrs. Pettis. Is that also indicative of what

you’re talking about earlier, as far as Mr. Pettis’s state of mind?

A Correct. It is.

2 RP (Dec. 7, 2021) at 854 (emphasis added).

7

No. 38726-7-III

State v. Pettis (dissent)

The State insists that Mark Voigtlaender never labeled David Pettis as an inside

threat but a reasonable juror would conclude otherwise. To repeat, Voigtlaender

remarked:

A So one thing that’s—that’s interesting that I’ve used in other

investigative arenas, whether it be—particularly, let’s look at counter-

intelligence move: When someone is an insider threat and decides to do

harm to people that they have sworn to uphold or love, and that person then

does something violent, we look at patterns of what changes, if there’s

something in the way they communicate that communicates where their

mindset is, particularly if it’s around a time stamp or time frame where

there’s a lot of emotional upheaval, are there phrases, are there indications

of what that individual is looking at or what they’re doing.

2 RP (Dec. 7, 2021) at 832 (emphasis added). Voigtlaender commenting about an insider

threat served no purpose except to opine that his review of communications showed

Pettis as a threat to Peggy. He referred to “someone” as an insider threat based on e-mail

he reviewed and David Pettis was a sender and recipient of the messages.

At trial, the State characterized Mark Voigtlaender as a witness called to

summarize and interpret the communications among David Pettis, Peggy Pettis, and

Robin. The State asserted such testimony to be authorized by ER 1006. ER 1006 allows

a party to present the contents of voluminous records “in the form of a chart, summary,

or calculation.” Contrary to the position of the State, the evidence rule does not permit a

witness to interpret the capacious records. Neither the majority nor the State cites any

authority permitting an expert witness to interpret writings.

Expert testimony can be used to explain the meaning of technical terms and words

of art. Kries v. WA-SPOK Primary Care, LLC, 190 Wn. App. 98, 120, 362 P.3d 974

8

No. 38726-7-III

State v. Pettis (dissent)

(2015). Nevertheless, expert opinion on contract interpretation is usually inadmissible.

Kries v. WA-SPOK Primary Care, LLC, 190 Wn. App. 98, 120 (2015). This principle

should apply to interpretation of e-mail communications.

David Pettis, Peggy Pettis, and Robin never used technical language in their very

human communications. The jury could have and should have performed its own

interpretation of the correspondence without the help from an expert.

A prosecutor’s summary witness may help the jury organize and evaluate factually

complex evidence. United States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983). Still

the government’s calling of a witness to summarize voluminous evidence wrongly

suggests that the State calls the witness for some neutral, educational trial purpose.

United States v. Cooper, 949 F.3d 744, 750 (D.C. Cir. 2020). Prosecutors call witnesses,

including summary witnesses, to prove their case – to help convince the jury that the

defendant is guilty as charged. United States v. Cooper, 949 F.3d 744, 750 (D.C. Cir.

2020).

A court must place limits on the sort of “help” a government summary witness

may provide. United States v. Cooper, 949 F.3d 744, 750 (D.C. Cir. 2020). The witness

may not usurp the jury’s fact-finding function by summarizing or describing what is in

the evidence and what inferences should be drawn from that evidence. United States v.

Hampton, 718 F.3d 978, 982-83 (D.C. Cir. 2013). The court must guard against the jury

treating summary testimony as additional evidence or as corroborative of the truth.

United States v. Cooper, 949 F.3d 744, 750 (D.C. Cir. 2020).

9

No. 38726-7-III

State v. Pettis (dissent)

The State could have submitted important e-mail it deemed noteworthy without

any commentary from a law enforcement officer or other witness. If the State deemed

the evidence problematic because of its size, it could have limited the exhibit or exhibits

to the important messages. In the alternative, the State could have introduced all of the

communications as an exhibit and then identified to the jury in closing the e-mail on

which to focus.

During opening and closing arguments, the prosecutor could have shown jurors

the e-mail wherein David Pettis used the word “fishing,” and informed the jury that only

those messages from Peggy’s account, which the State maintained were composed by

Pettis, inserted the word “fishing.” During counsel’s argument, the State could have

mentioned Pettis’ penchant to use the grammatical incorrect “your” rather than “you’re.”

The State during opening and closing could have informed the jury that its position was

that it believed David Pettis used Peggy’s accounts without an ersatz expert claiming

such.

The PowerPoint slide show and the accompanying testimony of Mark

Voigtlaender characterized David Pettis as guilty of murder. “No witness, lay or expert,

may testify to [their] opinion as to the guilt of a defendant, whether by direct statement or

inference.” State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) (citing State v.

Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967)). Such an improper opinion

undermines a jury’s independent determination of the facts and invades the defendant’s

constitutional right to a trial by jury. State v. Kirkman, 159 Wn.2d 918, 927-28, 155 P.3d

10

No. 38726-7-III

State v. Pettis (dissent)

125 (2007); State v. Olmedo, 112 Wn. App. 525, 530-31, 49 P.3d 960 (2002).

Particularly when an opinion is expressed by a government official, such as a law

enforcement officer, the opinion may influence the factfinder and thereby deny the

defendant of a fair and impartial trial. State v. Carlin, 40 Wn. App. 698, 703, 700 P.2d

323 (1985); State v. Haga, 8 Wn. App. 481, 492, 507 P.2d 159 (1973), overruled on other

grounds by City of Seattle v. Heatley, 70 Wn. App. 573, 854 P.2d 658 (1993).

The majority faults the defense for failing to object to Mark Voigtlaender

improperly opining on David Pettis’ guilt because trial counsel only objected on the basis

of speculation and narrative. Because of the manifest constitutional error, I need not

resolve this question. But the objection of “speculation” parallels the objection of

improper opinion testimony. When uttering insupportable opinions, the witness in part

speculates. Voigtlaender was speculating for the jury as to David Pettis’ guilt.

