DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 23406-8-II
Title of Case: State of Washington, Respondent
v.
Dennis Keith Smith, Appellant
File Date: 05/26/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Clark County
Docket No: 96-1-00957-1
Judgment or order under review
Date filed: 06/03/1998
Judge signing: Hon. Barbara D. Johnson
JUDGES
------
Authored by Carroll C. Bridgewater
Concurring: J. Dean Morgan
Elaine M. Houghton
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
R. A. Lewis
Knapp O'Dell & Lewis
430 NE Everett
Camas, WA 98607
Diane M. Woolard
Morse & Bratt
1111 Main St. 6th Fl
P.O. Box 61566
Vancouver, WA 98666
Counsel for Respondent(s)
David J. Seeley
Clark Co Prosecutors Offc
PO Box 5000
Vancouver, WA 98666-5000
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 23406-8-II
Respondent,
v.
DENNIS KEITH SMITH, UNPUBLISHED OPINION
Appellant. Filed:
BRIDGEWATER, C.J. Dennis Keith Smith appeals his conviction for aggravated
first degree murder and first degree felony murder.
We generally uphold the evidentiary rulings by the trial court.
Specifically, we hold that the trial court properly admitted the evidence
of Smith's prior murder conviction, his statements to a cellmate about
disposal of a body, and his flight and violent confrontation with arresting
authorities. The admission of evidence of mitochondrial DNA (mtDNA), if
error, was harmless because evidence of nuclear DNA showed that the victim
could not have been excluded as the donor of blood stains found on Smith's
watch and in his truck.
We reverse the special verdict with the aggravating factors and the felony
murder conviction because of insufficient evidence of rape, attempted rape,
and kidnapping. Also, we agree with the trial court that the State's
closing argument was objectionable. The prosecutorial misconduct appealed
to the passions of the jury, but Smith objected to it and the court
sustained the objection. Smith did not request a curative instruction and
later used the prejudicial remarks in his closing. Neither a mistrial, new
trial, nor a reversal is warranted because Smith has not shown that there
was a substantial likelihood that the remarks affected the jury's decision.
We hold that there is sufficient evidence of premeditated murder, and thus
the conviction for first degree murder is valid with the sentencing
provisions imposed by the trial court for restitution, costs and attorney
fees. We affirm in part, reverse in part, and remand for resentencing.
On November 11, 1995, Carolyn Killaby went to the bar in Omar's
Restaurant and Steak House. She sat alone, appeared intoxicated, and
danced with two or three men at the bar. Dennis Smith, the defendant,
watched Killaby for a couple of hours. Smith, a regular at the bar,
pointed out Killaby to the bouncer and talked about her. Later in the
evening, Killaby was visibly intoxicated, had her head down, and was unable
to walk without assistance. Then, sometime between 10:00 p.m. and
midnight, Smith approached Killaby from behind, spoke to her briefly, put
his arm around her and assisted her out of the bar to the parking lot. At
that time, Killaby was too drunk to stand up or walk on her own, and she
left her purse in the bar. When the bouncer took her purse outside and
gave it to Smith, she still needed help to walk and appeared drunk and
limp. Killaby has not been seen since that night. Nationwide efforts to
locate her have been unsuccessful.
At 11:52 p.m. and 11:57 p.m. on November 11, 1995, two separate
callers reported hearing a woman's screams for help coming from an open
field near a housing development at the Five Corners in Orchards, which is
just north of Omar's. The callers described the screams as a very loud,
distinct, woman's voice screaming for help, and they said that the woman
sounded panicked and terrified. Police responded but were unable to find
anything.
At approximately 1:30 a.m. that same night, Smith was seen alone in
the 7-11 store at the Five Corners in Orchards. He had his hand wrapped in
a bloody rag or shirt and had what appeared to be blood smeared on the
right side of his white dress shirt. Smith told the clerks at the 7-11
store that he had been in a fight at a bar.
The next day Smith went to a Sunday dinner at Omar's hosted for
regulars and certain employees. He appeared nervous, agitated, and uneasy.
He told the bar's bouncer, 'I told you that woman was going to be trouble.'
He also told an acquaintance, Boyd Kilgore, about having sex with Killaby.
Smith also told Kilgore, the bouncer, and the bartender that a stranger had
approached them while they sat in Omar's parking lot, called Killaby a
bitch and dragged her from Smith's truck. Smith stated that he tried to
intercede but that the stranger struck him with a stick. Smith said he
punched the stranger, then jumped in his truck and drove away. Smith had
not reported this incident to the police. While Smith was at Omar's for
the Sunday dinner, Kilgore looked in Smith's truck out of curiosity and
described it as undamaged.
Omar's employees learned that Killaby was missing on Monday, November
13, 1995, when her car was found parked in front of the bar. They promptly
identified Smith, one of their regulars, as the last person seen with
Killaby on Saturday night. One of the employees contacted Smith and told
him that the woman he had left Omar's with was missing and that he needed
to call the police. Shortly after this employee spoke with Smith, the
inside of Smith's truck was damaged as a result of a fire, which Smith
attributed to a dropped cigarette.
On Wednesday, November 15, the police located Smith at his work and
briefly inspected his truck. They observed a large burn hole in the bench
seat. The interior carpets and upholstery were in place and appeared
clean. Smith agreed that his truck could be examined later by crime
technicians to confirm that the woman who had been in his truck was
Killaby.
After this contact with the police, Smith cleaned and drastically
altered the inside of his truck that same day. Smith went to his friend
Shawn Varela's house, and she noticed that the truck's interior carpet had
been ripped out. Smith told Varela that he had used Lysol and Pine-Sol
inside the truck and asked whether she thought that would ruin DNA. Later
that day, Tammy Ross, another friend, saw Smith's truck when he drove into
a gas station. She stated that all of the interior truck carpet was gone.
Smith asked Ross if he could take the truck to her parents' home and wash
it because '{h}e didn't want the police to know he'd been off-road with the
truck.'
Then, Smith turned in his truck to the police. Smith spoke with
Varela and her friend Johnna Glenn, a nursing student, about his concern
that the police were interested in him and that Killaby's blood or DNA
could be discovered in his truck.
Sheriff's deputies took possession of the truck on November 16, 1995.
Detective Jane Scott observed that the carpet and upholstery were missing,
that there was fire damage to the remaining foam on the bench seat, and
that the truck had been cleaned. After the Clark County Sheriff's Office
examined the fire damage inside the truck, Detective Scott contacted Dr.
Etling, a chemist specializing in arson investigations. Dr. Etling
conducted field tests on Smith's truck and concluded that a cigarette could
not have caused the fire damage noted in Smith's truck.
