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State v. Cannon

September 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
VICTOR KENNETH CANNON, APPELLANT.



Appeal from Superior Court, King County; 90-1-07283-1. Honorable Mary W. Brucker, Judge.

Authored by Gerry L. Alexander. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Philip A. Talmadge, WE Concur

The opinion of the court was delivered by: Alexander

En Banc

ALEXANDER, J. -- Victor Cannon appeals his conviction and sentence on a charge of rape in the first degree, contending that the trial court erred in allowing so-called DNA evidence to be admitted into evidence at his bench trial. He also assigns error to the trial court's refusal to grant his motion to dismiss the rape charge for alleged violations of the time for trial and discovery rules. Finally, he challenges the trial court's imposition of an exceptional sentence. We affirm the trial court in all respects.

In the early morning hours of May 25, 1990, G.S. was driving alone in her Camaro in south Seattle. She was following another car that was being driven by an acquaintance, J.S. While so engaged, G.S.'s vehicle was suddenly "rammed" on the left side by a full sized Ford pickup. Seattle Police Dep't Case File (SPD File) at tab 1, pp. 3, 4. *fn1 Although the impact knocked her car onto the shoulder of the road, she did not immediately stop her vehicle, being concerned that the driver of the truck had "deliberately struck" her. SPD File at tab 1, p. 2. Eventually, however, the driver of the truck was able to force G.S. to stop her car on a side street. The driver of the truck, a male, then got out of his vehicle, walked to G.S.'s car, and accused her of causing the collision between her car and his truck.

When G.S. stepped out of her car to respond to the other driver's protestations, the man "grabbed her by her right arm and pulled her to the guard rail . . . [where he] grabbed [her] by the hair and pulled her over the guard rail." SPD File at tab 1, p. 4. G.S. began fighting the man in an effort to defend herself, but he "threw her down the embankment." SPD File at tab 1, p. 4. She ended up some 30 feet away from where the affray had commenced, in the midst of a thorny bush. G.S.'s attacker caught up with her and upon doing so, hit her at least twice on the left side of her head. He then ordered her to remove her pants. G.S. complied, but complained that the "stickers" were scratching her and causing her pain.

SPD File at tab 1, p. 5. Her attacker responded by punching her in the head with a closed fist again and saying: "So you've never been raped before." SPD File at tab 1, p. 5. He then penetrated her vaginally with his fingers and penis, and forced her to perform oral sex on him.

The rapist, who had been unknown to G.S., climbed the embankment and was returning to his truck when J.S. arrived on the scene, after locating G.S.'s now-vacant car. Before G.S.'s assailant drove away in his truck, J.S. was able to note a description of the truck and observe that the driver was a white male. J.S. then took G.S. to Highline Community Hospital where she remained for several days for treatment of a concussion and multiple abrasions on her back, arms, and legs. While G.S. was hospitalized, she underwent a battery of tests during which specimens of bodily fluids were collected from her and her clothing for later analysis.

On July 27, 1990, Victor Cannon was stopped for speeding in his full sized Ford pickup, which Seattle Police Officers noticed had similarities to the vehicle that had been reported to have been involved in the rape of G.S. Cannon subsequently became the focus of the investigation into that rape. Search warrants were thereafter issued authorizing the seizure of blood, saliva, and hair samples from Cannon, and for the seizure and search of his truck. Three days later Cannon appeared in a line-up that was viewed by G.S. She recognized Cannon in the line-up as "familiar," but was unable to positively identify him as the man who had raped her two months earlier. SPD File at tab 9, p. 1. Two analysts who separately examined Cannon's and G.S.'s vehicles reported that "it is more probable than not, that [Cannon's] Ford struck [G.S.'s] Camaro." SPD File at tab 19, p. 2.

On November 29, 1990, Cannon was charged in King County Superior Court with first degree rape, "under circumstances where the defendant kidnapped and inflicted serious physical injury on [G.S.]." Clerk's Papers at 2.

Cannon was also charged in the same information with attempted rape in the first degree arising out of an incident allegedly occurring on November 22, 1990, in which it was alleged that Cannon assaulted another woman, S.T., who was reportedly similar in appearance to G.S., lived in the same apartment complex as G.S., and, like G.S., was a bartender in the Burien area. The count involving S.T. was subsequently amended to attempted rape in the second degree. On Cannon's motion, the two charges were severed for trial.

At Cannon's arraignment on the charge of rape in the first degree arising from the alleged attack on G.S., his trial was scheduled for February 11, 1991, a date that was within the time limits for trial as provided in CrR 3.3. At an omnibus hearing held thereafter, the State requested, and the trial court authorized, a second draw of Cannon's blood in order to replace a blood sample that, according to the State, had been found to "have deteriorated to the point [where it was] useless" to the laboratory that was conducting a Deoxyribonucleic Acid (DNA) analysis of Cannon's blood. Clerk's Papers at 6.

