Appeal from Spokane Superior Court. Docket No: 11-1-02330-4. Date filed: 10/26/2012. Judge signing: Honorable Kathleen M O'connor.
Nancy P. Collins (of Washington Appellate Project ), for appellant.
Steven J. Tucker, Prosecuting Attorney, and Mark E. Lindsey, Deputy, for respondent.
AUTHOR: Robert E. Lawrence-Berrey, J., Stephen M. Brown, J., Laurel H. Siddoway, C.J.
[183 Wn.App. 157] ¶ 1 A jury found Julio Davila guilty of second degree murder. The key piece of evidence [183 Wn.App. 158] tying Mr. Davila to the murder was a baseball bat containing Mr. Davila's DNA. During trial, Mr. Davila did not know that the forensic analyst who tested the DNA had been fired from her job due to a long history of incompetence in conducting DNA tests. The trial court denied Mr. Davila's motion for a new trial based on the prosecution's failure to disclose this information. On appeal, Mr. Davila contends the State's failure to disclose material evidence impeaching an important witness for the State violates Brady. He also contends the prosecutor committed misconduct by arguing inconsistent theories of culpability at two separate trials.
¶ 2 We conclude that there was no Brady violation because there was no evidence of DNA cross contamination in this case and, therefore, the nondisclosure of the information was not material. We also conclude that no prosecutorial misconduct took place. A prosecutor may argue inconsistent theories of culpability at separate trials when, as here, new evidence comes to light after the first trial, which supports the second theory. We, therefore, affirm.
¶ 3 In the early morning hours of June 18, 2007, Jeramie Davis called 911 to report that he had discovered John G. Allen, the owner of an adult material bookstore, on the store's floor. When Officer Brian Cestnik responded, he found Mr. Allen unconscious on the floor with a baseball bat under his knees. After paramedics took Mr. Allen to the hospital, Officer Cestnik placed the baseball bat on a shelf close to where Mr. Allen had been found. Mr. Allen later died at a hospital due to blunt force trauma to the head.
¶ 4 Officer Cestnik interviewed Mr. Davis. Mr. Davis told the officer that he found Mr. Allen on the floor earlier that [183 Wn.App. 159] evening but thought he had passed out, so he left. According to Mr. Davis, he later returned to the bookstore at the encouragement of his sister and then called police. An investigator later swabbed four areas of the baseball bat and submitted the swabs, labeled A, B, C, and D, for testing at the Washington State Patrol's Crime Laboratory (WSP crime lab).
¶ 5 Denise Olson, a forensic analyst for the WSP crime lab, tested the four swabs. Her report stated that she used " a standard DNA extraction protocol" in evaluating the swabs. Clerk's Papers (CP) at 274. After extracting DNA from the swabs, she quantified them for human DNA levels and then amplified them. She concluded that one of the swabs contained DNA from Mr. Allen and excluded Mr. Davis. She obtained a " partial DNA typing profile from swab D," which had been taken from the handle of the bat, and concluded the swab was " a mixture of at least two individuals." CP at 275. Her report stated: " The major contributor is an unidentified male, designated Unknown Individual A. ... Jeramie Davis is excluded as a contributor to this profile." CP at 275.
¶ 6 Mr. Davis was eventually charged with first degree murder for causing Mr. Allen's death. At trial, two witnesses testified that Mr. Davis admitted that he stole some money, checks, and pornography from Mr. Allen's store on the night of the murder. The prosecution argued that the detectives had " ruled out any other suspect" other than Mr. Davis. CP at 76. During closing argument, the prosecution also argued that Mr. Davis hit Mr. Allen " over the head with the baseball bat" and then " clean[ed] out the store." CP at 76. In response to Mr. Davis's argument that DNA on the bat showed someone else was the killer, the prosecution countered that Mr. Davis had worn gloves while inside the store. Mr. Davis was convicted of first degree murder for causing Mr. Allen's death. This court affirmed the conviction in an unpublished decision. State v. Davis, noted at 151 Wn.App. 1047, 2009 WL 2480132.
[183 Wn.App. 160] ¶ 7 After Mr. Davis's conviction, detectives continued to get information about individuals whose fingerprints matched previously unidentified fingerprints lifted from Mr. Allen's store and truck. In 2011, a Combined DNA Index System (CODIS) search of the " 'unknown Individual A'" swab was identified as matching the profile of Mr. Davila. Report of Proceedings (RP) at 290; CP at 4. The State charged Mr. Davila with murder under two different theories: first degree felony murder for working with Mr. Davis to commit a robbery and thereby causing Mr. Allen's death; and, second degree felony murder for causing Mr. Allen's death in the course of an assault or attempted assault in the second degree. During questioning, Mr. Davila denied knowing Mr. Allen or Mr. Davis or having any involvement in the murder.