During the police investigation, Detective Scott used phenolpthalein
and found that blood was presumptively present on the steering wheel and
door handle of Smith's truck and on the watch that Smith had been wearing
the night Killaby disappeared. These presumptively blood-stained items
were sent to Forensic Science Associates in Richmond, California, along
with control and comparison DNA samples taken from Smith, Killaby, her
daughter, and her mother. In a report on June 19, 1996, Dr. Blake from the
Forensic Science Associates stated that the stains recovered from the
steering wheel of Smith's truck and watch were consistent with the
reconstructed nuclear DNA profile of Killaby. Dr. Blake later stated that
Killaby's nuclear DNA was uncommon and that less than one in 100,000 people
would match her DNA type. He recommended that the materials be submitted
to Dr. Mark Stoneking for mitochondrial DNA (mtDNA) analysis at Stoneking's
laboratory at Pennsylvania State University.
On July 12, 1996, after Blake's report was received, an Information
was filed and an arrest warrant issued for Smith. On February 4, 1997,
Smith was apprehended in New Smyrna Beach, Florida after a violent struggle
that ended when an officer shot Smith.
The jury convicted Smith of one count of aggravated murder and one
count of first degree felony murder. Smith was sentenced to life in prison
without the possibility of parole.
I. EVIDENCE
A. Analysis of Mitochondrial DNA (mtDNA)
Smith argues that the trial court erred in admitting expert testimony
concerning mtDNA evidence under the Frye standard and ER 702. See Frye v.
United States, 293 F. 1013, 34 A.L.R. 145 (D.C. 1923). Specifically, Smith
challenges: (1) the method, frequency statistics, and database used with
mtDNA matches; (2) the use of Killaby's daughter's mtDNA alone to represent
Killaby's mtDNA; and (3) the use of an unaccredited laboratory with
insufficient proficiency testing.
Smith does not challenge the admissibility of the nuclear DNA results
on appeal. Those results showed that Killaby's nuclear DNA was uncommon
and could not be excluded and that the frequency of a match with her
nuclear DNA type was less than one in 100,000 individuals.
In this case, the State offered mtDNA evidence through two experts who
testified regarding a comparison of mtDNA from Killaby's daughter with
mtDNA from the blood in Smith's truck and watch. These experts testified
that the mtDNA analysis showed that Killaby could not be excluded as the
source of these blood samples and that Killaby's mtDNA was consistent with
the mtDNA from these blood samples.
The admissibility of mtDNA, unlike nuclear DNA, is an issue of first
impression in Washington. In addressing Smith's arguments, it is helpful
to briefly discuss the differences between mtDNA and nuclear DNA.
Mitochondrial DNA is found in mitochondria, which are microscopic
particles found inside the cell but outside the nucleus. Nuclear DNA is
found in the nucleus. Although nuclear DNA contains genetic material
inherited from both the mother and the father, mtDNA contains genetic
material inherited only from the mother. Thus, a mother, siblings, and
children will have the same mtDNA. One advantage of mtDNA is that there
are many more copies of mtDNA in each cell than there are copies of nuclear
DNA because each cell contains many mitochondria but only one nucleus.
Another advantage of mtDNA is that it is much more stable than nuclear DNA;
therefore, the chances of extracting mtDNA from a degraded sample is
increased. Further, unlike nuclear DNA, mtDNA is present in dead cells
such as shafts of hair and bone. National Council Research: Evaluation of
Forensic DNA evidence, 1996 at 72; Brian Huseman, 'Taylor v. State, Rule
706, and the DNA Database: Future Directions in DNA Evidence' 22 Okla. City
U. L. Rev. 397 (1997). The comparisons in this case were made between
samples from Killaby's daughter and the samples from Smith's truck and
watch. The experts testified that Killaby could not be excluded from the
group of persons who could have given those samples.
This court determines the admissibility of scientific evidence, such
as this mtDNA analysis, using a two-part inquiry. State v. Janes, 121
Wn.2d 220, 232, 850 P.2d 495, 22 A.L.R.5th 921 (1993). First, the proposed
testimony must meet the standard for admissibility under Frye, 293 F. 1013.
Janes, 121 Wn.2d at 232; State v. Kunze, 97 Wn. App. 832, 852-853, 988 P.2d
977 (1999). Second, the testimony must be admissible under ER 702. Janes,
121 Wn.2d at 232. In this case, the trial court held the proffered
testimony on mtDNA met both standards. Our review of admissibility under
Frye is de novo. State v. Copeland, 130 Wn.2d 244, 255, 922 P.2d 1304
(1996). Our review of admissibility under ER 702 is for an abuse of
discretion. State v. Cauthron, 120 Wn.2d 879, 887, 846 P.2d 502 (1993).
Further, the admissibility of nuclear DNA has been accepted by our Supreme
Court, see Cauthron, 120 Wn.2d 879, and is not contested by Smith. He only
contests the admissibility of the mtDNA analysis.
Smith's specific objection to the admission of the mtDNA evidence is
that there is no reliable evidence on the frequency of Killaby's genotype
in the general population. Without this, Smith contends that the 'match'
between the blood samples and Killaby is meaningless and not helpful to the
jury. Smith may be correct, but we need not address the argument. The
mtDNA evidence was used only to show that Killaby's mtDNA was 'consistent'
with the mtDNA in the blood samples from Smith's truck and watch. Assuming
that it was error to base an opinion on this evidence, all it could have
done was duplicate the testimony about the presence of DNA in Smith's truck
and on his watch and the comparison of matches using the generally accepted
nuclear DNA approach. Because the mtDNA merely duplicated the nuclear DNA
evidence, any error was harmless, and we need not address admissibility.
B. Discovery Request for the Raw Data from the Nuclear DNA and the mtDNA
Databases
Smith argues that the trial court should have given his experts the
opportunity to review all of the raw data underlying both the nuclear DNA
and mtDNA databases.
The scope of discovery in a criminal case is within the sound
discretion of the trial court and will not be disturbed absent a manifest
abuse of that discretion. State v. Pawlyk, 115 Wn.2d 457, 470-71, 800 P.2d
338 (1990). In this case, because the raw data was not in the State's
control, Smith's request had to meet the requirements of CrR 4.7(e)(1).
See CrR 4.7(a)(1); CrR 4.7(a)(4); see also State v. Norby, 122 Wn.2d 258,
266-67, 858 P.2d 210 (1993). This rule provides that a discovery request
must meet two threshold requirements (1) the information sought must be
material and (2) the discovery request must be reasonable. Norby, 122
Wn.2d at 266; CrR 4.7(e)(1).
Here, Smith did not establish that the raw data from these two
databases was material to his defense. Smith did not cite any authority to
support his claim that the raw data was critical to his defense. Although
Smith generally cites Copeland, 130 Wn.2d 244, and Cauthron,120 Wn.2d 879,
neither case supports the position that the State should be required in
discovery to give defendants raw data from a DNA database. Further, the
State claims its experts did not have access to the raw data but, instead,
used the same summary DNA database material that Smith was given.