When discerning that only limited portions of Mark Voigtlaender’s testimony

constituted an opinion on guilt, the majority discretely and mistakenly analyzes each

challenged piece of testimony or evidence. This evaluation of the evidence ignores the

combined effect of the ongoing and extensive testimony of Mark Voigtlaender, beginning

with his slide that reads: “Pathway to Premeditation.” Although the majority recognizes

the slide constituted an opinion on David Pettis’ guilt, the majority fails to note that the

State fashioned the remaining testimony of Voigtlaender to support his conclusion of

premeditated murder.

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No. 38726-7-III

State v. Pettis (dissent)

When viewing the evidence as a whole, the process by which a jury views the

evidence, one inevitably discovers that Mark Voigtlaender told the jury that some e-mail

were noteworthy, interesting, or significant items for consideration, that an e-mail chain

shows David Pettis’s progression of thoughts, that Pettis had a particular mindset, mental

state, or intent, that Pettis was distraught and under emotional distress, that Pettis engaged

in transference of affection, that Peggy Pettis communicated with small words and single

sentences, that Pettis, not Peggy, use the word “fishing,” that Pettis typed the

grammatical incorrect “your” rather than “you’re,” that Voigtlaender engaged in a

counterintelligence role that resulted in his discerning analytic proof, that David Pettis

operated as an inside threat, and that Pettis performed a violent act, and that Pettis

decided to harm a person he had sworn to uphold and love. These impermissible

opinions all fit like a glove to the State’s and Voigtlaender’s theme of David Pettis’

passageway to premeditated homicide. Voigtlaender told the jury that certain

communications were noteworthy because the messages pointed to Pettis’ guilt.

Voigtlaender talked about analytical proof because that proof was an attestation of Pettis’

guilt. Voigtlaender averred to a desire to harm a loved one, because that testimony

showed Pettis’ guilt. I could go on and on.

In addition to violating David Pettis’ right to a fair trial, Mark Voigtlaender’s

testimony was inadmissible because the State never qualified Voigtlaender as an expert

witness, Voigtlaender did not testify to opinions based on accepted practices in his many

fields of simulated expertise, and his testimony did not assist the jury in its role as fact

12

No. 38726-7-III

State v. Pettis (dissent)

finder. ER 702 governs the admission of expert testimony. State v. Groth, 163 Wn. App.

548, 561, 261 P.3d 183 (2011). The rule declares:

If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise.

Under ER 702, admissibility depends on whether (1) the witness qualifies as an expert,

(2) the opinion is based upon an explanatory theory generally accepted in the scientific

community, and (3) the expert testimony would be helpful to the trier of fact. State v.

Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004); State v. Groth, 163 Wn. App. 548,

561-62 (2011).

An expert may not testify about information outside their area of expertise. In re

Marriage of Katare, 175 Wn.2d 23, 38-39, 283 P.3d 546 (2012); Queen City Farms, Inc.

v. Central National Insurance Co. of Omaha, 126 Wn.2d 50, 103-04, 882 P.2d 703

(1994). Mark Voigtlaender testified he had 2,500 hours of specialized training in

investigative analysis, but he did not identify the specifics of the training and how the

training qualified him to review communications. Voigtlaender also boasted about

qualifications in cell phone forensics. He never disclosed what it takes to be qualified in

cell phone forensics, what specific training he underwent, the nature of cell phone

forensics, or the special knowledge he gained by that training.

More importantly, the State never qualified Mark Voigtlaender as an expert

witness in any of the variety of subject areas to which he testified: use of the English

13

No. 38726-7-III

State v. Pettis (dissent)

language, counterintelligence moves, psychology, computer usage, and romance. The

State never identified what, if any, experience, Voigtlaender had in order to interpret

voluminous e-mail messages. Voigtlaender never isolated any specialized training in

interpreting or discerning the importance of e-mail communications.

Expert testimony is admissible if the witness’ opinion is based on material

reasonably relied on in their professional community. Reese v. Stroh, 128 Wn.2d 300,

306, 907 P.2d 282 (1995); Deep Water Brewing, LLC v. Fairway Resources. Ltd., 152

Wn. App. 229, 271, 215 P.3d 990 (2009). Mark Voigtlaender never suggested that he

based his opinions on practices or sources accepted in his professional community.

Evidence is admissible under ER 702 if the expert testimony would help the jury.

Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 918, 296 P.3d 860 (2013); State v.

We, 138 Wn. App. 716, 724-25, 158 P.3d 1238 (2007). “Generally, expert evidence is

helpful and appropriate when the testimony concerns matters beyond the common

knowledge of the average layperson, and does not mislead the jury to the prejudice of

the opposing party.” State v. Farr-Lenzini, 93 Wn. App. 453, 461, 970 P.2d 313 (1999).

Thus, opinion testimony explaining complex or arcane medical, psychological or

technical evidence may help the jury. State v. Avendano–Lopez, 79 Wn. App. 706,

710-11, 904 P.2d 324 (1995).

An expert’s testimony cannot cover knowledge possessed by a layperson. The

State never explained why the jury needed assistance in interpreting the correspondence

of Robin, David Pettis, or Peggy Pettis. In American Family Mutual Insurance Co. v.

14

No. 38726-7-III

State v. Pettis (dissent)

Kline, 780 F. Supp. 2d 839 (S.D. Iowa 2011), the court held inadmissible an expert’s

opinion regarding the identity of the person whose voice was heard on a recording and

the mental states of individuals hearing on the recording. The expert did not use any

specialized knowledge or methodology to interpret 911 recording. He based his expert

opinion on his own sensory observations of recording, and jury would be capable of

listening to recording and interpreting it for themselves.

