May 19, 1997
STATE OF WASHINGTON, RESPONDENT,
KEITH MONTGOMERY DYER, APPELLANT.
Appeal from Superior Court of King County. Docket No: 93-1-00489-0. Date filed: 04/08/94. Judge signing: Hon. Jo Anne Alumbaugh.
Authored by Susan R. Agid. Concurring: William W. Baker, Walter E. Webster.
The opinion of the court was delivered by: Agid
AGID, J. -- Keith Dyer was convicted of first degree aggravated murder and second degree rape of a child in the death of 13-year-old K.H. He contends that the trial court erred when it refused to allow him to present evidence implicating another suspect in the killing and that there was insufficient evidence to support his conviction for premeditated first degree murder. He asserts that the trial court should have granted a mistrial when a State's witness surprised the defense with testimony that semen could be "aged." Finally, he argues that the trial court should have excluded the State's DNA evidence. We disagree and affirm.
K.H. ran away to join the Gulf War opposition movement in early 1991. Between January and April, she was homeless, living variously at Gasworks Park, the "Vigil House" (a house set up near the park for participants in the protests against the war) and in a partially renovated school bus near the park. She was last seen alive on April 11, 1991, with two friends, Jacob Greenleaf and Nathan Hofstetter. On April 14, her partially unclothed body was found inside the school bus with multiple stab wounds to the back of her head and neck. When her body was discovered, she was lying on her front side with her legs open, exposing her genitals. Homicide investigators found two used condoms in the bus. One of the condoms contained semen and the other had semen on the outside. At trial, the State offered testimony that the DNA in the semen found in the condoms and in K.H.'s vagina matched Dyer's. Dyer told officers that he knew K.H. through the vigils at Gasworks Park and that he had sex with her twice on the bus, but denied killing her. An inmate who was housed near Dyer before trial testified that he overheard Dyer admit to killing K.H. and saying that he "got off" on the power. The jury convicted Dyer of first degree aggravated murder and second degree rape of a child on March 8, 1994.
A. Other-Suspect Evidence
Dyer first contends that the trial court should have allowed him to present evidence and argue that Nathan Hofstetter committed the murder instead of Dyer. He argues that the evidence against Hofstetter was so strong that it would have raised a reasonable doubt about Dyer's guilt, established Hofstetter's bias as a witness, and supported his contention that the State failed to fully investigate the murder. He attempted to establish that Hofstetter was one of the last people seen with K.H. and left town the weekend she was killed, that he carried a knife which could have inflicted the wounds, that he knew the details of the murder and confessed to having killed her, and had a motive to kill her because she teased him sexually. During the pretrial hearings, the trial court excluded all evidence and argument implicating Hofstetter as an alternate suspect.
Evidentiary rulings are within the discretion of the trial court and will not be disturbed absent an abuse of discretion; i.e., untenable or manifestly unreasonable grounds. State v. Clark, 78 Wash. App. 471, 477, 898 P.2d 854, review denied, 128 Wash. 2d 1004, 907 P.2d 296 (1995). Evidence implicating another suspect is admissible only when the defense can establish a clear nexus between the third person and the crime. State v. Condon, 72 Wash. App. 638, 647, 865 P.2d 521 (1993), review denied, 123 Wash. 2d 1031, 877 P.2d 694 (1994). Motive, ability, and opportunity for a third person to commit a crime are not sufficient to implicate that person as an alternate suspect. State v. Rehak, 67 Wash. App. 157, 834 P.2d 651 (1992), review denied, 120 Wash. 2d 1022, 844 P.2d 1018, cert. denied, 508 U.S. 953, 124 L. Ed. 2d 665, 113 S. Ct. 2449 (1993). Only when the offered testimony would evidence a "step taken by the third party that indicates an intention to act" on the motive or opportunity to commit the crime, does the trial court abuse its discretion in refusing to allow the testimony. Rehak, 67 Wash. App. at 163.
Dyer first argues that the required nexus exists here because Nathan Greenleaf would testify that, upon being told that K.H. was murdered, Hofstetter said, "I know, I did it." The court sustained the State's hearsay objection to this statement, and Dyer did not attempt to elicit the confession directly from Hofstetter. While an admissible confession may establish a strong nexus between an alternate suspect and a crime, this confession cannot because it is inadmissible hearsay. Dyer argues that the statement is admissible under ER 804(b)(3), the statement against interest exception to the hearsay rule. But under that exception the declarant must be unavailable to testify. Hofstetter did testify but was never questioned about the statement. Therefore, ER 804(b)(3) does not apply. Nor is the statement admissible under any other exception to the hearsay rule. The requisite clear nexus between an alternate suspect and the crime must come from reliable and admissible evidence.