Moreover, Smith did not establish that his request was reasonable. He
had the raw data in summary form on disk. The raw data supporting the DNA
databases was voluminous, contained thousands of samples, and was located
in several different laboratories. The State clarified the difficulty of
Smith's request with two experts, Dr. Blake and Dr. Stoneking. According
to the testimony of these experts, Smith's request was unreasonable because
of its timing, and because no practical plan or procedure was presented to
demonstrate how it would occur.
Because Smith did not establish the materiality or the reasonableness
of his discovery request, the trial court did not abuse its discretion when
it denied this request.
C. Evidence of Smith's Admissions to Cellmate, Previous Murder
Conviction, and Flight
Smith contends that the trial court erred in admitting his admissions
made to a cellmate, his prior murder conviction, and the violence involved
in his arrest as evidence under ER 404(b). 1. Statement to Cellmate:
The trial court admitted statements Smith made to his cellmate, Anthony
Rodrigues, while he was in jail on a parole matter, as admissions of a
party opponent. Smith contends, without much argument, that his
hypothetical discussion with Rodrigues about the destruction of evidence
was not relevant to Killaby's disappearance months later.
The State submits this evidence is relevant and properly cites State
v. Majors, 82 Wn. App. 843, 850, 919 P.2d 1258 (1996), review denied, 130
Wn.2d 1024 (1997), which held that a prior general statement of intent was
relevant to the issue of the defendant's intent. In Majors, approximately
one month before the charged incident, the defendant told his girlfriend
that he intended to find a girl walking along the road, force her into the
car, and make her submit to anal sex. Majors, 82 Wn. App. at 849-850. The
trial court admitted this statement as relevant evidence of the defendant's
intent to commit a sexual offense against the victim.
Here, Smith's cellmate testified that while watching a documentary on
the Waco siege, Smith told him 'if he was ever in a position where he had
to dispose of human body remains that he would dig a hole and plant a tree
over the top of it so as to make it appear as if the area had been
naturally disturbed.' Then, 'he would destroy any other associated
evidence by fire.'
Like the court in Majors, we hold that the evidence was relevant to
the issue of Smith's intent and concealment, and that the trial court did
not abuse its discretion in admitting it.
2. Prior Murder: Evidence that the defendant has committed other
crimes or bad acts is admissible if relevant for a purpose other than to
prove the defendant's propensity to commit the crime and if its probative
value is not substantially outweighed by its prejudicial impact. ER 404(b);1
ER 403; see State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
Specifically, to admit evidence of other crimes under ER 404(b), the trial
court 'must (1) identify the purpose for which the evidence is sought to be
introduced, (2) determine whether the evidence is relevant to prove an
element of the crime charged and (3) weigh the probative value of the
evidence against its prejudicial effect.' State v. Lough, 125 Wn.2d 847,
853, 889 P.2d 487 (1995). Further, to avoid error, the trial court must
identify the purpose of the evidence and conduct the balancing on the
record. State v. Jackson, 102 Wn.2d 689, 693-94, 689 P.2d 76 (1984). A
trial court's decision as to the admissibility of evidence is reviewed
under an abuse of discretion standard. State v. Stenson, 132 Wn.2d 668,
701, 940 P.2d 1239 (1997), cert. denied, 823 U.S. 1008 (1998).
In this case, Smith stipulated to the admissibility of his parole
status at the time of Killaby's disappearance and its potential consequence
in terms of imprisonment, but objected to the admissibility of the facts
surrounding the crime for which he was on parole. The trial court
identified several purposes for which the State was offering the evidence:
intent, premeditation, plan, concealment, and that Smith was not an
innocent bystander. The trial court stated that these bases were relevant
to prove the element of premeditation. The trial court specifically found
that the evidence of the facts surrounding Smith's prior murder conviction
went to show the purposes of intent, plan and that Smith was not an
innocent bystander. We may consider these bases mentioned by the trial
court as well as other proper bases on which the trial court's admission of
evidence may be sustained. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d
615 (1995).
In 1982, Smith killed his sister because he didn't want to 'go back to
the joint.' He discarded her body in rural Clark County and disposed of
her clothing and belongings in an adjacent creek. Also regarding his
sister's death, Smith used the story that a stranger had attacked him in
her apartment and fled, but he later recanted. In a statement made years
later to Rodrigues, a cellmate, Smith expressly contemplated doing things
differently by burying the body, camouflaging the gravesite, and burning
associated evidence.
Here, the evidence was not that of modus operandi; it was used to
disprove Smith's theory of fortuity. State v. Roth, 75 Wn. App. 808, 820,
881 P.2d 268 (1994), review denied, 126 Wn.2d 1016 (1995). That is, it was
to rebut Smith's claim of innocent or inadvertent presence in the parking
lot and in being the last person to see Killaby. Smith had admitted that
he killed his sister because after he had stolen her car, he believed she
threatened his parole status. Smith's parole status probably was
threatened again by Killaby after she began to scream.
In each case, Smith told an unusual story that a stranger attacked him
and took the victim away. Smith did not report the strangers' attacks to
the police. Smith was the last person to see either woman alive. Smith's
sister was found dead in a remote place near a river, and Killaby's remains
have never been found. Evidence that Smith had a design to kill and
conceal the bodies of both women is supported by his statements to a
previous cellmate when Smith said that if he needed to dispose of a body,
he would bury it under a tree and burn the evidence. A rational fact
finder could conclude that Smith intended to kill anyone who threatened his
parole, to conceal the body, and to tell the police that a stranger
attacked him and abducted the victims. Such evidence was also relevant to
show the extent to which Smith would go to avoid going back to prison
because in both instances he was on parole. It showed his intent and that
he would have had a motive to kill if threatened by Killaby. Prior
convictions are admissible to show intent and that "the act in question was
not performed inadvertently, accidentally, involuntarily, or without guilty
knowledge." State v. Bythrow, 114 Wn.2d 713, 719, 790 P.2d 154 (1990)
(citations omitted). Evidence of intent was relevant because it was in
dispute in this case. Under Smith's version of the events, he did not have
any intent to kill or any premeditation to kill Killaby.
This evidence showed that Smith had concealed a body in the past after
murdering his sister. This evidence also tended to show premeditation, in
that, Smith would kill if threatened with going back to prison. In short,
this evidence was relevant for many reasons independent of propensity.
Smith also argues that the prejudicial effect of his prior murder
conviction outweighed any probative value. The trial court must balance on
the record the probative value of admitting evidence of prior acts with its
prejudicial effect. Powell, 126 Wn.2d at 264.
Here, the evidence was undeniably prejudicial. Nonetheless, the
record reflects that the trial court carefully considered and scrutinized
its potential for prejudice. See Roth, 75 Wn. App. at 822-23. In
particular, the trial court noted that, upon stipulation of the parties,
the jury already had before it evidence of Smith's parole status and of a
prison term for life if his parole was ever revoked. The trial court
stated that with evidence of Smith's parole status before the jury there
was less prejudice added by allowing additional information concerning the
underlying conviction. The trial court found after considered review that
'the probative value would add more in terms of the information to be
considered by the jury than the unduly prejudicial value{.}' Moreover, the
evidence admitted was highly probative of Smith's intent. In light of the
broad discretion conferred on the trial judge in this context, we conclude
that the trial court acted within its discretion in determining that the
probative value of this evidence outweighed its prejudicial effect. The
trial court did not err in admitting evidence of Smith's prior murder
conviction under ER 404(b).