Cannon did not go to trial on February 11. On February 19, the date that the trial court had determined Cannon's time for trial would expire, the State moved to extend the trial date two days for the reason that the deputy prosecutor assigned to represent the State was in trial on another case. Cannon did not object to this request. The trial court, relying on CrR 3.3(d)(8), granted the State's motion. On February 21, another extension of the trial date was requested by the State for the same reason.

This request was also granted. Cannon again did not object, and the trial was reset for February 27.

The deputy prosecutor sought an additional continuance of the trial date on February 27, indicating that he expected to be available for trial the next day. On this occasion, Cannon objected to the continuance and moved to dismiss the charge for what he claimed was a violation of CrR 3.3, the time for trial rule. At a hearing the following day, the trial court heard extensive argument on whether to grant the State's request for another continuance of the trial date. During the hearing, the deputy prosecutor informed the trial court that the results of tests of Cannon's blood sample, which were being conducted by the FBI, had not yet been received by the prosecutor's office. Cannon also moved at that hearing to dismiss the first degree rape charge, contending that prosecution's handling of the blood sample and paint chips constituted discovery abuse and case mismanagement, thus violating his due process rights. The trial court granted a five-day continuance of the trial date to March 7. It did so after considering, on the record, factors relevant to both Cannon's case and another trial that had been assigned to that court for trial. These factors included the availability of witnesses and evidence in both cases, as well as the original trial dates and predicted length of both cases.

On March 7, the trial court denied Cannon's motion to dismiss the charge against him for what Cannon had contended was a violation of CrR 3.3, concluding that the prosecutor's over-assignment of cases was "unforeseen." Report of Proceedings (RP) (3/7/91) at 28. Finally, on March 8, it denied Cannon's motion to dismiss the first degree rape charge for what Cannon alleged was discovery abuse and case mismanagement, ruling that the prosecution's handling of the scientific tests had been appropriately "diligent." RP (3/8/91) at 22.

On April 29, a hearing was conducted to determine the admissibility of the results of the testing of samples taken from Cannon and G.S., as well as from G.S.'s clothing. At that hearing, the State called three witnesses: Dr. Bruce Budowle, director of DNA research for the FBI; Dr. Stanley M. Gartler, a professor of genetics and medicine at University of Washington; and Dr. Richard Gelinas, director of gene regulation at ICOS Corporation, a Bothell-based pharmaceutical research and development firm.

Dr. Budowle described the laboratory processes employed by the FBI to extract DNA from a sample and separate it into bands representing identifiable sections (alleles) of the DNA. He also described the process by which the FBI laboratory causes those bands to be arranged in an autoradiograph (a form that can be visually inspected), and how an autoradiograph of one sample is compared with that of another sample or samples. Budowle also testified about the data upon which the FBI relies in estimating the frequency with which certain alleles can be expected to appear in a given population. It is this data, according to Budowle, that underlies the statistical significance of a "match" or series of "matches" between DNA from a known source (e.g., Cannon's blood sample) and that from an unknown source (e.g., stains and specimens obtained from the clothing G.S. was wearing on May 25, 1990). Dr. Gelinas and Dr. Gartler testified about probability and human genetic theories upon which the FBI relied in calculating the statistical significance of DNA matches.

In response, Cannon's counsel presented the testimony of Dr. William Shields, a professor at the College of Environmental Science and Forestry of the State University of New York. He described concerns that he and other scientists had raised regarding the FBI's genetics and statistical theories, and the reliability of the FBI's data base. Cannon also presented the testimony of Dr. Peter d'Eustachio, an associate professor of biochemistry at New York University, who critiqued the FBI's laboratory protocol.

Following the hearing, the trial court granted the State's motion to admit the FBI's report containing the results of tests conducted at its laboratory, and denied a defense motion to exclude the report. The trial court, relying on Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923), found that each of the following matters had gained general acceptance in the scientific community: (1) the theory that "DNA forensic testing can produce reliable results"; (2) the existence of techniques "that are capable of producing reliable results in DNA identification"; (3) "the protocol developed by the FBI for determining that DNA patterns from a known suspect source matched with DNA patterns from a crime scene source"; and (4) "the processes implemented by the FBI for determining the probability of a match." RP (5/13/91) at 111-12.

Cannon thereafter waived his right to trial by jury on the charge of raping G.S., and, together with the State, stipulated to the facts as presented in certain police reports and exhibits. *fn2 In its oral ruling, the trial court recounted the many items of evidence "that point so clearly to the defendant," and indicated:

No one of these little coincidences by themselves do more than point to the defendant. But you put it all together, and they raise a very strong presumption that it's the defendant who was there [at the rape scene]. It's only by considering beyond a reasonable doubt that, yes, it ...


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