no. 30419-8-ii state of washington, vs. for pierce … · court of appeals, division ii state of...
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NO. 30419-8-II
COURT OF APPEALS, DIVISION II
STATE OF WASHINGTON,
Respondent,
vs.
DANIEL DEAN CARLSON,
Appellant.
APPEAL FROM THE SUPERIOR COURT
FOR PIERCE COUNTY The Honorable Lisa Worswick
Cause No. 01-1-03853-4
BRIEF OF APPELLANT
PATTIE MHOON, WSBA NO. 21495
Attorney for Appellant 949 Market St., Ste. 488
Tacoma, WA 98402 (253) 272-1770
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TABLE OF CONTENTS A. ASSIGNMENTS OF ERROR ........................................................... 1-4 B. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR.............. 4-6 C. STATEMENT OF THE CASE........................................................ 6-33 D. ARGUMENT
I. Daniel’s statements made to police in the “pre-interviews” were custodial statements made without the benefit of Miranda warnings and should not have been admitted at trial, and lack of Miranda warnings for the “pre-interview” tainted the later recorded statements after Miranda warnings ..............................................................33 a. Daniel’s statements in the “pre-
interviews” were custodial statements without the benefit of Miranda warnings ........................................................33
b. Daniel’s statements, both
recorded and unrecorded, following Miranda warnings were tainted by the custodial statements made prior to Miranda warnings and should not have been admitted ...............................................................36
II Daniel was unduly prejudiced when
the trial court allowed evidence of his silence to infer guilt, which violated his Fifth Amendment right to remain silent and shifted the burden of proof to him.......................................................37
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III The trial court erred in permitting FBI profiler Mark Safarik to testify regarding his interpretation of the crime as staged because Safarik’s testimony was not helpful to the trier of fact, is not accepted in any scientific community and he lacks the qualifications to render “behavioral” opinions ........................................................42
a. A.Crime Scene Analysis
Designed To “Interpret” and “Explain” Behavior Is Not Accepted By Any Scientific Community ..................................................................42
b. Safarik’s opinion was not admissible under ER 702 because it was not helpful to the trier of fact and his testimony was cumulative Crime Scene Analysis ...............................45
c. The court erred in admitting the
testimony of Mark Safarik because his “interpretation” and “explanation” of behavior at the crime scene is irrelevant. Scene Analysis Designed To “Interpret” and “Explain” Behavior Is Not Accepted By Any Scientific Community ..................................................................51
IV Daniel was denied a fair trial by
prosecutorial misconduct ...................................................52
a. The prosecutor prejudiced Daniel by eliciting testimony that infringed upon his Fifth Amendment right to remain silent, inviting the jury to infer
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that he was guilty or he would have called the police during the investigation.................................................................53
b. The prosecutor prejudiced Daniel by eliciting testimony that infringed upon to his Sixth Amendment right to counsel, inviting the jury to infer that he was guilty or he would not have retained an attorneyafarik’s opinion was not admissible under ER 702 because it was not helpful to the trier of fact and his testimony was cumulative Crime Scene Analysis .....................................54
c. The prosecutor deliberately
elicited testimony in an attempt to have one defendant implicate the other in violation of the court’s pre-trial ruling and in violation of their constitutional right to confront witnesses ...........................................57
V The trial court prejudiced Daniel by
allowing testimony as to his lack of emotion and his demeanor at the scene of the crime and at the time of his arrest, which was impermissible opinion testimony that inferred Daniel’s guilt......................................................................57
VI It was prejudicial error to admit
evidence of Daniel’s ownership of
guns that were unrelated to the
commission of the crime ....................................................62
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VII The State failed to prove beyond a
reasonable doubt that Daniel Carlson
was the person who killed his wife or
that he was an accomplice to the
person who killed his wife ..................................................63
VIII The Trial Court Erred In Limiting
Carlson’s Cross Examination Of
State Witness Shawn McKillop
Regarding His Extensive History Of
Debilitating Bipolar Manic Mental
Illness .................................................................................73