¶ 8 At trial, State's witnesses carefully detailed the chain of custody of key pieces of evidence. Detective Cestnik, who had become a detective after the Davis trial, testified that Mr. Allen was lying in a pool of blood with magazines next to him. Detective Cestnik stated that he wore gloves when he moved the baseball bat from the floor to preserve any potential DNA evidence. During cross-examination, Detective Cestnik admitted that he did not place the baseball bat in a paper bag and that the handle of the bat was resting on top of some boxed DVDs.
¶ 9 Detective John Miller testified that he collected evidence from the crime scene. He testified that some of Mr. Allen's relatives arrived during the investigation and informed him that Mr. Allen's truck was missing. Patrol officers later located the truck. The detective directed forensic personnel, Carrie Johnson and Lori Preuninger, to gather fingerprints from inside the truck and store. Fingerprints taken from a counter close to where Mr. Allen was found matched Mr. Davila's.
¶ 10 Detective Timothy Madsen, the lead detective on the case, testified that he investigated the interior of Mr. Allen's store after interviewing Mr. Davis. He removed the [183 Wn.App. 161] baseball bat and had forensic personnel check for latent prints on countertops and items inside the store. He also had forensic technicians swab the steering wheel of Mr. Allen's truck. According to Detective Madsen,
Ms. Preuninger swabbed four different areas of the baseball bat. Detective Madsen then submitted those swabs to the WSP crime laboratory. He explained that once the evidence was collected, it was placed in sealed envelopes and then stored in the property room. Detective Madsen testified that he personally took the evidence from the property room to the WSP crime lab for testing.
¶ 11 The State did not call Ms. Olson to discuss her initial testing of the evidence. Instead, it called Lorraine Heath, the supervising forensic scientist for the WSP crime lab. Ms. Heath testified that she retested " swab D" from the baseball bat and concluded that the unknown profile matched Mr. Davila's DNA profile. RP at 436-37. Ms. Heath explained the crime lab's contamination prevention procedures and controls. She also testified that she reviewed Ms. Olson's previous testing of sample D and the steering wheel swabs. She explained that due to the low level of DNA from the steering wheel swab, " Julio Davila can be neither included nor excluded as a possible contributor to [the] profile." RP at 446. During cross-examination, defense counsel questioned Ms. Heath about the possibility of a " secondary transfer" of DNA from other sources to the baseball bat but did not question her about Ms. Olson's original handling of the evidence. RP at 458. Ms. Preuninger, a forensic specialist for the Spokane County Sheriff's Office, swabbed the bat and detailed the precautions to prevent contamination.
¶ 12 After the State rested, Mr. Davila moved to dismiss the charges for insufficient evidence. The trial court dismissed the first degree murder charge, finding there was no evidence that Mr. Davila was an accomplice to the robbery committed by Mr. Davis.
¶ 13 During closing argument, the prosecution emphasized that the investigation and handling of the evidence [183 Wn.App. 162] was meticulous and professional. He reminded the jury that Detective Madsen secured the scene and that everyone wore gloves. The bat was secured in a property room and Ms. Preuninger swabbed the bat in four locations and gave the swabs to Detective Madsen. The prosecutor highlighted " the great care and procedures that [Ms. Preuninger] use[d] to make sure that those swabs [were] not contaminated." RP at 537-38. The State concluded, " Ladies and gentlemen, we know whose DNA that is now. We didn't have Mr. Davila's DNA in the system back when we were initially investigating this crime, but now we know who swung that bat; Julio Davila swung the bat." RP at 543.
¶ 14 The defense's theory was that Mr. Davis killed Mr. Allen. Defense counsel argued that " [t]he evidence pointed directly to [Mr. Davis]" and attributed the absence of DNA and fingerprint evidence to Mr. Davis's use of gloves. RP at 544. The prosecutor responded that what Mr. Davis did was " inexcusable," but " Mr. Davis, according to the evidence, didn't swing the bat." RP at 556. The prosecutor then returned to the strength of the DNA evidence: " Whose DNA was on the bat? Mr. Davila swung the bat." RP at 559. The jury found Mr. Davila guilty of second degree murder.
¶ 15 Before sentencing, defense counsel learned that Ms. Olson had been fired for poor performance in conducting DNA tests. The defense filed a public disclosure request and obtained a lengthy report from the Washington State Patrol detailing years of Ms. Olson's incompetence and " unsatisfactory performance." CP at 237-60. The February 2011 report, written by Larry Hebert, the director of the WSP's Laboratory Services Bureau, explained that after numerous errors performing DNA tests, Ms. Olson was given a final opportunity to improve her performance under a 90-day job improvement plan, supervised by Ms. Heath, which assessed her ...