Mark Voigtlaender’s testimony repeatedly violated principles emanating from ER

702. For example, Mark Voigtlaender declared that a comment purportedly from a wife

about sharing her husband was noteworthy. The jury needed no expert to say this. The

jury did not need any witness to inform it that one person can use another’s Facebook

account or e-mail address for messaging, particularly when the usurper lives in the same

home as the account holder and shares computers with the other.

Mark Voigtlaender repeatedly testified to the state of mind of David Pettis. He

claimed that e-mail messages confirmed that Pettis was distraught and emotionally

stressed. Voigtlaender spoke of Pettis transferring his love, protection, and loyalty to

another woman. But a lay jury, relying on common experience and without the aid of an

expert, is capable of deciding a defendant’s state of mind. State v. Farr-Lenzini, 93 Wn.

App. 453, 464 (1999).

In State v. Farr-Lenzini, 93 Wn. App. 453 (1999), this court reversed the

conviction of Lisa Ann Farr-Lenzini for attempting to elude a police officer. A state

trooper testified at trial that Farr-Lenzini intentionally eluded him rather than having

15

No. 38726-7-III

State v. Pettis (dissent)

failed to heed the trooper’s instructions because of a distraction. The State argued that

the trial court properly admitted the trooper’s opinion under ER 704. ER 704 allows for

the admission of an opinion or inference on an ultimate issue that the trier of fact must

decide provided that the opinion or inference is otherwise admissible. The trooper

testified to years of experience as a vehicle instructor trained in accident investigation

and had participated in fifty to eighty arrests for attempting to elude. The court still ruled

that the officer could not testify to Farr-Lenzini’s state of mind.

The majority writes that this dissent raises evidentiary issues not raised by David

Pettis at trial or on appeal. I agree the evidentiary issues were not raised before the

superior court. As a general rule, the accused must object to inadmissible evidence at

trial or waive the right to challenge the evidence on appeal. State v. Torres, 198 Wn.

App. 864, 876, 397 P.3d 900 (2017). But, as recognized by the majority, the accused

may assert, for the first time on appeal, evidentiary error comprising manifest

constitutional error. All of the evidentiary issues surround and attach to the manifest

constitutional error of Mark Voigtlaender’s description of a journey to premeditated

murder. As examined later, the failure to object to the evidence on such grounds

constituted ineffective assistance of counsel, which also may be raised for the first time

on appeal.

I disagree with the majority that this dissent raises evidentiary issues not asserted

by David Pettis on appeal. The dissent follows the assertions by Pettis on appeal as to the

inadmissible evidence and the nature of the evidence.

16

No. 38726-7-III

State v. Pettis (dissent)

David William Pettis

At trial, David William Pettis, the son of Peggy and David Pettis, testified in

response to the State’s questioning:

Q And regarding that conversation [with law enforcement], did you

express to law enforcement your concerns about the death of your mother?

A Yes, I did.

Q What were those concerns?

A That there was something else. I wanted to know the truth of

what happened to Mom.

Q And did you come to develop a belief, based upon the

information you received from law enforcement?

A Yes.

Q And what’s that?

[DEFENSE COUNSEL]: Objection, Your Honor. Speculation.

[STATE’S ATTORNEY]: It’s his belief based on information he’s

been provided.

THE COURT: I’ll allow it under the circumstances.

A I came to believe that my dad had something to do with my—I

came to believe that my dad had something to do with my mother’s death.

1 RP (Dec. 1, 2021) at 337-38 (emphasis added).

The majority concludes that this testimony of David William constituted an

opinion of guilt that violated David Pettis’ right to a fair trial. I agree. No witness may

testify to the guilt of a defendant regardless of the volume of the information on which he

rests the opinion.

Elizabeth Culp

Elizabeth Culp, daughter of David and Peggy Pettis, testified at trial:

Q So in—in August 2018 when you’re being interviewed by law

enforcement and—at that point did you know that there were suspicions

about the death?

A I knew that my mother’s family had suspicions.

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No. 38726-7-III

State v. Pettis (dissent)

Q Just your mother’s family?

A My mother’s family, yes.

Q You actually—you—you made a call in the days after she died

with suspicions, correct?

A My family had given me cause to have curiosities.

Q Just your family?

A My mother’s family, yes.

Q Okay. What about your dad?

A No.

Q So nothing that your dad said—

A My dad was—

Q —to you—

A My dad was grieving. Everybody reacts to grief differently.

Q Do you recall contacting the medical examiner’s office?

A Yes, I do.

Q Okay. Do you recall having a conversation with one of the

persons who returned your call?

A To my recollection, my question to them was, “If a family had

concerns, then what would we do about it?”

Q Do—do you recall saying that you had concerns about the death?

A. I do not recall saying that myself. No.

Q Do you recall saying that your dad had been making statements

since the death such as that he had to crush the hydrocodone and put it in

her ice cream for her to swallow them?

A I may have said that. Yes. I know my dad did that night.

Q So that night, the night that she died, he crushed up her

hydrocodone and put them in her drink for her?

A That’s what I was told, yes.

Q By your dad?

A When I had the conversation with him, yes.

2 RP (Dec. 8, 2021) at 981-82.

Detective Lyle Johnston and medical examiner’s office employee James Uttke

echoed testimony from Elizabeth Culp. Johnston averred:

Q So at this point in time, we’re—were you acting on concerns that

you had based off the information you gathered or. . . .

A Yes. There was—at this particular point in time, I would say that

there wasn’t probable cause to believe that this was definitely an event of

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No. 38726-7-III

State v. Pettis (dissent)

foul play, but it certainly was suspicious. The family members had raised

some issues that made it appear suspicious and so it definitely deserved

further investigation.

2 RP (Dec. 2, 2021) at 588. After speaking to Melissa Mabe, Peggy’s sister, Johnston

sought to interview Pettis. He also reviewed insurance policies insuring Peggy’s life.

James Uttke avowed:

Q Okay. I want to turn your attention to June 28, 2018.

A Okay.

Q Did you make a phone call to an Elizabeth Culp?