IX The Court Erred In Failing To
Follow The Proper Procedures For
Evaluating Evidence and Admitted
Irrelevant and Unfairly Prejudicial
Evidence that Deprived Daniel Of A
Fair Trial And Infringed Upon His
Right To Confront Witnesses.............................................77
a. Victim Lisa Carlson’s “State of Mind” Is Not Relevant And Thus Not Admissible .......................................................77
b. Testimony Regarding Lisa
Carlson’s Statement Made 3 Months Before Her Death That She Intended To File For A Divorce
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After The Bankruptcy is Inadmissible .....................................................78
c. Lisa’s Statements To Her
Mother That She Disliked Her In-laws And Disliked Living In Kapowsin Were Irrelevant And Inadmissible Under ER 803(a)(3)...........................................................81
d. The Court Erred In
Admitting Notebooks and Documents Written By Individuals Other Than Dan Carlson Chronicling Lisa’s Deficiencies as A Wife And Mother When It Ruled The Writings Were Admissible As Evidence Of A “Concerted Family Effort” Establishing Dan’s Motive, When Such Evidence Denied Dan His Right To Confront Witnesses Against Him, Is Irrelevant And Unreliable ................................82
X Daniel Carlson Was Denied His Constitutional Right To Confront Witnesses When The Court Allowed The State To Present Statements Attributed To The Co-Defendant, Carol Carlson, Mandating His Conviction Be Reversed.....................................................85
XI The court erred in denying Daniel’s
motions for a mistrial after the State intentionally elicited testimony from the father of the deceased designed
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to poison the jury by propounding a constitutionally prohibited opinion of guilt by one defendant regarding the other, and after the State intentionally elicited testimony infringing on Daniel’s constitutional right to remain silent and his constitutional right to counsel ............................................87
XII The cumulative effect of the errors at
trial denied Daniel his constitutional right to a fair trial ...............................................................89
XIII Under Blakely v. Washington
Daniel’s exceptional sentence must be reversed because the facts necessary to support an exceptional sentence were not submitted to a jury and proved beyond a reasonable doubt ..................................................................................90
XIV The charging document is defective
because the aggravating factors to increase punishment above the standard range, an essential element of the crime charged, were not alleged................................................................................93
E. CONCLUSION..............................................................................96
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TABLE OF AUTHORITIES
State Page No. In re Aqui, 84 Wn. App. 88, 929 P.2d 436 (1996).................................. 50 In re the detention of Twining, 77 Wn. App. 882, 891, 894 P.2d 1331 (1995)..................................................................................... 47 In re Detention of A.S., 138 Wn.2d 898, 918 P.2d 1156 (1999) ............ 47 C.F. Doke v. United Pacific Insurance Co., 15 Wn.2d 536, 131 P.2d 436 (1942), affirmed, 15 Wn.2d 536, 135 P.2d 71 (1943) ...... 79 Miller v. Likins, 109 Wn. App. 140, 34 P.3d 835 (2001)....................... 51 Physicians Ins. Exch. V. Fisons Corp., 122 Wn.2d 299, 344, 858 P.2d 1054 (1993).............................................................................. 58 Queen City Farms Inc. v. Central Nat. Ins. Co. of Omaha, 126 Wn.2d 50, 104, 882 P.2d 703 (1994)........................................................................ 51 Reese v. Stroh, 125 Wn.2d 296, ___ P.2d ___ (1995)....................... 43,44 Riccobono v. Pierce County, 92 Wn. App. 254, 966 P.2d 327 (1998)... 51 Seattle v. Clark Munoz, Seattle v. Hall and State v. Jagla Slip Op. Wash. S.Ct. 74579-0 (7-1-04) (en banc)................................... 45 State v. Acosta, 101 Wn.2d 612, 615, 683 P.2d 1069 (1984..................... 63 State v. Ammons, 105 Wn.2d 175, 180-181, 713 P.2d 719, 718 P.2d 796 (1986)................................................................................ 91 State v. Barr, Slip Op., Division III, August 3, 2003......................... 60,61 State v. Benn, 120 Wn.2d 631, 650, 845 P.2d 289 (1993)................. 76,77 State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987).................. 45,57 State v. Bourgeois, 133 Wn.3d 389, 399, 945 P.2d 11220 (1997).......... 77