3. Flight: The trial court permitted two Florida officers to
testify concerning Smith's flight and violent resistance to arrest in
Florida. Smith wanted the officers' testimony restricted to showing that a
struggle occurred in the course of the arrest and that he resisted arrest.
Contrary to Smith's contentions, the evidence of his flight is
relevant and admissible. It is an accepted rule that evidence of the
flight of a person, following the commission of a crime, is admissible and
may be considered by the jury as a circumstance, along with other
circumstances of the case, in determining guilt or innocence. This is so
because flight is an instinctive or impulsive reaction to a consciousness
of guilt or is a deliberate attempt to avoid arrest and prosecution. State
v. Burton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965).
In Burton, which Smith cited, the court stated that:
{T}he circumstance or inference of flight must be substantial and real. It
may not be speculative, conjectural, or fanciful. In other words, the
evidence or circumstances introduced and giving rise to the contention of
flight must be substantial and sufficient to create a reasonable and
substantive inference that the defendant's departure from the scene of
difficulty was an instinctive or impulsive reaction to a consciousness of
guilt or was a deliberate effort to evade arrest and prosecution.
Burton, 66 Wn.2d at 112-13. This rationale favors letting in all the
circumstances of Smith's flight to establish that his actions in Florida
were a deliberate effort to evade arrest and prosecution.
Here, there was substantial evidence of Smith's flight to avoid
capture and prosecution. He traveled to Florida, used several different
aliases, and resisted arrest to the point where he fought on the ground
with the officers, persistently struggling to grab one officer's gun. The
officers were able to stop Smith only by shooting him. This evidence of
Smith's flight and the extent to which he attempted to avoid arrest are
probative and the trial court had discretion to determine they were not
overly prejudicial. ER 403. There was no error.
D. Evidence Regarding Killaby's Husband
Smith challenges the trial court's exclusion of evidence connecting
Dan Killaby with his wife's disappearance and death. Evidence connecting
another person with the crime charged is not admissible unless there is a
train of facts or circumstances, which tend clearly to point to someone
other than the defendant as the guilty party. State v. Stenson, 132 Wn.2d
668, 734, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
In this case, Smith presented evidence showing: that Dan Killaby and
his wife had arguments; that she had discussed divorce; that he had sexual
relationships with other women after his wife had disappeared; that a dog
had detected a 'death scent' in Dan Killaby's truck; and that several days
after the incident Smith had identified Dan Killaby from a photo montage.
The trial court admitted some of this evidence, but it did not admit the
evidence of sexual relationships or the dog tracking.
Contrary to Smith's assertions, evidence of Dan Killaby's intimate
relationships with women in the months after his wife's disappearance is
not relevant to show whether he had an affectionate relationship before her
disappearance. ER 401. We affirm the trial court's exclusion of this
evidence.
Smith contends that the court erred in not admitting evidence that a
trained dog found a 'death scent' in the back of Dan Killaby's truck.
Smith mistakenly relies on State v. Loucks, 98 Wn.2d 563, 656 P.2d 480
(1983), arguing that because testimony concerning the results of dog
tracking evidence is admissible, his evidence of 'death scent' is also
admissible. Although courts allow evidence of a dog tracking a person to a
certain location subject to the laying of a foundation, no Washington cases
permit evidence of a 'death scent' located by a dog. See Loucks, 98 Wn.2d
563. Here, the trial court found the dog trainer's expert testimony to be
unreliable and not helpful to a jury under ER 702.
Under ER 702, a trial court's determination of whether the evidence
would be helpful to the jury is reviewed for an abuse of discretion.
Copeland, 130 Wn.2d at 270. In this case, the trial court entertained an
offer of proof for evidence of a person-specific 'death scent' and a
'vehicle track,' where a search and rescue dog purported to track Killaby
while she was in a vehicle. The court ruled that it was not going to admit
these dog tracking techniques because the procedures involved with the dog
were not reliable and would not be helpful to the jury under ER 702. The
trial court further stated that the dog trainer admitted that the use of a
dog to track a vehicle was an experimental procedure, and no other
witnesses indicated that it would be reliable. In addition, the trial
court likewise found a person-specific death scent to be unreliable and
other witnesses testified that it is not possible. We find no abuse of
discretion in the trial court's conclusion that these procedures were
unreliable.
Moreover, the trail was probably stale. Under conventional dog
tracking, one of the elements of laying a foundation is that the trail had
not become so stale or contaminated as to be beyond the dog's competency to
follow. Loucks, 98 Wn.2d at 566. Here, the dog attempted the vehicle
tracking about five days after Killaby's disappearance and the dog
allegedly found the 'death scent' about six days after her disappearance.
Cases that allow dog tracking typically involve tracking done within
minutes to a few hours from the time the person was last at the scene. See
Loucks, 98 Wn.2d 563; State v. Welker, 37 Wn. App. 628, 630, 683 P.2d 1110,
review denied, 102 Wn.2d 1006 (1984); State v. Socolof, 28 Wn. App. 407,
623 P.2d 733 (1981).
There was no error.
II. PRO SE ARGUMENTS
A. Police Officer's Testimony Regarding Responses From Other Law
Enforcement Agencies
Smith challenges the trial court's admission of Detective Lebow's
testimony concerning the results of his mass mailing campaign and any
possible leads that he had regarding Killaby's whereabouts. Smith objected
to this evidence as hearsay, but the trial court allowed Lebow to testify
regarding whether he found any leads when he received responses from 51
police agencies.
This court reviews a trial court's decision as to the admissibility of
evidence under an abuse of discretion standard. State v. Stenson, 132
Wn.2d at 701. ER 801(c) defines hearsay as 'a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.' A statement is an
oral or written assertion or nonverbal conduct. ER 801(a). The State
persuasively argues that Lebow did not make any hearsay statements because
he was simply indicating to the trier of fact that he had not developed any
leads as a result of his investigation of fifty-one questionnaires that he
received in response to the original mass mailing. Lebow did not testify
to any out of court statements made by third parties; he merely stated that
based upon his follow-up investigation he did not obtain any new leads as
to where Killaby was. McCormick addresses negative results of inquiries
and states that
{w}hen offered upon an issue as to whether due diligence has been exercised
in attempting to locate a missing witness or other person, it is clear that
testimony as to the results of the inquiries is not hearsay but is merely a
narration of acts and efforts showing due diligence.
2 McCormick on Evidence sec. 250, at 116 (John William Strong, et al.,
eds., 4th ed. 1992). We hold that the trial court did not err in allowing
Lebow's testimony.