A According to the notes, yes.

Q Approximately what time did that happen?

A I entered the note at 2231, so I—it would have probably been the

same day.

Q Okay. And in the course of that call—or, I guess, did Ms. Culp

have concerns? Without talking about what she said.

A Can I read the full note before answering?

Q You can read it to yourself to refresh your memory.

A Yes. Yes, she did have concerns.

Q And did you give her any advice upon hearing her concerns?

A The only advice I would have given her is to file a police report

with her concerns, but I did document her concerns.

2 RP (Dec. 7, 2021) at 931-32.

The majority rests its ruling rejecting David Pettis’ challenge to testimony of

Elizabeth Culp’s suspicions on the rule that the opinion of guilt must be “‘explicit or

almost explicit’” to be inadmissible. State v. King, 167 Wn.2d 324, 332, 219 P.3d 642

(2009) (quoting State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007)). A

reasonable juror will deem a family member’s suspicion that one member killed another

member of the family to be close to an opinion of guilt. Also, we should juxtapose with

the majority’s sympathetic principle with the rule that an opinion of guilt expressed

19

No. 38726-7-III

State v. Pettis (dissent)

through inference is equally improper and equally inadmissible because it invades the

province of the jury. State v. Haga, 8 Wn. App. 481, 492 (1973).

To determine whether statements are impermissible opinion testimony, a court

will consider the circumstances of a case, including, “‘(1) the type of witness involved,

(2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of

defense, and (5) the other evidence before the trier of fact.’” State v. King, 167 Wn.2d

324, 332-33 (2009) (internal quotation marks omitted) (quoting State v. Kirkman, 159

Wn.2d 918, 928, 155 P.3d 125 (2007). During David Pettis’ trial, the suspicions of

family members entered through testimony of not only a family member but a law

enforcement officer. The suspicions of a family member of guilt may be even more

persuasive than the suspicions of a law enforcement officer. A daughter will not wish to

wrongly implicate her father of murder. The nature of the charges was as serious as it

comes.

The testimony of Elizabeth Culp and the law enforcement officer about the

suspicions of Culp and other family members was also inadmissible because of its

irrelevance. The State does not explain any relevance behind the testimony other than it

prompted one officer to research life insurance. That officer could have simply testified

that he reviewed the insurance policies on the life of Peggy Pettis. The reason for

reviewing the policies did not help the jury in determining the guilt or innocence of

David Pettis. Elizabeth Culp and family member’s suspicions did not render it more

likely that David Pettis murdered his wife.

20

No. 38726-7-III

State v. Pettis (dissent)

The State contends that some of the challenged testimony explained what actions

law enforcement took during its investigation of the death of Peggy Pettis. Nevertheless,

the State fails to explain the relevance of any of the steps taken by law enforcement in its

investigation. David Pettis’ prosecution concerned only whether Pettis intentionally

killed Peggy. The details, extent, and competency of the Spokane County Sheriff’s

Department’s investigation did not render the guilt or innocence of Pettis more likely.

The State could introduce statements uttered by David Pettis to law enforcement officers

only because the statements could be an admission against interest, not because the

statements were part of an investigation.

Generally, law enforcement’s investigation lacks relevance to guilt or innocence

of the accused. State v. Edwards, 131 Wn. App. 611, 614-15, 128 P.3d 621 (2006); State

v. Johnson, 61 Wn. App. 539, 546-48, 811 P.2d 687 (1991); State v. Aaron, 57 Wn. App.

277, 279-81, 787 P.2d 949 (1990). Testimony as to what prompted police action is not

necessarily relevant in a criminal prosecution. State v. Lowrie, 14 Wn. App. 408, 411-13,

542 P.2d 128 (1975).

In State v. Edwards, 131 Wn. App. 611, 614-15 (2006), a detective testified that

he initiated his investigation of the defendant based on the statements of a confidential

informant. In response to a hearsay objection, the State argued the testimony was not

offered to prove the truth of the confidential informant’s statement to the detective, but

only to explain why the detective began to investigate that particular person. This court

ruled the statement hearsay inadmissible because it was relevant only if offered for its

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No. 38726-7-III

State v. Pettis (dissent)

truth, since the detective’s motive for starting his investigation was not an issue in

controversy.

In State v. Rocha, 21 Wn. App. 2d 26, 31-33, 504 P.3d 233 (2022), this court

reversed a conviction because of a law enforcement officer’s testimony that officers

responded to a report of domestic dispute between defendant and his father. The reason

why the officers went to the scene was of no consequence at trial.

Ineffective Assistance of Counsel

In the alternative to the argument that the State violated his right to a fair trial by

inadmissible opinion testimony as to guilt, David Pettis contends his trial counsel

performed ineffectively by failing to seek to exclude much of the inadmissible testimony.

I agree. Pettis’ trial counsel objectively performed unreasonably when failing to object to

the mound of bad evidence that the State submitted.

The constitution guarantees effective assistance of counsel in order to ensure that

a defendant receives due process because counsel helps ensure that the defendant presents

a defense that furthers a fundamentally fair trial. State v. Crow, 8 Wn. App. 2d 480,

506-07, 438 P.3d 541 (2019). The Sixth Amendment to the United States Constitution

and article I, section 22, of the Washington Constitution guarantee the right to assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). State decisions

follow the teachings and rules announced in the United States Supreme Court’s seminal

decision of Strickland v. Washington, 466 U.S. 668 (1984). An accused is entitled to

22

No. 38726-7-III

State v. Pettis (dissent)

more than a lawyer who sits next to him in court proceedings. In order to effectuate the

purpose behind the constitutional protection, the accused is entitled to effective assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984).

A claim of ineffective assistance of counsel requires a showing that (1) counsel’s

performance was deficient and (2) the deficient performance prejudiced the defendant.