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State v. Carlin, 40 Wn.App. 698-703, 700 P.2d 323 (1985)................... 59 State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1355 (1997).............. 78 State v. Chapin, 118 Wn.2d 681, 691, 826 P.2d 194 (1992 ...................... 63 State v. Cauthron, 120 Wn.2d 879, 846 P.2d 502 (1993) ............. 43,44,45 State v. Coe, 101 Wn.2d 772, 789, 694 P.2d 668 (1984)........................ 89 State v. Coles, 28 Wn. App. 563, 573, 625 P.2d 713 (1981)..................... 52 State v. Crane, 116 Wn.2d 315, 333, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991) ........................................................ 53 State v. Dennis, 16 Wn.App. 417, 421, 558 P.2d 297 (1976)................. 34 State v. Davenport, 100 Wn.2d 757, 675, 675 P.2d 1213 (1984) ...... 52,53 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)..................... 64 State v. Easter, 130 Wn.2d 228, 236, 922 P2d 1285 (1996) .... 37,38,39,42 State v. Farr-Lenzini, 93 Wn. App. 453, 461, 970 P.2d 313 (1999)................................................................. 49,50,51,59 State v. Goodman, 150 Wn.2d 774, 786, 83 P.3d 410 (2004) .......... 94,95 State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) .................. 42 State v, Haga, 8 Wn. App. 481, 492, 507 P.2d 159 (1973)................ 57,58 State v. Heib, 107 Wn.2d 97, 108, 727 P.2d 239 (1986) ........................ 76 State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983).................... 74 State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968)...................... 52 State v. Jeffries, 105 Wn.2d 398, 412, 717 P.2d 722 (1986) ..................... 62
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State v. Johnson, 124 Wn.2d 57, 873 P.2d 514 (1994) ........................... 88 State v. Johnson, 90 Wn.App. 54, 950 P.2d 981 (1998) ......................... 89 State v. Jones, 130 Wn.2d 302, 306-07, 922 P.2d 806 (1996)................ 43 State v. Jones, 71 Wn. App. 798, 812-13, 863 P.2d 85 (1993).......... 57,58 State v. Lavaris, 99 Wn.2d 851, 857-58, 664 P.2d 1234 (1983)............. 37 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996) .......... 38,42,88 State v. Luna, 71 Wn. App. 755, 759, 862 P.2d 620 (1993)................... 64 State v. McCarty, 140 Wn.2d 420, 424-425, 998 P.2d 296 (2000) ... 94,95 State v. Monday, 85 Wn.2d 906, 909-910, 540 P.2d 416 (1975) ........... 74 State v. Monson, 113 Wn.2d 833, 784 P.2d 485 (1989) ......................... 74 State v. Nemitz, 105 Wn.App. 205, 214-215, 19 P.3d 480 (2001) .... 55,56 State v. Nelson, 72 Wn.2d 269, 285, 432 P.2d 857 (1967)..................... 55 State v. Orndorff, Slip Op. 29696-9-II (8/3/04)...................................... 83 State v. Oughton, 26 Wn. App. 74, 612 P.2d 812 (1980) ....................... 89 State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987) ................... 95 State v. Powell, 126 Wn.2d 244, 266, 893 P.2d 615 (1995)......... 79,80,81 State v. Reuben, 156 Wash. 655, 287 P. 887 (1930) .............................. 79 State v. Robinson, 73 Wn. App. 851, 8972 P.2d 43 (1994).................... 64 State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984)................................ 62 State v, Russell, 125 Wn.2d 24, 882 P.2d 747 (1994) ....................... 48,49 State v. Salinas, 119 Wn. 192, 201, 829 P.2d 1068 (1992 ........................ 64
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State v. Sargent, 40 Wn. App. 340, 552, 698 P.2d 598 (1985)............... 59 State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997) ............ 53 State v. Silva, 119 Wn.App. 422, 428, 81 P.3d 889 (2003)............... 42,55 State v. Stamm, 16 Wn.App. 603, 559 P.2d 1, (1976), review denied, 91 Wn.2d 1013 (1977).................................................... 82 State v. Terranova, 105 Wn.2d 632, 716 P.2d 295 (1986)...................... 80 State v. Vanderpen, 125 Wn.2d 782, 789, 888 P.2d 1177 (1995) .......... 95 Federal Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) .....................................................90,91,93,94,95 Blakely v. Washington, Slip Op. No. 02-1632, 6-24-04...........90,91,93,94 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968) ............................................................. 57,85,87,88 Chamber v. Mississippi, 410 U.S. 284, 35 L. Ed.2d 297, 93 S. Ct. 1038 (1973).............................................................................. 74 Chapman v. California, 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967)................................................................................. 77 Commonwealth v. Johnson, 259 Va. 654, 529 S.E. 2d 769 (2000) ........ 51 Connecticut v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987) .......................................................................... 34 Crawford v. Washington, 541 U.S.___, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ............................................... 74,82,83,84,85,86 Delaware v. Van Arsdall, 475 U.S. 673, 684, 89 L.Ed.2d 674, 106 S.Ct. 1431 (1986)............................................................................. 76
