[Copyrighted Material Omitted]
Superior Court County: King. Superior Court Cause No: 11-1-01814-4 SEA. Superior Court Judge Signing: Mary Yu. Date filed in Superior Court: October 26, 2012.
Thomas M. Kummerow (of Washington Appellate Project ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Deborah A. Dwyer, Deputy, for respondent.
Written by: Schindler, J. Concurred by: Verellen, A.C.J., Dwyer, J.
[186 Wn.App. 754] [¶ 1] A jury convicted Gary Wade of murder in the second degree of Michelle Thornton. Wade seeks reversal, arguing the court erred by (1) excluding other suspect evidence, (2) admitting testimony in violation of his right to confrontation, (3) denying his motion for a mistrial, and (4) refusing to instruct the jury on the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. Wade also contends the court erred by including a prior Utah conviction in the calculation of his offender score. We affirm.
[¶2] In 2010, Michelle Thornton worked as a cashier at the Upper Queen Anne Safeway and lived at the Vine Court Apartments in Belltown. Thornton was a mature and " dependable" employee, " always on time, ... always well dressed." The Vine Court Apartments is a secure building with a " high end" video security system. To gain access to the building, a person must have a key or be " buzzed in" by a resident through a keypad.
[¶3] Thornton was friendly and outgoing and invited people to " her apartment quite a bit." Thornton had a view of the Space Needle from her apartment and hosted an annual New Year's Eve party with her friends to watch the fireworks. Thornton's friends described her as " fun to be around. She loved life and loved getting outdoors." Thornton also liked to drink alcohol and use drugs. Gary Wade often delivered cocaine to Thornton at her apartment and sometimes stayed and smoked crack cocaine with Thornton and her friends.
[¶4] On December 28, 2010, Thornton posted an invitation to her annual New Year's Eve party on her Facebook page. Thornton called her longtime " neighbor and friend" of 21 years, Richard Bollinger, twice that day to ask him to get her some " crack." Bollinger told her he " was trying to get off [drugs]" and had erased from his phone " all the contact [186 Wn.App. 755] information for anybody who [he] knew had any relationship to drugs and drug dealing." Later that night, Thornton went out for pizza with her friend Charles Cruise. Thornton and Cruise had been " great friends" for 20 years.
[¶5] Thornton did not show up for her scheduled 2:15 p.m. shift at Safeway on December 30 or for her morning shift the next day, December 31. Safeway Manager Gregory Fox thought it " odd" because she had never " just failed to appear." It was " not like [Thornton] at all to miss work."
[¶6] Thornton's friend and coworker Andrew Laissue called Thornton on December 30 but was not able to reach her. Cruise tried calling Thornton on December 29 or 30. Cruise said someone picked up the phone and then " hung it up" without saying anything. Thornton's New Year's Eve party did not take place as planned.
[¶7] On January 3, 2011, Cruise asked the police to check on Thornton. Seattle Police Department Officer Mark Bisson and Officer Robin Roberts went to the apartment building with Cruise. The apartment manager let them into Thornton's apartment. Cruise stood in the doorway while the officers quickly checked the living room, kitchen, bedroom, and bathroom. The officers were inside Thornton's apartment for only " 15 to 30 seconds" because it was a " welfare check ... on the person to see if they were home."
[¶8] On January 4, Thornton's father filed a " missing person" report. On January 6, Detective Tony Eng and Detective David Ogard used the apartment manager's key to unlock the door to Thornton's apartment. During the search of the apartment, Detective Ogard discovered Thornton's body inside the hall closet. Thornton was lying face up with her head " jammed against the door" and her feet " pressed up against the wall." Thornton was naked from the waist down and had dried blood on her forehead. Detectives Eng and Ogard contacted Homicide Detective Timothy DeVore and Detective Jeffrey Mudd, the Crime Scene Investigation Unit, and a pathologist from the King County Medical Examiner's Office.
[186 Wn.App. 756] [¶9] Seattle Police Department Crime Scene Investigation Unit Detective Kimberly Biggs testified there were no pry marks or signs of forced entry on the door or doorframe of the apartment. The police found a broken phone cord by the front door but the telephone was missing. The police did not find any keys to the apartment.