Strickland v. Washington, 466 U.S. 668, 687 (1984). If one prong of the test fails, we

need not address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d

563 (1996). I address the prejudice prong when discussing harmless error.

For the deficiency prong of ineffective assistance of counsel, this court gives great

deference to trial counsel’s performance and begins the analysis with a strong

presumption that counsel was effective. State v. West, 185 Wn. App. 625, 638, 344 P.3d

1233 (2015). Deficient performance is performance that fell below an objective standard

of reasonableness based on consideration of all the circumstances. State v. McFarland,

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The appellant bears the burden to prove

ineffective assistance of counsel. State v. McFarland, 127 Wn.2d 322, 335 (1995).

Courts cannot exhaustively define the obligations of counsel or form a checklist

for judicial evaluation of attorney performance. Strickland v. Washington, 466 U.S. 668

(1984). Nevertheless, effective representation entails certain basic duties, such as the

overarching duty to advocate the defendant’s cause and the more particular duty to assert

such skill and knowledge as will render the trial a reliable adversarial testing process.

23

No. 38726-7-III

State v. Pettis (dissent)

Strickland v. Washington, 466 U.S. 668, 688-89 (1984); In re Personal Restraint of Yung-

Cheng Tsai, 183 Wn.2d 91, 99-100, 351 P.3d 138 (2015).

The State forwards the familiar mantra that a failure to object to the admission of

evidence constituted a tactical decision of trial counsel and is not subject to questioning

on appeal under the rubric of ineffective assistance of counsel. The defendant must show

in the record the absence of a legitimate strategic or tactical reason supporting the

challenged conduct or omission by counsel. State v. McFarland, 127 Wn.2d 322, 336

(1995). Imposing the burden on the defendant invents problems since the imposition

requires the defendant to prove a negative. Presumably the defendant must fashion straw

men or women and then dissemble them. In practice, the State typically posits one or

more reasons for a tactical decision. The Washington Supreme Court nonetheless

remains firm that no presumption of ineffective representation exists. State v.

McFarland, 127 Wn.2d 322, 336 (1995). Thus, in the end, the defendant holds the

burden of showing a lack of a legitimate strategy.

Decisions on whether and when to object to trial testimony are classic examples of

trial tactics. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). “Only in

egregious circumstances, on testimony central to the State’s case, will the failure to

object constitute incompetence of counsel justifying reversal.” State v. Johnston, 143

Wn. App. 1, 19, 177 P.3d 1127 (2007). Counsel engages in a legitimate trial tactic when

forgoing an objection in circumstances when counsel wishes to avoid highlighting certain

evidence. In re Personal Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004).

24

No. 38726-7-III

State v. Pettis (dissent)

This latter rule makes no sense in light of the standard jury instructions that the jury must

not consider evidence ruled inadmissible and not hold objections to evidence by counsel

against a party. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 1.02, at 20 (4th ed. 2016). In contexts favorable to the State,

but not favorable to the accused, courts apply a presumption that the jury follows the

court’s instruction. State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 (2001).

When a defendant bases their ineffective assistance of counsel claim on trial

counsel’s failure to object, the defendant must show that the objection would likely have

succeeded. State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007). I have already

shown that the trial court should have sustained an objection to the much of Mark

Voigtlaender’s testimony.

This court routinely affirms criminal convictions against a claim of ineffective

assistance of counsel on the basis that the claimed ineffective assistance involved trial

strategy. Nevertheless, an argument that trial strategy informed trial counsel’s

performance does not end our inquiry. Not all defense counsel’s strategies or tactics are

immune from attack. In re Personal Restraint of Caldellis, 187 Wn.2d 127, 141, 385

P.3d 135 (2016). A criminal defendant can rebut the presumption of reasonable

performance by demonstrating that no conceivable legitimate tactic explains counsel’s

performance. In re Personal Restraint of Caldellis, 187 Wn.2d 127, 141 (2016); State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Counsel performs deficiently by

failing to object to inadmissible evidence absent a valid strategic reason. State v.

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No. 38726-7-III

State v. Pettis (dissent)

Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). The relevant question is not

whether counsel’s choices were strategic, but whether they were reasonable. Roe v.

Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000); State v.

Grier, 171 Wn.2d 17, 34 (2011).

No reasonable trial strategy explains trial defense counsel’s failure to object to the

testimony of Mark Voigtlaender. Voigtlaender was not a qualified expert. He repeatedly

proffered opinions in areas in which he lacked expertise and on which no opinion can

testify. The argument that counsel did not wish to highlight the evidence by objecting

before the jury holds no rain. Counsel could have and should have brought a motion

before trial to exclude all opinion testimony, particularly the testimony given by

Voigtlaender.

Counsel also performed ineffectively by failing to preclude the opinion testimony

of Elizabeth Culp and David William Pettis. A motion in limine to preclude any opinion

testimony would have also prevented the introduction of the evidence without the need to

object before the jury.

Harmless Error

At some point, the introduction of inordinate inadmissible and unfair evidence by

the State should lead to a reversal no matter the weakness of the defense or no matter if

the State might show harmless error. This appeal may be one such prosecution. But I

need not rely on such a proposed remedy.

26

No. 38726-7-III

State v. Pettis (dissent)

Although we disagree to its extent, the majority and I concur that constitutional

error occurred. Appellate review presumes constitutional error to be prejudicial, and the

State bears the burden of proving the error harmless. State v. Stephens, 93 Wn.2d 186,

190-91, 607 P.2d 304 (1980). We place a heavy burden on the State to show harmless

error in order to (1) discourage conduct that undermines justice and (2) deter conduct

repugnant to the concept of an impartial trial. State v. Charlton, 2 Wn.3d 421, 429, 538

P.3d 1289 (2023); State v. Monday, 171 Wn.2d 667, 680, 257 P.3d 551 (2011).