Dyer also argues that Hofstetter lived near the area where K.H.'s body was found, that he was with her on the Friday prior to her murder but left Seattle that weekend, that he carried a knife which could have been consistent with the one used to kill K.H., and that Hofstetter had a motive to kill K.H. because she teased him sexually. We disagree that the trial court erred by excluding this evidence. Taken together, it is not sufficient to connect Hofstetter to the murder. Even in the context of the death of a friend, neither close physical proximity to the victim nor leaving the area for a short trip suggests a connection between Hofstetter and the crime. In addition, a forensic pathologist and a crime lab expert testified that only very general characteristics of the knife used to inflict the wounds could be determined by examining the body. Therefore, testimony about the knife would not have connected Hofstetter to the murder. Finally, sexual teasing is a tenuous motive at best and equally insufficient to create the required nexus. Therefore, none of the proposed testimony and argument creates a direct connection between Hofstetter and the crime. Rather, the evidence goes only to possible motive and opportunity. This is not enough.
Similarly, if the asserted testimony is not sufficient to implicate an alternate suspect in the crime, it is also insufficient to establish that he was biased and would be an unreliable witness. Condon, 72 Wash. App. at 647. Because Dyer failed to establish that Hofstetter was clearly connected to the crime, the evidence has little impeachment value and the trial court properly excluded it.
B. Sufficiency of the Evidence
Dyer next contends that there is insufficient evidence of premeditation and of any aggravating factor. In reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (citing ( Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). "A claim of insufficiency [of the evidence] admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom." State v. Wilson, 71 Wash. App. 880, 891, 863 P.2d 116 (1993), rev'd on other grounds, 125 Wash. 2d 212, 883 P.2d 320 (1994).
Dyer first argues that there was insufficient evidence to establish premeditation. Premeditation is "'the deliberate formation of and reflection upon the intent to take a human life.'" State v. Gentry, 125 Wash. 2d 570, 597, 888 P.2d 1105, cert. denied, 133 L. Ed. 2d 79, 116 S. Ct. 131 (1995) (quoting State v. Robtoy, 98 Wash. 2d 30, 43, 653 P.2d 284 (1982)). It is the mental process of thinking prior to an act. Gentry, 125 Wash. 2d at 598. Mere intent to kill is not sufficient to establish premeditation. State v. Ollens, 107 Wash. 2d 848, 850, 733 P.2d 984 (1987). But premeditation may be inferred when the circumstances of the crime suggest that the defendant considered the death prior to acting. Gentry, 125 Wash. 2d at 598-99. For instance, multiple wounds and the use of a weapon suggest premeditation. See Ollens, 107 Wash. 2d at 851 (sufficient evidence of premeditation where the victim was stabbed multiple times with defensive wounds because the jury may have reasonably determined that the defendant sought a weapon and continued stabbing the victim to effectuate a robbery after the victim fought back); State v. Gibson, 47 Wash. App. 309, 734 P.2d 32, review denied, 108 Wash. 2d 1025 (1987) (evidence that a homicide was preceded by a different type of attack is sufficient to show premeditation). Dr. Fligner, a pathologist who examined K.H.'s body, testified that she may have been strangled prior to being stabbed. From this, the jury may have inferred that K.H. was attacked prior to the stabbing or that Dyer had to find a weapon when strangulation failed. Because the jury also found that Dyer raped K.H. prior to killing her, it may have inferred that he killed her to conceal the earlier crime. A motive of that kind is also circumstantial evidence of premeditation. See Ollens, 107 Wash. 2d at 851. Therefore, we find sufficient evidence to support the jury's finding of premeditation.
Dyer also argues that there is insufficient evidence of any aggravating factors. In its special verdict, the jury found that the crime was committed in the course, furtherance, or immediate flight from a first degree rape and to conceal the identity of the person who committed the rape. We will uphold the verdict if there is substantial evidence supporting either of the factors in the record. Dyer argues that because there were no defensive wounds on K.H.'s body and her vagina did not show signs of forced intercourse, there was no evidence that she was raped. However investigators found semen in her vagina but none in the crotch of her pants, suggesting that she had sexual intercourse after the last time she was clothed. In addition, her legs were spread open when her body has found, and her pants were pulled down around the ankles with one shoe laced and on her foot. A strip of duct tape was also found in her hair. All this evidence suggests that K.H. was restrained and her clothes pulled off to facilitate a rape. Therefore the jury could reasonably have found that Dyer murdered her in the course, furtherance, or immediate flight from first degree rape. Having found that Dyer raped her, it was also reasonable for the jury to have determined that he may have killed her to stop her from reporting the rape because she could identify him. See State v. Jeffries, 105 Wash. 2d 398, 717 P.2d 722, cert. denied, 479 U.S. 922, 93 L. Ed. 2d 301, 107 S. Ct. 328 (1986) (sufficient evidence to find aggravating factor when the jury found that the defendant killed the victim after she observed him commit a prior crime).