[¶10] Detective Mudd testified that the living room looked as though " there might have been some kind of struggle." The couch was " askew," and there was a broken picture frame on the floor. To the left of the couch was a beige extension cord with " bent prongs and suspected feces." The police found a pink bathrobe to the right of the couch with what appeared to be fecal stains. They found the belt to the bathrobe on the living room floor.
[¶11] The police also found feces on the living room floor, on a towel in the bathroom, and on pajama bottoms in the bedroom. They found underwear tangled up with blue tights, stained with feces, in the bathtub. The tights were partly inside out, as if " removed off a person at the same time [as the underwear] in one motion."
[¶12] King County Medical Examiner's Office Forensic Pathologist Dr. Timothy Williams examined Thornton's body at the apartment. The trail of dried blood from the abrasion on the right side of her nose ran across her forehead " in a direction against gravity" as compared to the position of the body in the closet. Dr. Williams testified the line of dried blood on her forehead was " consistent with the body having been moved at some point after that blood had started to run."
[¶13] Dr. Williams also observed " a number of abrasions on her neck" and " a large number of ... petechial hemorrhages, small pinpoint hemorrhages in the skin of the face." Dr. Williams testified that Thornton's face was " engorged with blood," creating the " distinct possibility" that she had [186 Wn.App. 757] been strangled. According to Dr. Williams, it is " very common" for a person to " evacuate their bowels" upon death.
[¶14] Dr. Williams estimated the time of death at 1:00 a.m. on December 30. A toxicology report later showed Thornton had a blood alcohol level of 0.07 grams per decaliter and her blood contained cocaine metabolites. Dr. Williams concluded the death was a homicide and the manner of death was asphyxia from strangulation.
[¶15] Seattle Police Department Latent Fingerprint Examiner Betty Newlin processed the apartment for latent prints. Washington State Patrol Crime Laboratory (WSPCL) Forensic Scientist Kari O'Neill obtained swabs from Thornton's body for
DNA testing. O'Neill later determined the DNA profile from the left and right nipples was " consistent with coming from the same unknown male individual."
[¶16] Initially, the police investigation focused on Thornton's ex-boyfriend Georgios Broutzakis. In June 2009, Broutzakis was convicted of assaulting Thornton and the court issued a no-contact order. The police interviewed Broutzakis on January 21.
[¶17] Broutzakis denied any involvement in Thornton's death and gave the police a DNA sample. Broutzakis acknowledged leaving nine of the saved voice mail messages on Thornton's phone, including several threatening messages. Five of the messages are from May 2009 and May 2010, and four of the messages are from August, October, and November 2010. The final three messages are not threatening. In the last three messages, Broutzakis tells Thornton he loves her, he is " trying to change," and he is going to go to " treatment." Broutzakis told police the last time he was in Thornton's apartment was in October 2010 and his last contact with her was the voice mail he left in November 2010.
[186 Wn.App. 758] [¶18] The DNA profile from Broutzakis did not match any of the evidence recovered from the apartment or Thornton's body. The police examined fingerprints from Broutzakis against " every print of comparison value." His fingerprints did not match any of the latent prints.
[¶19] Police reviewed hundreds of hours of video from the four security system cameras at the Vine Court Apartments for late December 2010 through early January 2011. The police did not see Broutzakis in any of the video from the four cameras. However, the cameras located at the main entry and lobby show a man, later identified as Gary Wade, entering and exiting the apartment building almost every night between December 22 and 29 and several times on December 30.
[¶20] The video shows Wade stayed overnight on December 25 and left at 5:42 a.m. on December 26. Wade next enters the building at 7:55 p.m. on December 29 and exits 13 minutes later. Thornton leaves the building through the alleyway door a few minutes later. The surveillance video shows Thornton and Wade enter the building together at 8:17 p.m. At 9:38 p.m., Thornton exits the building and, at 9:44 p.m., uses her key to get back inside.
[¶21] At 12:48 a.m. on December 30, Thornton leaves the building again and, at 1:01 a.m., lets herself back in with a key. At 2:26 a.m., Wade leaves the building but returns a minute later and uses the keypad to gain access. At 2:14 p.m., Wade leaves the apartment building with a bag slung over one shoulder and carrying a plastic grocery bag. When Wade returns at 4:09 p.m., he lets himself into the building with a key. The last time Wade appears on the surveillance video is when he leaves the apartment building approximately 10 minutes later at 4:20 p.m.