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Doe v. United States, 487 U.S. 201, 213, 108 S.Ct. 2341, 101 L. Ed. 2d 184 (1988) ........................................................................ 39 Duncan v. Louisiana, 391 U.S. 145, 20 L. E. 2d 491, 88 S. Ct. 1444 (1968).............................................................................. 87 Frye v. United States, 293 F. 1013 (1923) .................................... 43,44,47 Gideon v. Wainwright, 372 U.S. 335, 344 (1963).................................... 55 Griffin v. California, 380 U.S. 609, 619, 85 S. Ct. 1229, 14 L.Ed. 2d 106 (1965) ........................................................................... 37 Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ..................................... 90 Haber v. Wainwright, 756 F.2d 1250, 1522 (11th Cir. 1985).................. 74 Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L.Ed. 1118 (1951) .............................................................................. 38 Kastigar v. United States, 406 U.S. 441, 444, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972) .......................................................................... 38 Lilly v. Virginia,527 U.S. 116, 123-24, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) .......................................................................... 76 Miranda v. Arizona, 384 U.S. 436, 447-458, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966) ............................................................ 33,34,37,38 Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892) .......................................................... 79 Parkhurst v. State, 628 P.2d 1369, 1381 (Wyo.), cert. denied, 454 U.S. 899 (1981) ...................................................... 38,42 Penson v. Ohio, 488 U.S. 75, 84, 109 S. Ct. 346, 102 L.Ed.2d 300 (1988) .......................................................................... 55 Schriro v. Summerlin, Slip Opinion No. 03-0526 (June 24, 2004) ........ 90
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United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992) ..... 74,75 United States v. McMurray, 833 F.Supp. 1454, 1480 (1993), reversed on other grounds, 245 F. 3d 682 (8th Cir. 2001).................. 75,76 United States v. Whitehead, 200 F.3d 634, 639 (9th Cir. 2000)............ 42 Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) .............................................................................. 36 Constitutional U.S. Constitution, Fifth Amendment .................................. 33,37,38,53,88 U.S. Constitution, Sixth Amendment............................. 54,55,73,74,87,88 Wa. Const. art. 1, Section 22......................................................... 55,73,87
Statutes RCW 5.160.050 ...................................................................................... 75 RCW 9.41.010 .......................................................................................... 7 RCW 9.94A.310........................................................................................ 6 RCW 9.94A.370........................................................................................ 6 RCW 9A.08.020........................................................................................ 6 RCW 9A.32.030(1)(a)............................................................................... 6 Rules ER 401..................................................................................................... 77 ER 402..................................................................................................... 77 ER 702 .............................................................................................. 45,48
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ER 803(a)(3) ...................................................................................... 78,81 RAP 10.1(g)(2).......................................................................................... 6 Other Jurisdictions Harrelson v. State, 217 Miss. 887, 891, 65 So.2d 237 (1953)………….58 State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001) .................................. 92 State v. Gould, 271, Kan. 394, 23 P.3d 801 (2001) ................................ 92 State v. Kessler, 276 Kan. 202, 73 P.3d 761, 771-772, (2003)............... 92 State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001) .................................. 92 Other Tegland, Washington Practice, Courtroom Handbook on Washington Evidence (2003), at p. 334 ...................................................................... 58 5B Karl B. Tegland, WASHINGTON PRACTICE, Evidence (4th ed., 2002), §803.14, page 2530 ................................................................................. 78 5C Karl B. Tegland, WASHINGTON PRACTICE, Evidence (4th ed., 2002), §803.11, page 2510 ................................................................................. 81 5B Karl B. Tegland, WASHINGTON PRACTICE, Evidence (4th ed., 2002), §803.12, page 2522 ................................................................................. 82 House Comm. on Judiciary, Fed.Rules of Evidence, H.R.Rep. No. 650, 93d Cong., 1st Sess., p. 13 (1973)........................................................... 78
