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 ...