Washington courts reference two standards for adjudging constitutional harmless

error. First, we must reverse unless we are persuaded, beyond a reasonable doubt, that

the error did not affect the verdict. State v. Charlton, 2 Wn.3d 421, 428-29 (2023). This

standard is called the “‘contribution test.’” State v. Johnson, 100 Wn.2d 607, 621, 674

P.2d 145 (1983), overruled on other grounds in State v. Bergeron, 105 Wn.2d 1, 4, 711

P.2d 1000 (1985). Some decisions restate this first test as requiring the State to establish

beyond a reasonable doubt that “any reasonable jury” would have still reached the same

result absent the error. State v. Quaale, 182 Wn.2d 191, 201-02, 340 P.3d 213 (2014).

An “any reasonable jury test” should be difficult to surmount because of the variances in

views of reasonable people who sit as jurors.

In addition to declaring that the reviewing court must vacate a conviction unless it

concludes beyond a reasonable doubt that the constitutional error did not influence the

outcome of the trial, Washington courts employ an “‘overwhelming evidence test.’”

State v. Johnson, 100 Wn.2d 607, 621 (1983). Under the overwhelming evidence test,

27

No. 38726-7-III

State v. Pettis (dissent)

constitutional error is harmless if the court adjudges beyond a reasonable doubt that the

untainted evidence necessarily leads to a finding of guilt. State v. Johnson, 100 Wn.2d

607, 621 (1983).

In at least one decision, the Washington Supreme Court has determined the

overwhelming evidence test to be the preferred test. State v. Guloy, 104 Wn.2d 412,

425-26, 705 P.2d 1182 (1985). The Supreme Court still references the contribution test,

however. State v. Heng, 2 Wn.3d 384, 395, 539 P.3d 13 (2023). No decision analyzes

constitutional error both standards or suggests that the circumstances of the case or the

nature of the error leads to a different result depending on which standard the court

applies.

“Harmless error review requires close scrutiny of all the evidence.” State v.

Romero-Ochoa, 193 Wn.2d 341, 349, 440 P.3d 994 (2019). The court considers the

totality of the evidence. State v. Romero-Ochoa, 193 Wn.2d 341, 349 (2019); Thomas v.

French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983).

The harmless error analysis is fundamentally different from the sufficiency of

evidence test. Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed.

1557 (1946). The harmless error inquiry does not ask whether enough evidence

supported the result, apart from the phase affected by the error. Kotteakos v. United

States, 328 U.S. 750, 765 (1946). The court instead asks whether the error had

substantial influence. Kotteakos v. United States, 328 U.S. 750, 765 (1946). If so, or if

28

No. 38726-7-III

State v. Pettis (dissent)

one is left in grave doubt, the conviction cannot stand. Kotteakos v. United States, 328

U.S. 750, 765 (1946).

Assessing evidence to be overwhelming and discerning beyond a reasonable doubt

whether inadmissible evidence contributed to a verdict is a difficult and imprecise task in

many, but not all, cases and poses struggles in David Pettis’ appeal. Appellate judges

frequently apply constitutional harmless error analysis and give little thought to the

meaning of “overwhelming evidence.” We have no measuring stick to distinguish

between overwhelming evidence and nonoverwhelming evidence. We do not even have

a name for nonoverwhelming evidence. The United States Supreme Court and the

Washington Supreme Court have announced few guidelines for a reviewing court to

employ when assessing what constitutes overwhelming evidence, on the one hand, or

evidence that could impact a verdict, on the other hand.

Constitutional harmless error creates anomalies in difficult circumstances such as

created by David Pettis’ appeal. When assessing the impact of error, a reviewing court

plays a role as an enriched jury, rather than a panel of judges discerning and applying the

law. Principles of review suggests that we insert ourselves into the skin of a layperson

juror with no experience in adjudicating guilt or innocence and with no familiarity with

the judicial system. But judges think differently from jurors. For instance, we maintain

our status as veteran adjudicators with differing degrees of cynicism about the testimony

of witnesses and stories forwarded by an accused.

29

No. 38726-7-III

State v. Pettis (dissent)

The overwhelming evidence test fails to recognize the conundrum of a jury’s

difficulty in reaching a decision as to whether the State’s evidence supports a conviction

beyond a reasonable doubt. The contribution test ignores the process of twelve ordinary

persons, all with unique insight, discussing the evidence in minute detail before reaching

a verdict. Both tests disregard the phenomenon that overwhelming evidence to one juror

could comprise negligible evidence to another juror. For purposes of David Pettis’

appeal, the State may have presented overwhelming evidence at trial, but one juror still

convicted Pettis only because of opinions of guilt uttered by Pettis family members and

law enforcement officers.

I now evaluate the State’s evidence presented against David Pettis. In doing so, I

must remember that David Pettis need not have established an innocent explanation for

the cause of Peggy’s death in order to successfully defend the prosecution. Pettis had no

burden of showing the method of Peggy’s death. The State carried the burden to show

that, with premeditation, Pettis intended to kill his wife and successfully did so.

The majority writes that the only issue at trial was whether David Pettis ground up

the hydrocodone and placed it in Peggy’s drink. Not true. Even if David Pettis did so, he

may not have done so to kill Peggy. Pettis grinding up one or more hydrocodone for

Peggy does not equate to intending her death.

In analyzing harmless error in the context of unblemished evidence, I must view

all inadmissible testimony spoken by Mark Voigtlaender, Elizabeth Culp, and David

William Pettis as constitutionality tainted under both the right to a fair trial and the right

30

No. 38726-7-III

State v. Pettis (dissent)

to assistance of counsel. The testimony of Culp as to suspicions and David William as to

his father’s participation expressed an opinion of guilt. The State tied the challenged

testimony from Voigtlaender to his theme of “Pathway To Premeditation” and to his

opinion of guilt. Counsel’s failure to object to all of this testimony formed ineffective

assistance of counsel.