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ASSIGNMENT OF ERRORS
ASSIGNMENT OF ERROR NO. 1 – ISSUE NO. I The trial court erred in denying the motion to suppress and admitting Daniel’s statements made to police in the “pre-interviews” because they were custodial statements made without the benefit of Miranda warnings [Error assigned to Findings of Fact 6 and Conclusions of Law 1-10] ASSIGNMENT OF ERROR NO. 2 – ISSUE NO. I The trial court erred in admitting Daniel’s later recorded statements after Miranda warnings because they were tainted by the “pre-interview” statement without Miranda warnings. [Error is assigned to Findings of Fact Nos. 7,8,9,11,12 and 13 and Conclusions of Law Nos. 1-10] ASSIGNMENT OF ERROR NO. 3 – ISSUE NO. II The trial court erred in allowing evidence of Daniel’s pre-arrest silence, which inferred guilt and violated his Fifth Amendment right to remain silent, shifting the burden of proof to him ASSIGNMENT OF ERROR NO. 4 – ISSUE NO. III The trial court erred in permitting FBI profiler Mark Safarik to testify regarding his interpretation of the crime as staged because Safarik’s testimony was not helpful to the trier of fact, is not accepted in any scientific community, and he lacks the qualifications to render “behavioral” opinions ASSIGNMENT OF ERROR NO. 5 – ISSUE NO. IV The trial court erred in allowing the prosecutors to engage in misconduct that denied Daniel a fair trial ASSIGNMENT OF ERROR NO. 6 – ISSUE NO. IV The prosecutor prejudiced Daniel by eliciting testimony that infringed upon his Fifth Amendment right to remain silent, inviting the jury to infer that he was guilty or he would have called the police during the investigation ASSIGNMENT OF ERROR NO. 7 – ISSUE NO. IV The prosecutor prejudiced Daniel by eliciting testimony that infringed upon his Sixth Amendment right to counsel, inviting the jury to infer that he was guilty or he would not have retained an attorney
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ASSIGNMENT OF ERROR NO. 8 – ISSUE NO. IV The prosecutor prejudiced Daniel by eliciting testimony in an attempt to have one defendant implicate the other in violation of the court’s pre-trial ruling and in violation of their constitutional right to confront witnesses ASSIGNMENT OF ERROR NO. 9 – ISSUE NO. V The trial court erred by allowing testimony as to Daniel’s lack of emotion and his demeanor at the scene of the crime and at the time of his arrest, which was impermissible opinion testimony that inferred Daniel’s guilt ASSIGNMENT OF ERROR NO. 10 – ISSUE NO. VI The trial court erred by admitting evidence of Daniel’s ownership of guns that were unrelated to the commission of the crime ASSIGNMENT OF ERROR NO. 11 – ISSUE NO. VII The trial court erred in giving the case to the jury where the State’s evidence failed to show that Daniel was the person who killed his wife or that he was an accomplice to the person who killed his wife ASSIGNMENT OF ERROR NO. 12 – ISSUE NO. VIII The Trial Court Erred In Limiting Carlson’s Cross Examination Of State Witness Shawn McKillop ASSIGNMENT OF ERROR NO. 13 – ISSUE NO. VIII Daniel Was Denied His Constitutional Right To Confront Shawn McKillop Regarding His Extensive History Of Debilitating Bipolar Manic Mental Illness ASSIGNMENT OF ERROR NO. 14 – ISSUE NO. IX The Court Erred In Failing To Follow The Proper Procedures For Evaluating Evidence and Admitted Irrelevant and Unfairly Prejudicial Evidence that Deprived Daniel Of A Fair Trial And Infringed Upon His Right To Confront Witnesses ASSIGNMENT OF ERROR NO. 15 – ISSUE NO. IX The court erred in ruling that Lisa Carlson’s “State of Mind” was relevant and Admissible
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ASSIGNMENT OF ERROR NO. 16 – ISSUE NO. IX The trial court erred in allowing testimony regarding Lisa Carlson’s statement made 3 months before her death that she intended to file for a divorce after the bankruptcy
ASSIGNMENT OF ERROR NO. 17 - ISSUE NO. IX Lisa’s Statements To Her Mother That She Disliked Her In-laws And Disliked Living In Kapowsin Were Irrelevant And Inadmissible Under ER 803(2)(3)
ASSIGNMENT OF ERROR NO. 18 - ISSUE NO. IX The Court Erred In Admitting Notebooks and Documents Written By Individuals Other Than Dan Carlson Chronicling Lisa’s Deficiencies as A Wife And Mother When It Ruled The Writings Were Admissible As Evidence Of A “Concerted Family Effort” Establishing Dan’s Motive, When Such Evidence Denied Dan His Right To Confront Witnesses Against Him, Is Irrelevant And Unreliable
ASSIGNMENT OF ERROR NO. 19 – ISSUE NO. X Daniel Carlson Was Denied His Constitutional Right To Confront Witnesses When The Court Allowed The State To Present Statements Attributed To The Co-Defendant, Carol Carlson, Mandating His Conviction Be Reversed. ASSIGNMENT OF ERROR NO. 20 - ISSUE NO. XI The court erred in denying Daniel’s motions for a mistrial after the State intentionally elicited testimony from the father of the deceased designed to poison the jury by propounding a constitutionally prohibited opinion of guilt by one defendant regarding the other, and after the State intentionally elicited testimony infringing on constitutional right to counsel and his constitutional right to remain silent ASSIGNMENT OF ERROR NO. 21 - ISSUE NO. XII The Cumulative Effect of the Errors at Trial Denied Daniel his Constitutional Right to a Fair Trial ASSIGNMENT OF ERROR NO. 22 - ISSUE NO. XIII The trial court erred in illegally imposing an exceptional sentence where the facts to support the exceptional sentence were not submitted to a jury and proved beyond a reasonable doubt [Because the exceptional sentence is constitutionally invalid, error is assigned to all findings of fact and conclusions of law in support of the exceptional sentence]
