Appeal from Superior Court Snohomish County. Superior Court Cause No: 11-1-00586-5. Date filed in Superior Court: May 22, 2012. Superior Court Judge Signing: Bruce Weiss.
Lila J. Silverstein (of Washington Appellate Project ), for appellant.
Mark K. Roe, Prosecuting Attorney, and John J. Juhl, Deputy, for respondent.
AUTHOR: Schindler, J. WE CONCUR: Becker, J., Grosse, J.
[178 Wn.App. 595]
¶ 1 -- The 10-year statute of limitations for rape in the first degree begins on the date of commission of the crime or one year from the date " on which the identity of the suspect is conclusively established by deoxyribonucleic acid [(DNA)] testing ..., whichever is later."  Michael William McConnell appeals his conviction for rape in the first degree, arguing the State did not charge him within the 10-year statute of limitations. In the alternative, McConnell claims the delay in filing the charges violated due process. Because DNA testing did not conclusively establish the identity of McConnell until 2011 and the delay in filing the charges did not violate his due process rights, we affirm.
¶ 2 At around 8:30 a.m. on June 24, 1998, E.C. went to her portable classroom at Discovery Elementary School to prepare for the upcoming summer school session. Of the five portable classrooms located at the north end of the school campus, E.C.'s portable classroom was the farthest away to the east. E.C. locked the door to the portable but opened the southeast window. Over the course of the morning, E.C. left the classroom several times. Each time E.C. left, she locked the door but left the window open.
¶ 3 E.C. locked the door after returning to the classroom after lunch. While she was sitting at her desk, a male voice said, " 'Okay, here we go. Get down on the floor.'" E.C. turned around and saw a man dressed in black. The man was wearing a black knit cap with his face partially covered and only his eyes and nose visible, a black long-sleeved shirt, black pants, black gloves, and black lace-up boots. The man pointed a large-caliber revolver at E.C. and told her to lay face down on the floor and demanded money. E.C. told the man where to find her purse and heard him going through the purse.
[178 Wn.App. 596] ¶ 4 The man told E.C. not to move, scream, or look at him or he would " 'blow [her] fucking head off.'" The man then knelt down beside her and put his hand between her legs. The man told E.C. to remove her pants and underwear. The man held the gun to her neck with one hand while he digitally raped her with his other hand. The man then moved behind E.C. and raped her anally. When E.C. screamed in pain, the man put the gun to " her head and cocked it, reminding her of the consequences." After anally raping E.C., the man ordered her to roll onto her back and vaginally raped her.
The man then got dressed and asked E.C. where the telephone was located. The man tore the telephone cord and wires from the wall and told E.C. " that he would shoot her if he saw her outside before he was gone." Approximately five minutes after the man left, E.C. ran to an adjacent portable classroom and called 911.
¶ 5 Snohomish County and Everett Police Department officers responded to the 911 call. E.C. " 'was crying and her whole body was trembling. ... [S]he collapsed on the floor sobbing and trembling.'" E.C. gave the police officers a brief summary of what happened before going to the hospital. Officers searched the classroom and surrounding area. The officers observed scuff marks on the exterior wall below the southeast window and found a black sweater south of the school. A K-9 dog tracked a scent from the portable classroom to a grassy area nearby where the K-9 officer observed bicycle tracks. The officers took plaster casts of the bicycle tracks. A latent fingerprint analysis of the telephone found no fingerprints of value.
¶ 6 The hospital performed a sexual assault examination of E.C. Before meeting with E.C. the next day, officers collected E.C.'s clothing and the sexual assault evidence from the hospital.
¶ 7 E.C. told the officers that she locked the door to the classroom but left the southeast window open. E.C. said that after returning from lunch, she was sitting at her desk looking out the north window and did not hear the man [178 Wn.App. 597] climb inside. E.C. described the man who raped her as a white male, between 18 and 24 years old, and possibly blond. E.C. believed the man was between 5 feet 10 inches and 6 feet tall and weighed 170 pounds. The Snohomish County Sheriff's Office issued a news release with a description of the suspect and a composite drawing based on E.C.'s description.
¶ 8 On September 10, 1998, Washington State Patrol Crime Laboratory (WSPCL) forensic scientist Brian Smelser obtained semen samples from the swabs and underwear taken from E.C. Using restriction fragment length polymorphism (RFLP) testing, WSPCL forensic scientist Jodi Sass identified the DNA of two male contributors. One contributor was identified as E.C.'s spouse. The other contributor was an unknown male. The DNA profile of the unknown male did not match any DNA profile in the WSPCL convicted felon database.
¶ 9 In 1998, the Federal Bureau of Investigation (FBI) started maintaining a national DNA index system, the " Combined DNA Index System" (CODIS). The FBI uses short tandem repeat (STR) DNA testing for the CODIS database. In 2000, the WSPCL transitioned from using RFLP to STR DNA testing. When the WSPCL transitioned from RFLP to STR testing, 957 unknown DNA profiles in the WSPCL database were " classified as closed work requests."
¶ 10 On October 12, 2000, the court sentenced Michael William McConnell for the crime of residential burglary. On December 5, 2000, the court sentenced McConnell for committing the crime of residential burglary with a deadly weapon. As a result of the felony convictions, McConnell was ordered to submit to DNA testing.
¶ 11 In 2003, the lead detective in the 1998 rape investigation, Snohomish County Detective George Wilkins, authorized [178 Wn.App. 598] the release and destruction of the evidence from the unsolved 1998 rape case. According to Detective Wilkins, " [T]here was a big push at the Sheriff's office to help the property room clear out evidence" and he mistakenly believed the statute of limitations for the 1998 rape had expired. Detective Wilkins said he did not contact the prosecutor's office to confirm whether the statute of limitations had expired before authorizing destruction of the evidence retained at the Snohomish County Sheriff's Office. The destroyed evidence included the black sweater found near the school, photographs of the classroom, photographs of the abrasions on E.C.'s neck, photographs of the area surrounding the school, the plaster casts of the bicycle tracks,
the telephone the suspect had pulled out of the wall, and ...