B. Truck Burn Experiments
Smith next challenges the trial court's admission of the results of
three burn experiments performed by Dr. Etling on the seat of Smith's
truck. Shortly after Killaby's disappearance, the inside of Smith's truck
was damaged as a result of a fire. Smith told two people that this fire
started when he tried to throw a cigarette butt out the window but it
landed on the seat. This fire caused a significant amount of damage to the
inside of Smith's truck. After the Clark County Sheriff's Office examined
the fire damage inside the truck, a detective contacted Dr. Etling, to see
if he could recreate the fire in the manner Smith described.
Results of experiments or tests are admissible if the conditions of an
experiment are substantially similar to the actual happening and the
experiment will afford more satisfactory or reliable evidence than oral
testimony or will enable a jury to more intelligently consider the issues.
Breimon v. General Motors Corp., 8 Wn. App. 747, 756, 509 P.2d 398 (1973).
Sufficient similarity is all that is required, not identical conditions.
Breimon, 8 Wn. App. at 756. The trial court has discretion to determine
whether the similarity of conditions is sufficient. Bichl v. Poinier, 71
Wn.2d 492, 497, 429 P.2d 228 (1967).
Here, the burn experiments in Smith's truck were conducted in a manner
reasonably similar to the conditions that Smith described at the time of
the alleged accidental truck fire. In the experiments, Dr. Etling used the
same truck (Smith's truck), the same seat, the same ignition source, and
similar upholstery, which was identical to the factory upholstery on
Smith's truck seat except that it was new. Dr. Etling then performed three
test burns on the truck seat. He concluded that a cigarette could not have
caused the fire damage in Smith's truck. The main difference between the
experiments and the actual fire in Smith's truck is that the test was
conducted on new upholstery, possibly not in the same condition as Smith's
upholstery.
We agree with the State that these were only minor differences and the
three experiments were helpful to the jury. Because the similarity is
sufficient to justify admissibility, arguments going to the lack of
similarity go only to the weight of the evidence. See Breimon, 8 Wn. App.
at 756; Bichl, 71 Wn.2d at 497. Therefore, the trial court did not abuse
its discretion in allowing evidence of the burn experiments.
C. View of Smith's Truck
Smith objects to the jury observing his truck outside of the courtroom
and argues that the truck had to be admitted into evidence. The trial
court, however, permitted the jury to view the truck, not as evidence, but
as an aid in understanding the photographs and testimony that were admitted
and to view the scene.
A court may allow a jury to view the place in which any material fact
occurred. A trial court's decision to permit such a view will not be
overturned absent an abuse of discretion. CrR 6.9; State v. Bernson, 40
Wn. App. 729, 742, 700 P.2d 758, review denied, 104 Wn.2d 1016 (1985).
'The purpose of a jury view is to better understand the evidence produced
in court, not to take new evidence.' Arnold v. Laird, 24 Wn. App. 244,
249, 600 P.2d 662 (1979) review granted, 93 Wn.2d 1012 (1980) (no abuse of
discretion to allow a view of a dog where the view is to better understand
the testimony describing the dog).
The State submits the material facts of the kidnapping, rape, or
murder occurred in Smith's truck. Numerous photographs of the truck were
admitted and several witnesses testified about the truck and its interior.
The view was not new evidence but was simply an opportunity to clarify
existing evidence. There was no impermissible extrinsic evidence obtained
from the view. See O'Sullivan v. Scott, 25 Wn. App. 430, 432, 607 P.2d
1246 (1980). In addition, the trial court properly instructed the jury
that the view was not evidence. See Bernson, 40 Wn. App. at 742. We hold
that the view of the truck was permissible to help the jury understand the
photographs and testimony and to view the scene.
D. Jury Instructions
Smith contends that when the trial court failed to give Smith's
requested jury instructions one, two, three, and five, the court did not
properly instruct the jury. 'The trial court does not err in refusing to
give an instruction when, evaluated in the context of all the instructions,
it is collateral to or repetitious of those already given.' State v.
Brown, 132 Wn.2d 529, 618, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007
(1998). Jury instructions are sufficient if they, taken as a whole,
correctly state the law, are not misleading, and permit counsel to argue
their theory of the case. See Brown, 132 Wn.2d at 618; State v. Hoffman,
116 Wn.2d 51, 109-11, 804 P.2d 577 (1991).
1. Instructions on Kidnapping: Smith first argues that the trial
court erred by not giving his proposed instructions one, two, and three, on
kidnapping.2 The refusal to give an instruction that correctly states the
law does not constitute error if the instructions given are sufficient when
considered as a whole. See State v. Etheridge, 74 Wn.2d 102, 110, 443 P.2d
536 (1968). Moreover, if existing instructions properly state the law, the
trial court may refuse to give repetitious, cumulative or collateral
instructions. See State v. Benn, 120 Wn.2d 631, 655, 845 P.2d 289, cert.
denied, 510 U.S. 944 (1993).
Smith argues that the instructions in this case are not sufficient
because when 'certain types of evidence, standing alone, are insufficient
to support conviction, the jury must be informed of that fact.' Smith
cites no authority for this position, except for an example of an
instruction on accomplice liability in WPIC 10.41. Nonetheless, Smith
asserts that the jury must be informed of instances where evidence would be
insufficient to uphold a conviction on kidnapping. Further, Smith
misplaces reliance on State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980),
and State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995), cert. denied, 516
U.S. 1121 (1996). He improperly attempts to adopt the law from these
sufficiency of the evidence cases, and argues that the jury instructions in
this case were inadequate. These cases did not involve jury instructions
and do not apply here.
Here, the trial court properly instructed the jury on the elements of
kidnapping for felony murder and the definition of abduct and restrain.
Further, the defense was not prevented from arguing its theory of the case.
We hold that these instructions adequately stated the rule for kidnapping
for felony murder and that the trial court did not err by refusing to give
additional instructions.
2. Instruction Five on Circumstantial Evidence: Smith next argues
that the trial court erred by not giving his proposed instruction five,
which stated:
To convict a defendant of the crime of murder, based solely upon
circumstantial evidence, you must find that the circumstantial evidence
presented is consistent with guilt, and inconsistent with a hypothesis of
innocence, beyond a reasonable doubt.
Contrary to Smith's assertions, this so-called multiple hypothesis
circumstantial evidence instruction has been rejected by our Supreme Court.
The court held in State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975), that
this instruction should not be given because circumstantial evidence is not
per se less reliable than direct evidence. Gosby, 85 Wn.2d at 766-67.3
Further, it confuses the jury by implying that a higher standard than
reasonable doubt is necessary to render a verdict of guilty when
circumstantial evidence is employed. Gosby, 85 Wn.2d at 767.
In State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999), the
Supreme Court again addressed 'the former rule which required that if a
conviction rests solely on circumstantial evidence, the circumstances
proved must be unequivocal and inconsistent with innocence.' The Supreme
Court clearly stated that it has since 'rejected this rule in favor of the
rule that whether the evidence be direct, circumstantial, or a combination
of the two, the jury need be instructed that it need only be convinced of
the defendant's guilt beyond a reasonable doubt.' Bencivenga, 137 Wn.2d at
711 (citing Gosby, 85 Wn.2d at 767).
