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State v. Avery

September 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
STACIE R. AVERY, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-01106-0. Date filed: 10/09/95. Judge signing: Hon. Mary W. Brucker.

Petition for Review Denied June 3, 1997,

PER CURIAM. -- Stacie Avery appeals his convictions for first degree rape and first degree burglary. Among other issues, he argues the court erred by excluding evidence of Avery's willingness to take a polygraph test because it showed his confidence in his innocence. Because Washington courts have rejected this inference of innocence, the court did not abuse its discretion by excluding the evidence. Regarding the sentencing, we accept the State's concession that the court erred by imposing consecutive standard range sentences. We accelerate review under RAP 18.12, affirm the conviction, but remand for correction of the judgment and sentence.

Trial Testimony

In the late evening hours, K.D. was alone in her apartment taking a bath. When she came out of the bathroom, she saw a man standing in the living room. She started screaming, the man rushed to her and pushed her over. He choked her, covered her mouth, held a knife to her throat and raped her. Terrified that she was going to die, K.D. decided her only hope of survival was to talk to the man. He slowly began to calm down; they talked for about an hour. Among other things, he said he had attended Washington State University and worked for the Department of Corrections. The man eventually allowed her to get up and get a bathrobe. He explained that he was able to open her apartment window because the security dowels she used were not long enough. The man left the apartment after K.D. convinced him that she would like to see him again. At his request, she gave him her pager number.

After the rapist left, K.D. immediately called her boyfriend, who brought her to emergency room. The treating doctor noted that K.D.'s lower lip was cut and that she had cuts to her hands and bruises to her leg.

The police went to the apartment and saw footprints just outside the window. They also saw dirt on the window sill and some on the bed.

K.D. never spent another night in the apartment. About a week after the rape, she received a page. She was terrified to respond, so she called the police. By the time the officer returned the page, there was no answer at the number.

Approximately three months later, the police received information that defendant Stacie Avery was the man who raped K.D. Detective Ka presented K.D. with a photo montage and she identified Avery as her assailant. Detective Ka then traced the phone number from the earlier page to the nearby Heatherwood Apartments, where Avery lived with his girlfriend.

Detective Ka arrested Avery. The next morning, the detective executed a search warrant for hair and blood samples. Avery asked about the samples and whether they would exonerate him. They discussed the evidence and various sentencing options. After this Discussion, Avery made a full confession to the rape

At trial, however, Avery denied raping K.D. or illegally entering her apartment. He testified that they had met in the parking lot and had talked on the phone several times. He testified that on the night in question, they engaged in consensual intercourse. He testified that K.D. felt guilty about cheating on her boyfriend and told him they should not see each other again.

The jury rejected Avery's defense and found him guilty of first degree rape and first degree burglary.

The Court Did Not Abuse its Discretion by Excluding Avery's Offer to Take a Polygraph

During the Discussion between Detective Ka and Avery regarding the hair and blood samples, Avery offered to take a polygraph to prove his innocence. Detective Ka checked with the polygrapher, Norm Matzke, and learned that it was possible to administer the test. Matzke and Avery spoke alone for about 5 or 10 minutes. Matzke then asked the detective to enter the room and the three of them discussed sentencing options, including the treatment available through a special sexual offender sentencing alternative (SSOSA). Both officers emphasized that the prosecutor, not the police, made such charging decisions. Detective Ka reminded Avery that the police had significant evidence connecting him to the crime, including the victim's positive identification and proof that Avery had a degree from Washington State University in criminal Justice. At that point, Detective Ka asked Avery if he wanted to proceed with a polygraph or provide a statement. Avery decided to forgo the polygraph test, they left and Avery gave the confession mentioned above.

Before Officer Ka testified, the State moved to exclude any reference to Avery's offer to take a polygraph. The prosecutor relied on State v. Rowe, infra, which held that such an offer is not admissible. The defense objected, arguing that Avery's offer was "res geste" and that the conversation between Avery and the police would not make sense if the offer were excluded. The court excluded evidence of Avery's offer to take a polygraph, ruling that it was not admissible to prove Avery's belief in his innocence ...


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