Dyer next contends that the trial court should have granted his motion for a mistrial because Michael Grubb, a Washington State crime lab forensic scientist, testified that by detecting certain proteins, he was able to "age" semen found in bodies. By so doing he could determine when the semen was deposited there and relate it to the time of death. Defense counsel objected to this testimony because the State had neither disclosed it nor provided any literature supporting the opinion in discovery. The court granted a recess until the next day, and defense counsel asked for a mistrial. The court ruled that Grubb's testimony was improper because defense counsel was unaware that he would be testifying to the age of the semen, and the testimony did not appear to be supported by the available scientific literature. The court denied the mistrial motion and gave a curative instruction. It did not believe that the jury understood the testimony or its significance because the attorneys erupted in objections as Grubb began testifying. The court gave the following instruction:
With respect to the testimony on aging of semen samples, you are to disregard the opinion offered by state forensic scientist Michael Grubb. No scientific literature or test which supports Mr. Grubb's contention that forensic scientists can age a semen sample were presented to the court prior to his testimony. Accordingly, you must disregard such an opinion.
Dyer argues, however, that the curative instruction was insufficient to "unring the bell" and the trial court abused its discretion by denying his motion. The decision to grant or deny a motion for a mistrial is within the discretion of the trial court. State v. Johnson, 69 Wash. App. 528, 540, 849 P.2d 662 (1993), aff'd, 124 Wash. 2d 57, 873 P.2d 514 (1994). The trial court should grant the mistrial only when no other remedy could repair the error in the trial. Johnson, 69 Wash. App. at 540. We consider (1) the seriousness of the error, (2) whether the error involved cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard the error. The trial court agreed that Grubb's testimony was not admissible and that the prosecutor committed misconduct by eliciting it. However, it also found that the jury probably did not understand what had happened, given counsel's prompt objection, and that a curative instruction would be sufficient to repair the damage. In light of the strong curative instruction and the little testimony that the jury actually heard with regard to the aging of semen, the damage to Dyer was slight compared to the State's other evidence. When it is likely that a trial error had little effect on the jury, a mistrial is not appropriate. State v. Crane, 116 Wash. 2d 315, 332-33, 804 P.2d 10, cert. denied, 501 U.S. 1237, 115 L. Ed. 2d 1033, 111 S. Ct. 2867 (1991). The trial court was within its discretion to deny Dyer's motion for a mistrial.
D. DNA Evidence
Dyer finally contends that the trial court erred by admitting the State's DNA evidence which showed that his DNA matched that of the semen found in K.H.'s vagina. The trial court heard substantial testimony about DNA testing and methods in a pretrial Frye *fn1 hearing. Dyer takes issue with the method of statistical analysis, the FBI match windows, and the calculation of frequencies using the FBI databases. The Supreme Court has directly addressed and resolved these issues since appellant filed his brief. Because we find that the Supreme Court's holdings directly control Dyer's contentions, we consider his issues very briefly.
First, in State v. Jones, 130 Wash. 2d 302, 308-11, 922 P.2d 806 (1996), the Supreme Court held that the method used to determine the statistical probability that a suspect's blood matched a semen sample, or the "interim ceiling principle," was generally accepted in the scientific community and is admissible in Washington. The same method was used at Dyer's trial. Therefore, the trial court correctly ruled that the evidence was admissible. In State v. Copeland, 130 Wash. 2d 244, 922 P.2d 1304 (1996), the Supreme Court held that the FBI +- 2.5 match window is admissible, despite questions about reliability due to band shifting. The Copeland court determined that the accuracy of the matching tests, analyst qualifications, and the FBI lab's ability to perform or reproduce the tests goes to the weight of the evidence, rather than its admissibility. Copeland, 130 Wash. 2d at 276. Finally, the Copeland court rejected a challenge to the size and quality of the FBI's population databases concluding that this is also a matter of weight, rather than admissibility, and should be left to the discretion of the trial court. 130 Wash. 2d at 272.
William W. Baker
Walter E. Webster