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State v. Arndt

Supreme Court of Washington, En Banc

December 5, 2019

STATE OF WASHINGTON, Respondent,
v.
SHELLY MARGARET ARNDT, Petitioner.

          STEPHENS, J.

         After an extensive trial, a jury convicted Shelly Arndt on charges including aggravated first degree murder and first degree arson, and she received a sentence of life without the possibility of parole. Arndt appealed, arguing that her Sixth Amendment right to present a defense and her right to be free from double jeopardy were violated. U.S. Const, amends. VI, V. The Court of Appeals affirmed Arndt's conviction and sentence in an unpublished, divided opinion.[1] State v. Arndt, No. 48525-7-II, slip op. at 37 (Wash.Ct.App. Dec. 12, 2017) (unpublished), http://www. courts.wa.gov/opinions/pdf/D2%2048525-7-II%20 Unpublished%20Opinion.pdf.

         We affirm. After a careful review of the record, we conclude that the trial court's rulings limiting the testimony of Arndt's expert witness did not violate Arndt's Sixth Amendment right to present a defense and were well within the court's discretion. We further conclude that Arndt's convictions for both first degree aggravated murder and first degree arson do not violate double jeopardy protections, as our precedent is clear that when two crimes have separate purposes and effects, multiple punishments are allowed.

         FACTS AND PROCEDURAL HISTORY

         On February 23, 2014, a fire broke out in a two-story house that belonged to Kelly O'Neil and her husband. At the time of the fire, there were eight people inside the home: Kelly O'Neil, Shelly Arndt, Darcy Veeder Jr., Donald Thomas, O'Neil's adult daughter Autumn Kriefels, and three children. Everyone except Veeder was able to escape the fire. Veeder succumbed to smoke inhalation and died inside the residence.

         The O'Neil home was heated by a wood stove on the main floor. Downstairs in the split-entry home there was a gas insert fireplace and baseboard heating, but the power and gas to both were turned off. A vent between the upstairs and downstairs was located near the wood stove. On the night of the fire, Arndt, Veeder, and Thomas were the last occupants awake, and they fell asleep on couches in the upstairs living room. O'Neil, Kriefels, and the children were sleeping in various bedrooms.

         Arndt testified that she woke to the smell of smoke and immediately woke Thomas up to tell him that she smelled something. She also woke O'Neil, who described a smell like burning tires and said she saw an orange glow coming from the living room side of the downstairs area. O'Neil collected the three minor children and ran outside. Upon realizing that Kriefels was still inside the home, O'Neil ran back with Arndt to get Kriefels from her room. The house was engulfed in flames within 30-45 seconds after they reached the driveway. Eventually, the fire department arrived to control the fire. Veeder's body was found in the living room on the second floor of the home.

         After the fire department completed its work, the scene was turned over to Kitsap County Fire Marshal David Lynam for investigation. The details of Lynam's testimony, as well as the testimony of an insurance company investigator and two experts retained for trial, are a major focus in this appeal and are discussed below. During the course of the investigation, suspicion fell on Arndt, who had prior arson charges.[2]

         The State charged Arndt with several crimes. First, it charged her with aggravated first degree murder under RCW 9A.32.030(1)(a) and RCW 10.95.020 with the aggravating circumstance of first degree arson under RCW 10.95.020(11). It also made special allegations of domestic violence under RCW 10.99.020 and alleged an aggravating circumstance allowing for departure from the sentencing guidelines under RCW 9.94A.535(3)(b), alleging the victim was a particularly vulnerable person. Second, it alternatively charged her with first degree murder (felony murder) under RCW 9A.32.030(1)(c), again with special allegations of domestic violence and a particularly vulnerable person aggravating circumstance. Third, the State charged her with first degree arson under RCW 9A.48.020 with special allegations of domestic violence and a particularly vulnerable person aggravating circumstance. Finally, it charged her with six counts of second degree assault under RCW 9A.36.021, two of which included special allegations of domestic violence.

         Fire Investigation Testimony

         The fire scene was analyzed by four investigators, including Fire Marshall Lynam. See Am. Pet. for Review at 2-5. Because this case is, in large part, concerned with the defense expert's adherence to proper investigatory procedures compared with the other investigations Conducted, a brief overview of the individual investigators' work is necessary.

         Fire Marshal David Lynam

         Kitsap County Fire Marshal David Lynam is charged with investigating the origin, cause, and circumstances of fires within Kitsap County. 14 Verbatim Report of Proceedings (VRP) (Oct. 26, 2015) at 2594. As the prosecution's chief expert witness, Lynam testified to his qualifications and how he conducts all of his investigations in accordance with National Fire Protection Association 921 (NFPA 92l).[3] See id. at 2586-99. In addition to following the guidance in NFPA 921, Lynam testified:

The approach I have adopted and instructed all my deputies we adopt, is . . . [your work] typically goes from the outside in, you want to evaluate the whole scene and condition that you have, and you are working from areas of least damage to most damage.