The State downplays the slide introducing the theme of “Pathway To

Premeditation” because Mark Voigtlaender and the State’s attorney never uttered the

phrase “pathway to premeditation.” This belittling of the evidence fails to recognize the

assessment of communication experts that jurors remember slides in a PowerPoint

presentation before remembering spoken words. Humans are visually orientated, so

visual representations reinforce key points, and the listener more easily retains the

information. The depreciating of the slide by the State also ignores the fact that

Voigtlaender’s testimony was not merely designed to summarize extensive documents

but to advocate that the communications of David Pettis, Peggy, and Robin proved the

theme of a pathway to premeditated murder. The inopportune opinion testimony

wrapped itself around the slide. If the slide was unimportant, as suggested by the State,

the State would have never shown it to the jury.

The State also pooh-poohs David William’s testimony that he came to believe his

father participated in his mother’s death by characterizing the testimony as fleeting. This

downplay disregards the added opinion of Mark Voigtlaender and Elizabeth Culp’s

testimony that she and other family members possessed suspicions. This deprecation of

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No. 38726-7-III

State v. Pettis (dissent)

the testimony also fails to note the strong impact of an accused’s family member telling a

jury that he considers his father guilty of first degree murder. This court, in State v.

Johnson, 152 Wn. App. 924, 219 P.3d 958 (2009), and State v. Lahti, 23 Wn. App. 648,

597 P.2d 937 (1979), recognized the irrelevance and overwhelmingly prejudicial nature

of a family member’s suspicions that the accused committed a horrendous crime.

I continue with an assay of whether the State presented overwhelming evidence of

guilt. The State used to its advantage David Pettis’ untoward extramarital, partly

physical, but principally idealistic and imaginary, affair with Robin. The evidence

painted Pettis as an immoral, conniving husband wanting to end his wife’s life to carry

on a relationship with his childhood sweetheart. When emphasizing this evidence, the

State ignores David Pettis’ testimony, Elizabeth Culp’s testimony, and even Robin’s

testimony that Peggy knew of the relationship and registered approval to Robin. Peggy

told Elizabeth Culp, her daughter, that she was thankful that Robin could care for her

father if she died. Although such approval by a wife is atypical, this reviewing court

should not reject this fact. Human beings do strange things and think odd thoughts.

Assuming Peggy was upset with the relationship David Pettis sought to nurse with

Robin, Peggy could have committed suicide as a result of unhappiness and abandonment

rather than Pettis poisoning her. Peggy’s sister, Melissa Mabe, testified that she saw

Peggy the morning of her death and Peggy “seemed off . . . she was just off.” 1 RP

(Dec. 1, 2022) at 294. Housemate Nancy Porter testified that Peggy developed a somber

mood in the days preceding her death. This testimony confirms the possibility of suicide

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even though witnesses testified that Peggy was not the type to commit suicide. After

most suicides, one or more persons typically comment that the decedent was not the type

to commit suicide. Even David Pettis, to his own disadvantage, stated Peggy would not

commit suicide.

The State highlights the purchase of life insurance on Peggy’s life immediately

before her death and emphasizes a motive to kill Peggy for the insurance proceeds. This

underscoring of evidence discounts other evidence that Peggy was integrally involved in

the purchase of the insurance and that she, in addition to Pettis, hurried the process.

According to Krystn Meier, the Pettises’ life insurance agent, Peggy was proactive in

procuring a policy by going to the doctor’s office and getting additional documentation.

Also, according to Meier, the couple sought insurance on David’s life. With the counsel

of Meier, the two decided not to apply for a policy on David Pettis’ life because of his

medical condition. He might have been able to purchase life insurance but only at an

excessive rate.

In its review of the evidence, the State emphasizes financial difficulties

encountered by David and Peggy Pettis. The State forgets that the Pettises had a

comfortable income that allowed them to be generous to many people.

The State highlights that David Pettis never awakened Nancy and William Porter

when he found Peggy collapsed on the floor. Sound reasons other than murder explain

the lack of immediate notice to the Porters. For example, Pettis may not have wished the

Porters to interfere in the care of Peggy by emergency medical providers. Pettis was

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distraught and may have been in a hurry to get professional help and did not think about

the Porters.

The State stresses changes in stories told by David Pettis surrounding the demise

of Peggy. I agree that Pettis told different stories to different people, but sometimes a

person does so innocently, particularly during the stress of a death of a loved one and

because of remembering events differently as time passes. Pettis could have changed the

story, not because of guilt, but in attempt to convince others of his innocence.

According to the majority, the State’s analyst opined that some messages sent

from Peggy’s account to Robin were written by Pettis. This testimony was speculation.

We do not know for sure who authored the messages sent from Peggy’s accounts.

No percipient testimony addressed authorship.

Many facts suggest that David Pettis did not kill his wife. David William Pettis

testified that his mother and father were committed to remaining together. Elizabeth

Culp echoed her brother’s testimony when declaring her parents wanted to maintain a

strong relationship. According to Culp, her mother maintained a friendship with Robin.

Nancy Porter, who lived in the same house as the Pettises, never saw or heard David

mistreat Peggy.

Evidence established that Peggy suffered chronic pain and frequently used

hydrocodone for the pain. Peggy had accumulated a stash of hydrocodone on her own.

Nancy Porter testified that, when retiring to bed, Peggy took hydrocodone if her leg hurt.

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Other witnesses testified to Peggy grinding up her pills and placing the powder in ice

cream.

Regardless of no dementia, Peggy could have forgotten she had earlier taken some

hydrocodone and took more such that a lethal dose accumulated in her stream. John

Howard, the forensic pathologist and medical examiner, testified that Peggy could have

taken the hydrocodone on her own volition.

The toxicologist found trazodone, a sleep aid, and cyclobenzaprine, a muscle

relaxant, in the bloodstream of Peggy Pettis. A physician prescribed the medications for

David, not Peggy. Nevertheless, Peggy could have garnered access to the pills. We have

no evidence that David Pettis was sophisticated enough to believe a combination of the

pills would cause death.

