Braa appeals from the superior court's order denying his
postconviction motion to conduct a DNA (deoxyribonucleic
acid) test of evidence in his case. Braa contends that the
superior court erred by reasoning that such testing is not
available in self-defense cases because a favorable test
result would not identify a different person as the
perpetrator of the crime. Braa also contends that the
superior court erred by denying his motion on the ground that
he did not show that a favorable DNA test result would, on a
more probable than not basis, establish his innocence.
conclude that the superior court erred by ruling that, in
effect, postconviction DNA testing is not available in
self-defense cases. However, we also conclude that the
superior court did not err by ruling that a favorable DNA
test result would not, on a more probable than not basis,
establish Braa's innocence.
we affirm the superior court's decision to deny the
circumstances of Braa's crime of conviction are set forth
in an unpublished opinion, State v. Braa. noted at
150 Wn.App. 1035, 2009 WL 1591369, as follows:
On the evening of November 11, 2006, Kevin Braa was sitting
at the bar reading a book in Kuhnle's Tavern in
Marysville. Simeon Whitney was there playing pool with his
brother, Roger Enick, and a friend, Kenny Celestine. Whitney,
Enick, and Celestine are Native American and went to
Kuhnle's Tavern because it is a hangout for Native
Enick and another bar patron argued over a game of pool, and
the other patron used racial slurs about Native Americans. At
some point, Braa went over to the pool table and made
offensive comments toward Enick. Whitney pushed Braa out of
the way and told him, "Leave my homeboy alone."
Braa told Whitney, "Go back to Mexico where you belong.
You're a sub-human." When the bartender heard this,
she told Braa that he would be asked to leave if he continued
to talk that way. Braa did not comply, so she escorted him to
the back door. A minute or two later, Whitney went out
through the same door.
A fight ensued between Whitney and Braa outside behind
Kuhnle's Tavern. Witnesses saw Whitney repeatedly punch
Braa and pull Braa's shirt up over his head. After the
fight, Whitney started toward the back door of Kuhnle's,
and Braa went over to his truck. Braa fired four to six shots
at or toward the back door. Some witnesses saw Braa standing
by his truck with the door open and his arm extended as he
fired. Whitney staggered through the back door and collapsed
by the bathrooms. When the bartender heard the gunshots and
saw Whitney on the floor, she ducked down and called 911. Two
witnesses saw Braa drive away in a white Chevy S-10 pickup.
A police officer who happened to be a few blocks away heard
the gunshots and responded to the scene. Whitney had a pulse
but was bleeding from the abdominal area and was
nonresponsive. He was airlifted to Harborview and died en
route. Later, an autopsy determined Whitney had suffered four
gunshot wounds. The wounds showed that the bullets traveled
from back to front through Whitney's body. One bullet and
fragments from another were recovered from his abdomen.
Another bullet exited through the front of his abdomen. The
cause of Whitney's death was shock, trauma, and loss of
blood due to the gunshot wounds.
Officers found bullet jacket fragments near where Whitney had
lain. There were shell casings in the parking lot, as well as
the book the defendant had been reading at the bar.
Detectives recovered three bullets and bullet shrapnel from
the back door area and the carpet just inside the back door.
There were two indentations in the metal of the back door,
which were consistent with bullet strikes. Detectives also
located a bullet hole in an interior wall just inside the
back door. Forensic analysis later confirmed that the bullet
taken from Whitney's abdominal wall and the bullet found
by the back door were fired from the same gun. The four shell
casings found in the parking lot were compared and it was
forensically determined that all had been fired from one gun.
Braa lived in a two-bedroom trailer that he shared with a
roommate, Lenny Graff. Braa returned home around 10:30 on the
night of the crime and asked Graff to get some beer, which
Graff did. Graff recalled that Braa looked like he had been
in a fight, with black eyes and a bloody nose. When Graff
returned with the beer, Braa had changed his clothes and no
longer looked dirty or bloody. Graff asked what had happened,
and Braa told him that he had "killed a subhuman."
When Graff asked what a subhuman was, Braa responded,
"It means if you're not white, you're not
right." He told Graff he had been jumped by some
Mexicans who wanted to steal his wallet. He refused to
discuss further the topic of killing someone and asked Graff
to lie and say he had been home all night.