Id. at 2599. As the public official who takes charge of the fire scene immediately after the fire department, Lynam has the authority to exclude all private investigators until his investigation is complete. Id. at 2595.

         Lynam's investigation and resulting conclusions were challenged extensively by the defendant's expert witness, Dale Mann. Because these conclusions are discussed in depth relating to various evidentiary rulings, they will not be detailed at this time. In summary, Lynam concluded that the fire started when someone ignited a beanbag chair near a couch in the house's basement. Am. Pet. for Review at 2; 15 VRP (Oct. 27, 2015) at 2922-23.

         Ed Iskra

         Ed Iskra was under contract with Allstate Insurance and was tasked with determining the origin and cause of the O'Neil residential fire to preserve the right of Allstate to proceed against any defective appliance manufacturer. 9 VRP (Oct. 15, 2015) at 1552. Based on the results of his investigation, Iskra testified for the prosecution.

         On direct examination, Iskra described the procedures that he followed:

I follow a systematic approach to my investigation. So I go out and do the exterior, the interior, and from the inspection, if there's specific things that may be-that might be a cost factor for the-besides my initial investigation, for the insurance company, I call my claims adjuster and tell them what I have and [w]ould you like me to do certain things; yes or no?

Id. at 1554. As a first step in his investigation, Iskra called Lynam to determine if Lynam had released the scene. He also testified that he spoke with both of the O'Neils to get a sense of the activities that occurred before and during the fire (e.g., what electrical devices were plugged in, etc.). Iskra testified how his standard procedure is to conduct his own investigation independent of any prior conclusions.

         Initially, because Lynam had not released the scene, Iskra conducted an investigation of the exterior of the house, examined the locations where the fire vented from the house, examined the resulting debris pile, and took photographs. He detailed how his initial hypothesis, based on witness statements and exterior burn patterns, led him to believe that the fire started on the outside deck. This hypothesis was later disproved once he was able to gain access to the interior of the home a few days later. Id. at 1560-61.

         Iskra next detailed the systematic approach that he utilizes for examining the interior of a fire scene:

I usually start from the front door, if that is accessible, sometimes it's not and I've got to go in the back door, but I will go in-into the interior of the home and go to what I determine the least area of damage and start my internal examination of the home from there and work to the most damage.

Id. at 1569. Using this approach, Iskra described his examination of the interior of the house in detail. He discussed the possibility that the scene went to "flashover"[4]and reviewed the relevant training he had received to make a "flashover" determination. Id. at 1569-1631.

         Finally, Iskra discussed his need to rely on the reports and documentation of other fire investigators because fire scenes are sometimes altered, e.g., from digging or the removal of electrical components, in the process of other investigations. Here, Iskra initially characterized the cause of the fire as "undetermined," due to "alterations of the scene and evidence being removed." Id. at 1633. After reviewing Fire Marshall Lynam's "documentation, data, [and] evidence," to supplement what he examined at the scene, Iskra changed his determination to "intentionally set." Id. at 1635. He examined Lynam's reports and documentation detailing how the fire was "dug out," and concluded that "[i]t was more likely than not that a fire was started with a handheld devi[c]e to combustible materials." Id. at 1636.

         Ken Rice

         Ken Rice is a senior fire investigator for CASE Forensics who conducted a technical review of Lynam's investigation. CASE Forensics is a privately held forensic engineering firm that conducts failure analysis in multiple disciplines of engineering. Rice testified for the prosecution concerning the requirements of NFPA 921 and the scientific method. The first portion of Rice's testimony focused on the conduct of fire investigations generally and the definition of different concepts related to the field.

         Rice testified about the methodology he used to conduct his technical review, including examination of all reports and photographs furnished to him. 10 VRP (Oct. 19, 2015) at 1894. Specifically, Rice reviewed the reports of defense expert Mann and Fire Marshal Lynam. Rice discussed his review of the scene, via the photographs he had received, in detail. Upon conclusion of his initial review, Rice recommended that Lynam conduct additional testing due to his concern that an ember may have traveled out of the upstairs fireplace, down a'floor vent, and ignited a combustible material on the lower level. Rice and Lynam performed these additional tests and concluded that it was not probable that an ember escaped the fireplace and caused the house fire.