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ASSIGNMENT OF ERROR NO. 23 – ISSUE NO. XIV The charging document is defective where the aggravating factors to increase punishment, an essential element of the crime charged, were not alleged
ISSUES PERTAINING TO ASSIGNMENT OF ERRORS
I Should the trial court have granted Daniel’s motion to suppress his statements made to police where the “pre-interview” statements were custodial statements made without the benefit of Miranda warnings and thus tainted the later recorded statements made after Miranda warnings? [Assigned Errors Nos. 1 and 2]
II Was Daniel unduly prejudiced when the trial court allowed
evidence of his pre-arrest silence, which inferred guilt and violated his Fifth Amendment right to remain silent, shifting the burden of proof to him? [Assigned Error No. 3]
III Did the trial court err in permitting FBI profiler Mark Safarik to
testify regarding his interpretation of the crime as staged where Safarik’s testimony was not helpful to the trier of fact, is not accepted in any scientific community, and he lacks the qualifications to render “behavioral” opinions? [Assigned Error No. 4]
IV Was Daniel denied a fair trial by prosecutorial misconduct where
the prosecutors deliberately elicited testimony that infringed upon his Fifth Amendment right to remain silent, inviting the jury to infer that he was guilty or he would have called the police during the investigation; deliberately eliciting testimony that infringed upon his Sixth Amendment right to counsel, inviting the jury to infer that he was guilty or he would not have retained an attorney; and deliberately eliciting testimony in an attempt to have one defendant implicate the other in violation of the court’s pre-trial ruling and in violation of their constitutional right to confront witnesses? [Assigned Errors 5-8]
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V Was Daniel unduly prejudiced when the trial court allowed testimony as to Daniel’s lack of emotion and his demeanor at the scene of the crime and at the time of his arrest, which was impermissible opinion testimony that inferred Daniel’s guilt? [Assigned Error No. 9]
VI Was Daniel unduly prejudiced when the trial court allowed
evidence of his ownership of guns, which were unrelated to the commission of the crime? [Assigned Error No. 10]
VII Was the evidence sufficient to prove beyond a reasonable doubt that
Daniel was the person who killed his wife or that he was an accomplice to the person who killed his wife? [Assigned Error No. 11]
VIII Was Daniel denied his constitutional right to confront Shawn
McKillop where the court precluded him from cross-examining Shawn regarding his extensive history of debilitating bipolar manic mental illness? [Assigned Errors Nos. 12 and 13]
IX Did the trial court err in failing to follow the proper procedures for
evaluating evidence and admitting irrelevant and unfairly prejudicial evidence that infringed upon his right to confront witnesses and deprived him of a fair trial? [Assigned Errors 1, 14, 16, 17, and 18]
X Was Daniel Carlson denied his constitutional right to confront
witnesses when the court allowed the state to present statements attributed to the co-defendant, Carol Carlson, mandating his conviction be reversed? [Assigned Error No. 19]
XI Did the court err in denying Daniel’s motions for a mistrial where
the State intentionally elicited testimony from the father of the deceased designed to poison the jury by propounding a constitutionally prohibited opinion of guilt by one defendant regarding the other, and after the State intentionally elicited testimony infringing on Daniel’s Fifth Amendment right to counsel? [Assigned Error No. 20]
XII Did the cumulative effect of the errors at trial deny Daniel his
constitutional right to a fair trial? [Assigned Error No. 21]
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XIII Is Daniel’s exceptional sentence illegal, requiring reversal for a
sentence within the standard range, where the facts to support the exceptional sentence were not submitted to a jury and proved beyond a reasonable doubt? [Assigned Error No. 22]
XIV Is the charging document defective where the aggravating factors
to increase punishment, an essential element of the crime charged, were not alleged? [Assigned Error No. 23]
STATEMENT OF THE CASE
Under RAP 10.1(g)(2), a party in a consolidated case may “file a
separate brief and adopt by reference any part of the brief of another.”