That night, Braa parked his car several feet further from the
roadway than he usually did, and he did not move it for the
next three days. On November 14, 2006, officers arrived at
Braa's trailer to execute a search warrant and arrest
him. They could see Braa inside, through the kitchen window.
They announced their presence over the patrol car PA systems.
They also used a "hailer, " a box equipped with a
loudspeaker, a handle for throwing, and hundreds of feet of
cable, to communicate with Braa. Several times, an officer
announced, "Kevin Braa, this is the Sheriff's
Office. We have a warrant for your arrest. Identify yourself
and surrender, " but Braa did not come out. Officers
shone lights into the home, and a helicopter was also used to
illuminate the area. After Braa failed to respond to repeated
voice commands, officers deployed two pepper spray projectile
canisters through a window of the trailer. Braa came outside
a few seconds later, complied with officers' verbal
instructions, and was taken into custody.
Four and a half months later, while doing yard work, Graff
discovered a plastic garbage bag under the deck of the
trailer. Inside, he discovered Braa's 9mm semiautomatic
Ruger handgun. He called 911, and police picked up the gun.
Forensic analysis confirmed that the bullet extracted from
Whitney's abdominal wall had been fired from that weapon
and that one of the four spent shell casings found in the
parking lot had also been fired from that weapon. The other
bullets and casings were not analyzed because it had already
been determined that they had been fired from the same weapon
as the tested bullet and casing. An expert in trajectory
analysis testified that at least one bullet had been shot
from a height of about four and a half feet, within 10 feet
of where bullet fragments were imbedded in the wall inside
the tavern. The evidence was consistent with the trajectory
from a gun held by a person of average height while standing
At trial, Braa conceded that he shot the gun and argued that
it had been in self-defense. He testified that he had a
verbal exchange with some guys he thought were Mexican and
that he had called them "Mexicans" and
"sub-humans" and "invited them to go back to
their own country." He recalled that the bartender had
asked him to be quiet and go sit down, and he testified that
he did so. Shortly afterward, he left the bar through the
back door and as he was leaving was hit over the head and
lost consciousness. When he came to, he was being beaten by
an unknown assailant. He did not fight back but tried to
protect himself by curling up. He tried to get away but was
beaten more and shoved to the ground. He thought he was going
to be beaten until he was killed. After being slammed into a
vehicle, he got his gun out and fired immediately. He
testified that he was slumped, lying on the ground when he
Braa was charged with second degree murder and, in the
alternative, first degree manslaughter. The jury found Braa
guilty of the alternate charge of first degree manslaughter.
Braa. 2009 WL 1591369. at *1 -3.
years after his conviction, Braa filed a motion in the
superior court seeking DNA testing of a drop of blood taken
from the parking lot of the tavern on the night that Whitney
was shot. Braa argued that the DNA test would reveal hew
information suggesting that Whitney had bled in the parking
lot, thereby supporting Braa's trial defense that he had
shot Whitney in self-defense while Whitney was standing in
close proximity over him.
superior court denied the motion on two separate grounds. The
superior court first concluded that Braa failed to satisfy
the DNA testing statute's requirement that the petitioner
show that DNA testing is material to the identity of the
perpetrator of the crime. This was so, the superior court
concluded, because "the identity of the shooter (the
defendant) is undisputed." The superior court also
concluded that Braa's motion failed to establish that
"favorable DNA evidence, when considered along with all
of the other evidence, would not demonstrate his innocence on
a more probable than not basis."
contends that the superior court erred by denying his
postconviction motion to conduct a DNA test of the blood
review the superior court's decision on such a motion for
abuse of discretion. State v. Crumpton, 181 Wn.2d
252, 257, 332 P.3d 448 (2014) (citing State v.
Riofta. 166 Wn.2d 358, 370, 209 P.3d 467 (2009)). The
superior court "abuses its discretion if the decision
rests on facts unsupported in the record or was reached by
applying the wrong legal standard." Crumpton.
181 Wn.2d at 257 (citing State v. Rafay. 167 Wn.2d
644, 655, 222 P.3d 86 (2009)).
10.73.170 provides a mechanism under Washington law for
individuals to seek DNA testing in order to establish their
innocence." Crumpton. 181 ...