         Additionally, as part of his technical review, Rice performed testing "to see what smoke passage would look like in the upstairs room coming from the downstairs through the vent." 13 VRP (Oct. 22, 2015) at 2383-84. Based on the results of this testing, Rice was able to conclude, on a more probable than not basis, that the fire did not occur directly below the vent. Rice also performed a furniture ignition test and concluded that "it was very probable that something was ignited on the left side of the sofa, caused the sofa to ignite, and caused the fire to spread from left to right." Id. at 2386, 2402.

         Based on his technical review and testing, Rice concluded that the fire was incendiary in nature and that the area of origin was the "left side of the sofa near the floor level." Id. at 2406-27.

         Dale Mann

         Arndt retained Mann to review the fire investigation. Am. Pet. for Review at 4. Mann is a former state patrol crime lab supervisor and certified arson investigator. During his review, Mann examined all available materials, including Lynam's reports, photos and other documents, police reports, coroner's reports, and firefighter reports. Whether Mann adhered to acceptable investigation methods contained in NFPA 921 became the primary issue in determining the admissibility of his testimony.

         Mann's testimony primarily challenged Lynam's determinations of the cause and origin of the fire. Id. at 5. Due to the nature of his investigation, the trial court limited Mann's testimony in a variety of ways, and he was unable to present his opinion that the fire should have been classified as "undetermined" rather than "incendiary." Id. These evidentiary rulings form the basis of one of the central issues in this appeal. For this reason, like Lynam's conclusions, they are analyzed in greater detail below.

         Trial and Appeal

         After a three month trial, a jury found Arndt guilty of all crimes as charged by the State. Clerk's Papers (CP) at 430-32, 433-41, 472-73. The trial court sentenced Arndt to life without the possibility of parole per RCW 10.95.030(1). CP at 475.

         The Court of Appeals affirmed Arndt's conviction and sentence. Arndt, slip op. at 37. The court found no error with respect to most of the trial court's limitations on Mann's testimony but held that the trial court wrongly excluded Mann's testimony about his review of the police reports. Id. at 1. However, it found this error harmless and held that Arndt was not denied her Sixth Amendment right to present a defense. Id. Acting Chief Judge Bradley Maxa dissented on this issue. Id. at 38. As for Arndt's challenge to her convictions for both aggravated first degree murder with a first degree arson aggravator and first degree arson, the Court of Appeals found no double jeopardy violation, concluding that the two crimes are not the same in fact or law. Id. at 1. After deferring consideration of Arndt's petition for review for almost a year, pending State v. Allen, 192 Wn.2d 526, 431 P.3d 117 (2018), this court granted review. State v. Arndt, 193 Wn.2d 1001 (2019).

         ANALYSIS

         A. The Trial Court Acted within Its Discretion and Did Not Violate Arndt's Sixth Amendment Right To Present a Defense by Limiting Her Expert Witness's Testimony

         Arndt argues that the trial court violated her constitutional right to present a defense. Whether a Sixth Amendment right has been abridged presents a legal question that is reviewed de novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010). However, the trial court's evidentiary rulings under ER 702 remain subject to abuse of discretion review. State v. Yates, 161 Wn.2d 714, 762, 168 P.3d 359 (2007).

         While Arndt asks this court to "unequivocally hold that violations of the right to present a defense are reviewed de novo, with no deference to the trial court's decision to exclude evidence," Am. Pet. for Review at 10, we recently adhered to a two-step standard of review in State v. Clark, 187 Wn.2d 641, 648-56, 389 P.3d 462 (2017) (abuse of discretion review of evidentiary rulings and de novo review of whether such rulings violated the defendant's right to present a defense). Here, as in Clark, we apply this two-step review process to review the trial court's individual evidentiary rulings for an abuse of discretion and to consider de novo the constitutional question of whether these rulings deprived Arndt of her Sixth Amendment right to present a defense.

         Review of Evidentiary Rulings for Abuse of Discretion

         In Washington, expert testimony must satisfy both the Frye[5] test and ER 702.[6] State v. Copeland, 130 Wn.2d 244, 256, 922 P.2d 1304 (1996). While Frye concerns the use of novel scientific methodology and guards against the admission of new techniques until a "scientific consensus decides the methodology is reliable," Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 918-19, 296 P.3d 860 (2013), ER 702 concerns the use of existing scientific rriethodology and excludes testimony "where the expert fails to adhere to that reliable methodology." Id. Admissibility decisions under ER 702 are reviewed for abuse of discretion. Yates, 161 Wn.2d at 762.