To give the proposed instruction would have been error. Further, in
this case the court adequately instructed the jury on reasonable doubt, and
this was sufficient. Thus, there was no error.
E. Restitution, Court Costs and Attorney Fees Upon an Indigent Defendant
Smith challenges the trial court's imposition of restitution, court
costs, and attorney fees on the grounds of his current indigency. Contrary
to Smith's assertions, his current inability to pay does not bar the trial
court from imposing costs and fees. See State v. Blank, 131 Wn.2d 230,
242, 930 P.2d 1213 (1997) (stating the Constitution does not require an
inquiry into ability to pay at the time of sentencing). In Blank, the
court stated:
{C}ommon sense dictates that a determination of ability to pay and an
inquiry into defendant's finances is not required before a recoupment order
may be entered against an indigent defendant as it is nearly impossible to
predict ability to pay over a period of 10 years or longer. However, we
hold that before enforced collection or any sanction is imposed for
nonpayment, there must be an inquiry into ability to pay.
Blank, 131 Wn.2d at 242.
Specific findings regarding a defendant's ability to pay court costs
are not required. State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992).
Smith argues that he should not have to pay because he was determined to be
indigent on appeal. But the Supreme Court has rejected the similar
argument that orders of indigency entered for purposes of appeal are
sufficient to show that a defendant cannot, in fact, pay the financial
obligations imposed. Curry, 118 Wn.2d at 915 n.2.
In addition, the State correctly points out that restitution is
specifically mandated and authorized by statute and its imposition is
proper. See RCW 9.94A.142; see also State v. Huddleston, 80 Wn. App. 916,
929, 912 P.2d 1068, review denied, 130 Wn.2d 1008 (1996) (rejecting a
similar argument of indigency and imposing restitution).
Accordingly, we hold that the trial court did not err in imposing
costs, attorney fees, and restitution even though Smith was indigent.
III. AMENDMENT OF INFORMATION AND VINDICTIVENESS
Smith contends that the trial court should have dismissed the amended
charges under CrR 8.3, first, because he was forced to choose between his
right to a speedy trial and his right to an adequate defense by the late
amended information and, second, because the prosecutor was vindictive in
adding harsher charges.
A. Delay in Amending Information
A trial court may dismiss additional charges under CrR 8.3(b) if the
defendant makes two showings. First, a defendant must show arbitrary
action or governmental misconduct in amending the charges. State v.
Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993). Governmental
misconduct, however, 'need not be of an evil or dishonest nature; simple
mismanagement is sufficient.' Blackwell, 120 Wn.2d at 831. Absent a
showing of arbitrary action or governmental misconduct, a trial court
cannot dismiss charges under CrR 8.3(b). State v. Michielli, 132 Wn.2d
229, 240, 937 P.2d 587, 71 A.L.R.5th 705 (1997). The Supreme Court has
emphasized that CrR 8.3(b) is designed to protect against arbitrary action
or governmental misconduct and not to grant courts the authority to
substitute their judgment for that of the prosecutor. Michielli, 132 Wn.2d
at 240.
The second necessary element a defendant must show before a trial
court may dismiss charges under CrR 8.3(b) is prejudice affecting the
defendant's right to a fair trial. See State v. Cannon, 130 Wn.2d 313, 328-
29, 922 P.2d 1293 (1996). 'Such prejudice includes the right to a speedy
trial and the 'right to be represented by counsel who has had sufficient
opportunity to adequately prepare a material part of his defense{.}''
Michielli,132 Wn.2d at 240 (quoting State v. Price, 94 Wn.2d 810, 814, 620
P.2d 994 (1980)).
'A trial court's power to dismiss charges is reviewable under the
manifest abuse of discretion standard.' Michielli, 132 Wn.2d at 240.
'Discretion is abused when the trial court's decision is manifestly
unreasonable, or is exercised on untenable grounds, or for untenable
reasons.' Blackwell, 120 Wn.2d at 830.
In Michielli, the Supreme Court concluded that prosecutorial
misconduct and the resulting prejudice to the defendant required dismissal
pursuant to CrR 8.3(b). Michielli, 132 Wn.2d at 246. In that case, the
prosecutor inexplicably decided to file four additional charges five days
before trial, thereby forcing the defendant to waive his speedy trial
rights in order to prepare a defense to the new charges. Michielli, 132
Wn.2d at 243-44. The State admitted it possessed all the information
necessary to file all of the charges when it filed the initial information.
The State did not obtain more discovery, add witnesses, or anything else
that expanded the scope of the information. The court noted that the only
reasonable explanation for the prosecutors delay appeared to be harassment
of the defendant. Further, the court held that the defendant was
prejudiced when the prosecutor delayed adding four serious charges until
just days before trial, thereby giving the defendant the choice of going to
trial unprepared or waiving his right to a speedy trial and asking for a
continuance. Michielli, 132 Wn.2d at 244.
In this case, the original information was filed on July 12, 1996,
charging felony murder, and the defendant had been in custody in Washington
since March 1997. The State notified Smith of its intent to file an
amended information charging aggravated murder in the first degree and
felony murder in the first degree on October 31, 1997. Unlike Michielli
where the State gave no justification for the delay, here the State pointed
to several reasons why it amended the information. The State submitted
that it had new evidence. This new evidence was the Pennsylvania State's
laboratory analysis with the mtDNA analysis showing that Killaby's blood
could not be excluded as the blood found in Smith's truck and that this
blood was consistent with the victim's blood. These results were not known
until October 1997.4 The State also mentioned that in preparing for a
Knapstad motion, which Smith later withdrew, it thoroughly reevaluated the
case and concluded that the information should be amended. See State v.
Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). The State asserts that once
it decided to amend the information, it gave notice to Smith as soon as
possible, giving him a month before the scheduled trial date to prepare.
Further, the trial court here found that the amended information was
given 30 days before the scheduled trial date. And the nature of the
amendment did not add additional charges; it only added an alternative
charge and enhancements. Although the trial court acknowledged that the
penalty was much more severe under the amended information, the court found
that there was only one crime charged, the murder of the same victim as
originally charged. The trial court determined that 30 days was sufficient
to respond to the amended charge. There is no undue prejudice where there
is still time to prepare a defense. State v. Kester, 38 Wn. App. 590, 593,
686 P.2d 1081, review denied, 102 Wn.2d 1006 (1984).
Therefore, we hold that the circumstances of this case support that
the amended information was not the result of State misconduct or
mismanagement and that this amended information did not unduly prejudice
Smith. The trial court acted with tenable reasons when it refused to
dismiss this case; it did not abuse its discretion.