Appellant Daniel Carlson hereby adopts and incorporates by reference any
facts, argument, authorities, and attachments in Co-Appellant Carol
Carlson’s opening brief that are applicable to Daniel Carlson
Procedural History
On July 20, 2001, the State filed an information charging that
Daniel Dean Carlson and Carol J. Carlson, acting as accomplices with
premeditated intent, caused the death of Lisa Carlson, by shooting her
with a .22 caliber firearm, contrary to RCW 9A.32.030(1)(a) and RCW
9A.08.020; and invoking the provisions of RCW 9.94A.310 and RCW
9.94A.370 to add time to the presumptive sentence for being armed with a
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firearm, defined in RCW 9.41.010, during the commission of the crime.
CP 1-7.
On February 15, 2002, a CrR 3.5 hearing was held before the
Honorable Frederick B. Hayes. RP 37-197. At the hearing the court
heard testimony from Pierce County Sheriff Deputies Hausner (RP 37-47),
Ruder (RP 48-70), Hefty (RP 71-80), Lind (RP 82-102, Portman (RP 103-
126), Barnes RP 128-166), Guttu (RP 168-171). Daniel did not testify.
RP 172. Following testimony and argument by counsel, the court ruled
that the statements were admissible at trial. RP 194-197. Findings of Fact
and Conclusions of Law were entered on June 14, 2002. CP 10-15.
Beginning with the pre-trial motions on June 2, 2003, the
remainder of the trial proceedings were held with the Honorable Lisa
Worswick presiding. The court granted the defense motion to offer other
suspect evidence as it relates to Shawn McKillop. RP 416, 770.
However, the court excluded reference to his discharge from the military
due to his mental illness and the fact that he was so gravely disabled by his
bipolar disorder he received SSI. RP 466.
The Court ruled the State could introduce evidence of family ill
will towards Lisa, including an assault by Daryl Carlson. RP 479, 507.
The State argued that notes and other documents recovered from Carol’s
home were admissible, not because they established a conspiracy but
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because the evidence showed a “concerted family effort” (RP 837-38).
The court allowed this evidence with minor redactions. RP 850, 854 (red
notebook Ex. 11), 860 (Notes Ex. 12), materials (Ex. 2), (6 pages of notes
written by Daniel in November 1997 describing his parenting and Lisa’s
sexual promiscuity Ex.14) RP 864, (Note written by Daryl Ex. 15 ) RP
871, (Ex. 7 including information regarding contacting attorney).
The court excluded testimony regarding a life insurance policy on
Lisa’s life. RP 510. It also excluded reference to a bankruptcy filed by
Daniel and Lisa unless or until the state linked it to a divorce action. RP
513, RP 919. The State agree that pre-arrest silence with respect to law
enforcement was not admissible. RP 519. The Court also excluded
evidence of Daniel’s demeanor and silence to friends, family and co-
workers as more prejudicial than probative. RP 522, 810, 817.
The court permitted the State to present testimony by Mr. Dahm,
Lisa’s father, regarding statements Lisa made over a 3 plus month period
to the effect that after the bankruptcy she was going to file for a divorce
(RP 919), and her alleged intent to leave for Arizona with McKillop to
show Lisa’s state of mind. RP 927-928. Additionally, the court ruled that
Mrs. Dahm would be permitted to testify that Lisa said Carol said certain
things. RP 928.
9
On January 27, 2003, the court entered three rulings on the pretrial
motions. CP 106-109; 110-112; 113-115.
Objections and exceptions to the court’s instructions to the jury
were noted. RP 5899-5903; CP 192-216. On April 2, 2003, the jury
returned a verdict of guilty as charged and a special verdict finding that
the defendants were armed during the commission of the crime. RP 3-7;
CP 217-218.