When law enforcement asked Pettis about searches on his computer for the effects

of hydrocodone, Pettis indicated that Peggy entered the search. We do not know

otherwise.

The medical examiner confirmed David Pettis’ story that Peggy aspirated,

although the examiner testified that aspiration is typical at the time of death and was not

the cause of Peggy’s death. The examiner could not opine as to how many hydrocodone

pills Peggy took or whether she unknowing or knowingly took the pills.

The State’s and the majority’s evaluation of evidence disregards strong testimony

of the couple’s daughter, Elizabeth Culp, who considered her mother her best friend and

who testified favorably for her father. Culp, who lived with her parents several years

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No. 38726-7-III

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earlier, testified to her mother maintaining a large stash of hydrocodone. Her mother

took hydrocodone for pain although she did not know the full extent of the mother’s use

of drugs because of the mother’s desire for privacy. According to Culp, Peggy ground

the pills in a grinder and placed the powder in food or drink because of a difficulty in

swallowing pills. According to Culp, her parents hurried to procure insurance on Peggy’s

life before she turned 64 and one-half years of age. Peggy occasionally choked on water.

The State emphasizes that Elizabeth Culp, when testifying, possessed the motive

of exaggerating in order to save her only remaining parent from prison. But when this

court applies the constitutional harmlessness beyond a reasonable doubt standard, this

court should not weigh the evidence. The jury could have believed all of the testimony

of Culp, but for the inadmissible and harmful testimony.

This court should also assume that, without the unconstitutional evidence, the jury

would have believed the testimony of David Pettis presented through the playing of his

interview by law enforcement. Pettis testified that Peggy ground the hydrocodone, and

he did not kill his wife.

A reviewing court should not weigh the credibility of witnesses when analyzing

harmless error. State v. Jackson, 252 Or. App. 74, 82, 284 P.3d 1266 (2012); Lumpkin v.

State, 245 Ga. App. 627, 629, 538 S.E.2d 514 (2000); Pearson v. State, 216 Ga. App.

333, 334, 454 S.E.2d 205 (1995). I would impose two exceptions to the rule when the

testimony of a witness is entirely implausible rather than believable and when cross-

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No. 38726-7-III

State v. Pettis (dissent)

examination of the defendant destroys his credibility. But the testimony of both

Elizabeth Culp and David Pettis bore earmarks of plausibility.

Spokane County Sheriff’s Office’s employee Mark Voigtlaender bespoke most

of the inadmissible evidence in David Pettis’ trial. In City of Seattle v. Levesque, 12 Wn.

App. 2d 687, 710-11, 460 P.3d 205 (2020) and in State v. Demery, 144 Wn.2d 753,

761-62, 30 P.3d 1278 (2001) (plurality opinion), this court and the state Supreme Court

respectively emphasized that an officer’s testimony offered during trial, like a

prosecutor’s statements uttered during summation, carries an aura of special reliability

and trustworthiness. The officer’s testimony will profoundly influence a jury. For this

reason, among other reasons, this court in Levesque held the officer’s inadmissible

testimony was not harmless error.

Other Washington decisions support my conclusion that the State did not show

harmless error beyond a reasonable doubt in part because of the undue influence of a law

enforcement officer’s opinion of guilt. In State v. Farr-Lenzini, 93 Wn. App. 453 (1999),

this court adjudged the state trooper’s testimony as to the accused’s state of mind harmful

under either the overwhelming evidence or contribution test. This court noted that the

trooper’s testimony addressed the critical core issue. The testimony also implicated the

accused’s credibility. We also recognized that testimony of a law enforcement officer as

to an accused’s guilt particularly influences the jury.

In State v. Barr, 123 Wn. App. 373, 98 P.3d 518 (2004), a law enforcement officer

testified that defendant Derrick Barr lied when denying allegations against him. This

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court reversed the conviction, while recognizing the influence of a government official on

a jury. In City of Vancouver v. Kaufman, 10 Wn. App. 2d 747, 450 P.3d 196 (2019), this

court reversed a conviction for the same reason.

David Pettis’ trial suffered from numerous critical errors. The cumulative error

doctrine applies where a combination of trial errors denies the accused of a fair trial, even

when any one of the errors, taken individually, would be harmless. In re Personal

Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other

grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). When, under the

totality of the circumstances, it is shown that the accumulation of errors substantially

prejudiced the defendant and denied him a fair trial, reversal is required. In re Personal

Restraint of Cross, 180 Wn.2d 664, 690 (2014). Under the cumulative error doctrine, an

accumulation of irregularities, each of which might be harmless in itself, may in the

aggregate reveal the absence of a fair trial in contravention of the defendant’s right to due

process. State v. Samuel, 165 Idaho 746, 778, 452 P.3d 768 (2019).

A court should be reluctant, rather than quick or even casual, when declaring

harmless error in favor of the State. Our American judicial system suffers from many

wrongful convictions. When a court applies harmless error, we reward the State’s breach

of valued constitutional rights of the accused. We encourage the State to continue to

present irrelevant, speculative, and unduly prejudicial evidence in order to convict. We

also endorse the directions from some prosecuting attorney office superiors to State trial

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attorneys “to get into evidence whatever you can get in and let the appellate lawyer worry

about affirming the verdict.”

At a bench trial, I might have convicted David Pettis of murder based on the

untainted evidence. But I cannot be certain. The State’s case is circumstantial.

Significant evidence mitigates against the guilt of Pettis. Because the State must prove

harmless error beyond a reasonable doubt, I must give Pettis the benefit of the doubt.

I conclude some reasonable juries, although not necessarily all juries, would acquit Pettis.

I am not persuaded beyond a reasonable doubt that the constitutional error did not impact

the verdict.

Fearing, J.

39