B. Prosecutorial Vindictiveness
Smith further argues that the prosecutor was vindictive in amending
the information by attempting to coerce a plea to these unsupported amended
charges. Smith states that '{p}rosecutorial vindictiveness is intentional
filing of a more serious crime in retaliation for a defendant's lawful
exercise of a procedural right.' State v. McKenzie, 31 Wn. App. 450, 452,
642 P.2d 760, review denied, 96 Wn.2d 1024 (1981). Smith, however, does
not specifically point to any procedural right that he exercised and the
State retaliated against. Moreover, Smith did not meet the requirement of
establishing actual vindictiveness, an intent by the prosecutor to
retaliate. State v. Lee, 69 Wn. App. 31, 35, 847 P.2d 25, review denied,
122 Wn.2d 1003 (1993); State v. Lass, 55 Wn. App. 300, 306, 777 P.2d 539
(1989). Smith argues that he established this vindictiveness because there
was no factual or legal foundation for the amended charges.
Contrary to Smith's assertions, there was evidence that supported
these additional charges. With the DNA results, the State had supporting
evidence that the blood found in Smith's truck was consistent with
Killaby's blood. Also there was evidence that Smith was the last person to
be with Killaby before she disappeared, that he entered a store with wounds
and blood on himself not long after police had received reports of a woman
screaming for help in a field nearby, that the screams were five minutes
apart, that he attempted to remove Killaby's DNA from the inside of his
truck, and that he was on parole and would do anything to stay out of
prison. Because there was evidence upon which to base the amended charges,
we hold the trial court was correct when it found Smith did not meet his
burden of showing vindictiveness. Accordingly, the trial court did not err
in denying Smith's CrR 8.3(b) motion to dismiss.
IV. PROSECUTORIAL MISCONDUCT IN THE CLOSING ARGUMENT
We now address the allegation of prosecutorial misconduct in the
closing statement. Smith argues that the prosecutor engaged in misconduct
because his reference to Smith as a 'predator' who 'tasted blood before'
made a direct appeal to jury fear and because his description of 'hunts'
was not based on the evidence.5 The trial court denied a motion for a
mistrial based upon these improper statements. This court reviews
allegations of prosecutorial misconduct for abuse of discretion. Brett,
126 Wn.2d at 174. In a claim of prosecutorial misconduct, the defendant
bears the burden of establishing both improper conduct and prejudicial
effect. State v. Luvene, 127 Wn.2d 690, 903 P.2d 960 (1995).
The argument was improper in its appeal to passion. It was not based
upon any evidence or any reasonable inference to any evidence. The
prosecutor claimed that Smith was a predator who was hunting and that he
had a regular pattern. The prosecutor claimed that he was searching for a
victim whom he could isolate. The conduct was improper; we agree with the
trial court that sustained an objection to this argument.
Smith however, has not shown that there was a substantial likelihood
the prosecutor's remarks affected the jury's decision. See State v.
Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984); State v. Wilson,16 Wn.
App. 348, 357, 555 P.2d 1375 (1976). Here, any prejudice was mitigated
because (1) the court sustained an objection during the closing argument,
(2) the court gave a general instruction stating that the arguments were
not evidence, and (3) Smith declined a curative instruction while arguing
in closing that these specific comments were offered solely to engender
juror prejudice.
Two factors predominate in our determination. The defense's incorporation
of the precise, prejudicial, objected to material into its own closing
argument6 weakens the contention that it denied Smith a fair trial. State
v. Russell, 125 Wn.2d 24, 89, 882 P.2d 747 (1994) cert. denied, 514 U.S.
1129 (1995). The defense drew attention to gain a tactical advantage.
Further, the trial court offered to give a curative instruction, but Smith
declined. Reversal is not required if the error could have been obviated
by a curative instruction, which the defense did not request. State v.
York, 50 Wn. App. 446, 458, 749 P.2d 683 (1987). Here, any remaining
prejudice could have been obviated by a curative instruction, but Smith
never requested one. Thus, we find no reversible error.
V. SUFFICIENCY OF THE EVIDENCE
Smith argues that his conviction should be reversed because there was
insufficient evidence of premeditation for first degree murder and of the
charged predicate felonies of rape and kidnapping, which supported the
charges of felony murder and of aggravated murder.
Evidence is sufficient if, viewed in the light most favorable to the
State, a rational trier of fact could find the elements of the crime beyond
a reasonable doubt. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). A
challenge to the sufficiency of the evidence admits the truth of the
State's evidence and all reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the
defendant. State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967, cert. denied,
120 S. Ct. 285 (1999). First degree murder includes the element of a
premeditated intent to cause the death of another person. RCW 9A.32.030.
If the jury finds premeditation, it then looks to see if aggravating
factors are involved - - i.e.(1) whether the defendant murdered to conceal
the commission of another crime or to protect or conceal the identity of
any person committing the crime (other than the crime of murder); (2)
whether the murder was committed in the course of, or in furtherance of or
in the immediate flight from the crime of rape in the first or second
degree; or (3) whether the murder was committed in the course of, or in
furtherance of or in the immediate flight from the crime of kidnapping in
the first degree. The jury found all three.
Also, the jury found that Smith had committed the crime of felony murder by
committing or attempting to commit kidnapping in the first degree, or rape
in the first or second degree and by causing Killaby's death in the course
of or in furtherance of such crime or in immediate flight from such crime.
A. Rape in the First or Second Degree or Attempted Rape in Either Degree
The jury was instructed regarding rape in the first degree as follows:
A person commits the crime of Rape in the First Degree when that person
engages in sexual intercourse with another person by forcible compulsion
when the perpetrator kidnaps the victim or inflicts serious physical
injury.
They were instructed as to rape in the second degree:
A person commits the crime of Rape in the Second Degree when under
circumstances not constituting Rape in the First Degree that person engages
in sexual intercourse with another person by forcible compulsion or when
the victim is incapable of consent by reason of being physically helpless
or mentally incapacitated.
Attempts for both rape in the first and second degree were defined as
having the intent to commit the crime and then taking a substantial step
toward its commission.
Although there is some evidence that sexual intercourse occurred
because Smith claimed he had sexual intercourse with Killaby, we find no
evidence that it was by 'forcible compulsion.'7 We also find insufficient
evidence of physical helplessness or mental incapacity. In this case,
being drunk does not place Killaby in either of these states. From the
evidence, we know that she screamed for help and that she put up a fight -
- both of these facts demonstrate a condition other than physical
helplessness or mental incapacity.
B. Kidnapping or Attempted Kidnapping
We find no evidence of either kidnapping or attempted kidnapping. The jury
was instructed regarding kidnapping in the first degree as follows:
A person commits the crime of Kidnapping in the First Degree when he or she
intentionally abducts another person with intent to facilitate the
commission of Rape in the First or Second Degree, or flight thereafter or
to inflict bodily injury on the person or to inflict extreme mental
distress on that person.
'Abduct' was defined for the jury as:
Abduct means to restrain a person by either secreting or holding the person
in a place where that person is not likely to be found or using or
threatening to use deadly force.