[¶22] Detective Randy Moore arrested Wade on February 26. During a lengthy interview, Wade admitted " provid[ing]" [186 Wn.App. 759] cocaine to Thornton in the past and smoking " crack" with her in her apartment on several occasions. At first, Wade maintained the last time he had been in Thornton's apartment was before Christmas. Wade told the detectives that he tried calling Thornton after Christmas but said she did not answer her phone.
[¶23] The detectives then showed Wade the time-stamped keypad entries and time-stamped photographs from the surveillance video that showed he entered and exited the building on December 29 and 30, and in the late afternoon of December 30, he used a key to enter the apartment building. In response, Wade said that he and Thornton had sex in the early morning hours of December 30 and Thornton gave him her key to " mak[e] a [drug] run." Wade told the detectives that at some point, Thornton " said she didn't feel good." Wade insisted he returned
the key to Thornton and she was still alive when he left. Wade also insisted that Thornton called him after he left on December 30 " because she need[ed] to see [him]."
[¶24] However, Wade later admitted placing Thornton in the closet after she had a heart attack. Wade said a neighbor knocked on the door, and he " panicked."
See okay when I seen her laid out right there, right. You could tell she had a heart attack. Just laid out. Then I panicked. But then I was about to leave and I grabbed my bag and was about to leave out. And then the neighbor knock on the door. So I got scared and put her nicely in the closet and closed the door and left.
[¶25] The police obtained a DNA sample from Wade. O'Neill compared the DNA to the fingernail clippings from Thornton, the belt from the pink bathrobe, and the beige extension cord. Wade's DNA matched the DNA profile of the unknown male O'Neill found on Thornton's body and the DNA found under Thornton's fingernails. Wade's fingerprints matched the latent prints found on beer cans in Thornton's apartment. Phone records for Wade and Thornton [186 Wn.App. 760] established that the last time he called Thornton was the evening of December 29, 2010. The State charged Wade with murder in the second degree.
[¶26] During the 13-day jury trial, more than 30 witnesses testified and the court admitted into evidence more than 100 exhibits, including surveillance video from the apartment building and time-stamped photographs from the video. The court also admitted into evidence and played the video of the police interview with Wade.
[¶27] Several of Thornton's friends, including Bollinger, testified that Wade supplied Thornton with cocaine and Wade was at her apartment on several different occasions. Bollinger testified that on at least four or five occasions, Wade was already there when he arrived.
[¶28] Bollinger also testified that Thornton was " outgoing to a fault" and often " would allow people to sleep over[night] in her living room that I wouldn't have chosen to allow to sleep over in my living room." Bollinger said that Wade " crashed" at Thornton's apartment " at least a few weeks" before Christmas 2010.
[¶29] Dr. Williams testified that Thornton died of asphyxia from strangulation. Dr. Williams stated that the " discontinuous nature of the abrasions" on Thornton's neck were more consistent with manual strangulation than ligature strangulation. Dr. Williams testified that with sufficient pressure " consistently applied," a person could be rendered unconscious within 10 to 15 seconds but it would take 1 to 2 minutes for asphyxia to occur. Dr. Williams estimated the time of death at around 1:00 a.m. on December 30.
[¶30] The State presented evidence establishing Thornton was not alive when Wade left her apartment the afternoon of December 30. In addition to the testimony that Thornton failed to show up for her scheduled 2:15 p.m. shift at Safeway, Detective DeVore testified that records from the Vine Courts Apartments door entry system show the last [186 Wn.App. 761] time Thornton granted access to the building for someone was at 2:27 a.m. on December 30, and the surveillance video confirms the last person Thornton " buzzed in" was Wade at 2:27 a.m. Detective DeVore also testified that the last outgoing phone call made from the apartment was at 3:00 a.m. on December 30 to an Internet dial-up company and that there were unanswered voice mail messages left on December 30 and 31. Detective David Dunn said that the last time anyone used Thornton's computer was at 4:12 a.m. on December 30. The State also presented evidence that the last activity on her KeyBank account was an ATM withdrawal on December 29.
[¶31] WSPCL Forensic Scientist O'Neill testified that in addition to the swabs from Thornton's body, she tested the beige extension cord, the belt from the pink bathrobe, and Thornton's fingernail clippings for DNA. O'Neill testified that DNA testing excluded Wade as a possible contributor to the DNA on the extension ...