filed. as corrected.: July 14, 1994.
Appeal from SUPERIOR COURT STEVENS COUNTY. Superior Court No: 88-1-00014-4. Date filed in Superior Court: March 31, 1989. Superior Court Judge signing: LARRY KRISTIANSON
Schultheis, Thompson, Munson
SCHULTHEIS, J.-- Curtis Scott Buckner was convicted of first degree felony murder and given an exceptional sentence of 960 months. Mr. Buckner contends: (1) DNA comparison evidence is not sufficiently reliable to be admissible; (2) the trial court erred in admitting rebuttal evidence; (3) the prosecution failed to preserve test samples; (4) a change of venue should have been granted; and (5) the exceptional sentence is unwarranted. We affirm on the first four grounds but remand for resentencing.
On January 10, 1988, Cynthia Ferguson's vehicle was found abandoned on a logging road and reported by passing snowmobilers as possibly stolen. Police found blood in and around the vehicle and a search of the area revealed Ms. Ferguson's snow-covered body nearby. She had been stabbed 15 times at another location and transported to where her body was found. Naked except for socks, she appeared to have been raped. A blood sample was taken as were semen swabs. Suspicion fell on Mr. Buckner. He was seen in the area the day of the incident and was known to own a knife similar to the murder weapon found at the scene. Police obtained a warrant for a blood sample. Samples from Mr. Buckner and the victim were sent to the state crime laboratory for analysis. Results proved inconclusive and samples were sent to a private laboratory for DNA typing. Mr. Buckner secured leave to test using his own expert. The results were not helpful to the defense. Mr. Buckner selected another laboratory, but there were insufficient sample materials left to obtain a result.
The jury convicted. At sentencing, the court departed from the standard range of 291 to 388 months and imposed an exceptional sentence of 960 months.
Now that our Supreme Court has addressed the reliability of DNA typing, Mr. Buckner's challenge is no longer viable. State v. Cauthron, 120 Wash. 2d 879, 846 P.2d 502 (1993). The methodology employed here is the same as that addressed in Cauthron. Dr. Michael Baird of Lifecodes Corporation stated the odds of the semen taken from the victim coming from anyone other than Mr. Buckner were 1 in 19 billion. Dr. Mary Clair King, another prosecution expert, thought this estimate conservative. Since there are not 19 billion persons living today, this is another way of saying the match was absolute--a practice arguably condemned by Cauthron. 120 Wash. 2d at 906. Dr. King went further and stated "In my view, there's absolutely no doubt those two samples came from the same human being. Prior to delivering this opinion, she gave the jury an overview of population genetics theory and described the process whereby weight is assigned to test results and how the weights are factored to arrive at a statistical conclusion.
If Cauthron were read as authority for the premise that a DNA expert cannot testify to conclusivity, the rule was violated. If read as authority that an opinion without statistical support is not helpful to the trier of fact, no violation occurred. See 120 Wash. 2d at 906-07. We adopt the latter view.
Mr. Buckner also raises evidentiary questions relative to DNA. The trial court excluded consideration of alleged testing errors at the Frye hearing.*fn1 Although Cauthron left the door open for a determination of testing errors as a matter of law, the question is generally for the trier of fact. 120 Wash. 2d at 898-99; see also State v. Kalakosky, 121 Wash. 2d 525, 543, 852 P.2d 1064 (1993).
Mr. Buckner urges that certain exhibits introduced in rebuttal were significantly different from the materials presented during the State's case in chief because they involved rehybridized test gels for which no foundation was laid during the Frye hearing.*fn2 He also urges no statistical evidence was introduced explaining the significance of the exhibits. He argues this material was cumulative and not designed to rebut anything produced by the defense.
Dr. Baird analyzed seven autoradiograms (autorads) of four test probes, each of which he concluded established a match. Dr. Randall Libby, a defense expert, was critical of Lifecodes' protocols and opined that two of the four asserted matches did not match. Casting out the nonmatches, the odds of anyone else exhibiting the same DNA pattern would fall from Dr. Baird's estimate of 1 in 19 billion to 1 in 325,312. In rebuttal, the State sought to introduce additional autorads of rehybridized test gels and Mr. Buckner objected on the basis that no foundation had been laid establishing this process was generally accepted by the scientific community. The objection was sustained in part and overruled in part. Dr. Baird testified the results were consistent with his earlier testimony. He stated the rebuttal evidence could not be used to determine a match. The rehybridization process was employed only to confirm the accuracy of Lifecodes' earlier work.
A trial court's decision to admit or reject rebuttal evidence will be disturbed only upon a showing of manifest abuse of discretion. State v. Swan, 114 Wash. 2d 613, 652-53, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 112 L. Ed. 2d 772, 111 S. Ct. 752 (1991). In response to counsel's objection, the trial judge declined to accept some evidence, holding it did not meet Frye standards as determined in the prior hearing, and accepted the evidence to which Mr. Buckner objects. Manifest abuse of discretion does not appear on the record cited. The evidence was cumulative to some extent, but Dr. Baird's testimony was offered to rebut Dr. Libby's suggestions of error and is thus relevant.
Mr. Buckner contends the State should have recognized that with the admissibility of DNA evidence unsettled, and the science of forensic typing still in an embryonic stage, multiple testing procedures might be indicated. Accordingly, a greater quantity of sample should have been preserved. Mr. Buckner relies on State v. Wright, 87 Wash. 2d 783, 557 P.2d 1 (1976) for the premise that when evidence is lost or destroyed, the focus is on materiality. To the extent the decision interprets federal constitutional principles, Wright is no longer good law. State v. Straka, 116 Wash. 2d 859, 882-83, 810 P.2d 888 (1991). Nor, when this matter was argued, did our state constitution compel a different result. State v. Ortiz, 119 Wash. 2d 294, 301-05, 831 P.2d 1060 (1992) (plurality) (adopting Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988)). Postargument, however, a decision issued which indicates the law is unsettled. State v. Hanna, 123 Wash. 2d 704, 871 P.2d 135 (1994). Hanna, at 713-14, adopted no test, but strongly suggests that Ortiz is displaced:
The law governing destruction of evidence cases is not settled in Washington. See State v. Ortiz, 119 Wash. 2d 294, 831 P.2d 1060 (1992). This court is split as to whether the standard set forth in Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), or that enunciated in State v. Vaster, 99 Wash. 2d 44, 659 P.2d 528 (1983), is controlling.
In Youngblood, the Supreme Court held "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Youngblood, 488 U.S. at 58. In Vaster, we articulated a 2-part balancing test. "[A] court should first consider whether there exists a reasonable possibility that the missing evidence would have affected the defendant's ability to present a defense." Vaster, 99 Wash. 2d at 52. The defendant bears the burden of establishing that reasonable possibility. Vaster, 99 Wash. 2d at 52. Then, "the ...