There is simply no evidence that Smith secreted or held Killaby, when she
was alive, where she could not be found, or that Smith used or threatened
deadly force to restrain Killaby.
Because there is no substantial evidence of either of the predicate
offenses, neither the special verdict with the aggravating factors nor the
felony murder conviction can stand. We thus reverse the special verdict
with the aggravating factors and the felony murder conviction.
C. Murder in the First Degree
Smith was charged with the crime of murder in the first degree
(premeditated murder). The elements of the crime were (1) that Smith
caused Killaby's death; (2) that he acted with the intent to cause her
death: (3) that the intent to cause death was premeditated; and (4) that
Killaby died as a result of his acts. Premeditation is the mental process
of thinking beforehand, deliberation, reflection, weighing or reasoning for
a period of time, however short. State v. Commodore, 38 Wn. App. 244, 247,
684 P.2d 1364, review denied, 103 Wn.2d 1005 (1984). Premeditation can be
shown by circumstantial evidence where the inferences drawn by the jury are
reasonable and the evidence supporting the jury's verdict is substantial.
State v. Bingham, 105 Wn.2d 820, 824, 719 P.2d 109 (1986). In a first
degree murder case '{f}our characteristics of the crime are particularly
relevant to establish premeditation: motive, procurement of a weapon,
stealth, and the method of killing.' State v. Pirtle, 127 Wn.2d 628, 644,
904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996) (citation omitted).
Motive is particularly relevant in this case.
Contrary to Smith's assertions, the fact that Killaby's body was never
recovered is not dispositive in this case. See State v. Lung, 70 Wn.2d
365, 371, 423 P.2d 72 (1967). The victim's habits were relevant to show
that she was deceased, not just missing. State v. Thompson, 73 Wn. App.
654, 661-62, 870 P.2d 1022, review denied, 125 Wn.2d 1014 (1994). Using
the standard for evaluating the sufficiency of the evidence, we have no
difficulty in holding that there was sufficient evidence to convict Smith
of first degree murder.
The evidence here, viewed in a light most favorable to the State, was
that Smith had previously murdered his sister because his parole was
threatened. In that instance, he had hidden the victim's body and lied
about a stranger who assaulted him and left with the victim. Later Smith
refined his plan to dispose of a body if he ever had the occasion to murder
anyone. The evidence showed that he was still on parole and that he was
facing a long prison term if he violated it. Further, a short time after
Smith left Omar's with Killaby, there were screams heard from a nearby
location. There were no other incidents of injury in the area or any
missing women;8 and the two reports of screams imply a reasonable interval
within which Smith formed the premeditated intent to murder Killaby.
Further, there were defensive cuts on Smith, and there was blood on his
watch and in his truck, which was consistent with Killaby's nuclear DNA.
The blood stains on Smith's watch and in his truck lead to an inference
that violence occurred between Smith and Killaby. The defensive cuts and
the screams indicate that more than a moment in time occurred to form the
premeditation necessary for this offense.9 His actions in attempting to
cleanse his truck, by cleaning and then by fire, demonstrate guilt. And
his flight and resistance is indicative of his intent to avoid revocation
of his parole. It is reasonable for any juror to conclude that Smith
premeditated Killaby's death.
As the State asserts, any rational trier of fact could have found,
beyond a reasonable doubt, that Smith knew not only the consequences of
taking a human life, but also appreciated the consequences of killing in a
careless manner. See State v. Finch, 137 Wn.2d at 833-34. From the above
evidence, a jury could reasonably conclude that Smith had time to reflect,
deliberate, and even consider the consequences of taking Killaby's life.
Furthermore, viewing the evidence in the light most favorable to the State,
the evidence indicates Smith had a motive to
kill anyone who threatened his parole status. There was sufficient
evidence to sustain the jury's verdict of murder in the first degree.
Affirmed in part, reversed in part, and remanded for resentencing.
A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, J.
We concur:
Morgan, P.J.
Houghton, J.
1 ER 404(b) provides: 'Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.'
2 Defendant's proposed instruction one, 'The incidental restraint and
movement of the person of another, during the course of another crime,
including homicide, which has no independent purpose or injury, is not a
kidnapping.'
Defendant's proposed instruction two, 'Evidence of force used to cause the
death of Carolyn Killaby may not be considered as proof that Carolyn
Killaby was restrained by the use of deadly force. In order to find that a
kidnapping occurred, through restraint effected by the use of deadly force,
the State must present evidence sufficient to establish that deadly force
independent of the killing was used.'
Defendant's proposed instruction three, 'Evidence of the secretion or
concealment of a body following death is insufficient to establish that a
living person was restrained by secreting or holding them in a place where
they are not likely to be found.'
3 The court stated an example of a variation of the traditional multiple
hypothesis instruction was that if circumstantial evidence is considered,
it should be consistent with guilt and inconsistent with innocence. Gosby,
85 Wn.2d at 764.
4 The DNA samples were transferred to Pennsylvania State for mtDNA testing
long before the scheduled trial date, but the mtDNA analysis was delayed by
the sabbatical leave of Dr. Melton and Dr. Stoneking. As soon as these
doctors returned, they analyzed the mtDNA and sent out their report. The
State additionally noted that Smith knew about this mtDNA testing long
before the amended information because mtDNA testing was mentioned in the
nuclear DNA report and the State also gave Smith the correspondence with
Pennsylvania State about proceeding with the mtDNA testing in late July or
early August.
5 The pertinent offensive portion includes:
'{This} is a case about a predator, a predator that has tasted blood
before, a predator that has killed before.
. . .
Again, the predator in this case, Dennis Smith, hunts in his
territory, a territory that's familiar to him, a territory around his
house. He has a regular pattern he hunts in.
He goes to Omar's. And he goes to Dizzy's. And he goes to 7-Eleven.
And each time he's looking for prey. He's looking to isolate the victim.
He's looking to cut a victim out of the herd.'
6 In its closing argument, the defense stated:
'And if there was any doubt about that, the State's closing argument
took care of those doubts. Now you don't have to talk about the evidence
anymore if you can get that conviction in, because then you can talk about
predators, and having tasted blood before.
You can forget all the other evidence about what kind of person Mr.
Smith was as he came into these bars as a quality customer, and you can
talk about this fantasy realm, you can talk about hunts on the nightly
prowls and trying to cut people out of the herd. Anything to keep those
guts churning, anything to keep you from using your head and looking at the
evidence of 1995.'
7 The court instructed: 'Forcible compulsion means physical force which
overcomes resistance, or a threat, express or implied, that places a person
in fear of death or physical injury to oneself or another person or in fear
of being kidnapped or that another person will be kidnapped.'
8 Facts conceded at oral argument.
9 The court instructed: 'Premeditation means thought over beforehand.
When a person, after any deliberation, forms an intent to take human life,
the killing may follow immediately after the formulation of the settled
purpose and it will still be premeditated. Premeditation must involve more
than a moment in point of time. The law requires some time, however long
or short, in which a design to kill is deliberately formed.