         Aradt takes issue with the limitations the trial judge placed on Mann's testimony due to the fact that he had not personally conducted a complete origin and cause investigation of the scene. Am. Pet. for Review at 5. In placing these limitations on Mann's testimony, the judge clearly stated that her rationale was based on Mann's failure to follow well established scientific methodology:

THE COURT: It is not a problem that he goes to the scene, as [the] defense argues, but it is a problem when he starts to test.. ..
If he were to do an origin and cause, he would need to follow the scientific method and eliminate various hypotheses.
Instead by focusing on one area, which seems to be this foosball area, he's taking one hypothesis and testing it. And not eliminating, under the scientific method, the entire scene.

19 VRP (Nov. 12, 2015) at 3650-51. None of the limitations placed on Mann's testimony concerned the use of a novel scientific method with dubious credibility. Instead, all objections to the exclusion of expert testimony centered on whether the expert properly adhered to existing acceptable methodology. Such decisions fall under ER 702 and are properly reviewed for abuse of discretion. Yates, 161 Wn.2d at 762; Clark, 187 Wn.2d at 648.

         Expert testimony is admitted under ER 702 when the trial court determines (1) that the witness qualifies as an expert and (2) that the testimony will assist the trier of fact. In re Det. of McGary, 175 Wn.App. 328, 338-39, 306P.3d 1005 (2013). Trial courts are given a large degree of freedom when making these determinations, subject to reversal only for a clear abuse of discretion. Yates, 161 Wn.2d at 762. "A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons." State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). Specifically, an abuse of discretion can be found when the trial court "relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." Id. at 284. Because unreliable testimony does not assist the trier of fact, it is properly excluded under ER 702. Lackey, 176 Wn.2d at 918. In our review for abuse of discretion, we may affirm the trial court on any basis that the record supports, including any theories "established by the pleadings and supported by the proof," even if these theories were not originally considered by the trial court. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).

         Due to the highly fact-specific nature of the analysis required to determine if the trial court abused its discretion, what follows is an individual discussion on each category of exclusions/restrictions placed on Mann's testimony. After reviewing these exclusions individually, it becomes clear that the trial judge took issue with the method Mann used to analyze the particular issues, not the fact that he selected particular issues to investigate. On multiple occasions, the judge and counsel had extensive discussions about Mann's adherence to accepted procedures and resulting admissibility concerns. Because all of the trial judge's exclusion decisions were supported by tenable reasons and based on correct statements of the law, we hold that the trial court did not abuse its discretion in limiting the scope of Mann's testimony.

         1. Opening the Door

         Arndt argues that the trial court erred when it "excluded Mann's opinion that the fire should be classified as undetermined (rather than incendiary)." Am. Pet. for Review at 6. Initially, Arndt argued that the State "opened the door" to Mann's testimony challenging Lynam's conclusions about the fire's origin and cause:

MR. LaCROSS: They had witnesses testify that-expert witnesses that Mr. Lynam did this investigation perfectly. It was a good investigation. They opened the door for whether or not this investigation was done properly. And that's what Mr. Mann is here to testify, that it wasn't done properly.

18 VRP (Nov. 10, 2015) at 3411-12. The trial court dialogue then centered around whether Mann conducted a proper origin and cause investigation in accordance with the scientific method or whether he simply reviewed Lynam's investigation. See id. at 3411-13, 3524-38. The State objected to Mann's testimony regarding the origin of the fire:

So we would object-if what he did was simply a review in this case, we would object to any-and didn't do an origin and cause determination, we would object to any picture that he took, any testimony about layering, any testimony about any of the scene investigations that he did. And we'd ask that he be allowed only to testify about his review of Fire Marshal Lynam's work.

Id. at 3525. In response to this objection, the trial court attempted to determine the exact nature of Mann's testimony:

THE COURT: If he's going to say where the fire started, does he not have to present a methodology for how and where it started?
MR. LaCROSS: As he has-he used the scientific method to determine where the origin was, yes, the area.
THE COURT: So he went through a whole analysis of hypotheses and eliminated them one at a time, and is that written up in the report?
MR. LaCROSS: No.
THE COURT: That is the scientific method, is it not?
MR. LaCROSS: Not for what he did. He did an evaluation, a critique of what the Fire Marshal did. ... It doesn't mean that he did an origin and cause investigation....
THE COURT: My worry, Mr. LaCross, is that, as we've been arguing this much of this day, you have repeatedly told me this is not an origin and cause.
MR. LaCROSS: I still say that. It is not an origin and cause determination.
THE COURT: But he's effectively eliminating and deciding whether or not what the origin and cause was.
If he's saying it is in a certain area of the house, and if he's going through and effectively double testing what's already been done by the Fire Marshal, isn't he effectively-isn't he ...

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