A sentencing hearing was held on May 23, 2003. RP 1-71. The
standard range sentence, based on an offender score of zero, for the crime
of murder in the first degree is 240-320 months, and the State requested an
exceptional sentence of 600 months plus the five-year firearm
enhancement. RP 40. Defense requested a sentence of 240 months plus
the required 60-month enhancement. RP 46. The court imposed an
exceptional sentence of 380 months plus the five-year enhancement for a
total of 440 months. RP 69-70; CP 222-233. Findings of Fact and
Conclusions of Law for Exceptional Sentence were entered on May 23,
2003. CP 219-221. Notice of Appeal was timely filed. CP 234.
Substantive Facts Daniel and Lisa were married in February 1995. RP 2565. In July
1995, their twin boys, Christopher and Nicholas, were born. RP 2566.
Soon after the marriage Lisa stopped working, and in September 1997,
10
they moved into a trailer home in Kapowsin. RP 2568. The Carlson’s
home was a short distance, perhaps 150 yards, from Daniel and Lisa’s
home. RP 1916. According to Lisa’s mother, Donna Dahm, Lisa was not
happy living in Kapowsin next to the Carlson’s. RP 2568-2569.
In the summer of 1997, Lisa began a romantic relationship with
Shawn McKillop. RP 3691. Jody Shupe, Daniel’s sister, indicated that
their marriage was “rocky,” RP 3176, but Daniel did not want a divorce
because of the children. RP 3178. RP 3219, 3344, 3344-3345. Daniel
and Lisa signed an agreement to live together separately for the sake of the
children. RP 474, 2614-2615. However, the family kept a handwritten
journal to keep track of Lisa’s activities in case there was a divorce. RP
3219.
Generally, Daniel watched the children every day until he had to
leave for his job as an LPN at the Rainier School, about a 40-minute drive
from their home. RP 2698; Exhibit 188A (redacted audio version of
Daniel’s statement to police, which was played for the jury); Exhibit 190,
Transcript of Daniel’s Taped Statement to the Police, at p. 5. 1. Daniel’s
work shift was 2:15 p.m. to 10:30 p.m., and since Daniel’s parents also
worked at Rainier School, the three of them usually carpooled to work.
1 The redacted tape of the recorded interview was played for the jury and admitted into evidence. Exhibit 188A. The jury was allowed to follow the tape with a copy of the transcript (Exhibit 190), but it was not admitted into evidence. The transcript is provided to this court for convenience and will be referenced as Transcript of Tape.
11
Transcript of Tape at 4-5. After he got home from work in the evenings,
Lisa would go to Shawn’s house each night and return the next day in time
for Daniel to leave for work and then Lisa would watch the children while
Daniel worked. RP 3699. They only had one car, a black Dodge, which
Lisa kept unless Daniel made prior arrangements to use it. Transcript of
Tape at p. 5.
In the early morning hours of July 18, 1998, Lisa left the house
about 3:00 a.m. and took their computer with her to Shawn’s so that he
could work on it for her. Transcript of Tape at 4-5; RP 3700. Daniel was
home watching the twin boys. Transcript of Tape at 4. Around 11:00
a.m., July 18th, Carol went to Daniel’s house to deliver some milk and
dress the twins. RP 2314, 3704. Carol was off work that day and had
planned a day with her sister to go to garage sales, but her sister had to
cancel their plans. RP 5668-5670, 5677.
In response to Lisa’s request, Daniel called Shawn’s house about
11:00 a.m. July 18th to make sure that Lisa was awake and would be home
in time for him to get to work on time. Transcript of Tape at 4. Lisa left
Shawn’s about 12:30 to 12:45, and the drive home takes almost an hour,
RP 2698, so Lisa was late arriving home, RP 3699, which caused Daniel
to be late leaving for work. Transcript of Tape at 5-6. He called a co-
worker, Craig Patton, about 2:00 to tell him that he would be a little late
12
for work. RP 2916; Transcript of Tape at 5. Craig was present when
Daniel signed in at work at 3:00 p.m. on July 18th. RP 2916, 5494-5495.
Later in the afternoon, about 5:30, Tina Thompson was driving to
her parents home, which is located across the road from Daniel’s home,
and when she passed Daniel’s home, she notice a white 4-door car in the
front left-hand part of the driveway. RP 5432-5433. The door to the
house was open, and car doors were closed. RP 5435. Around 7:30 that
evening, Tina heard gunshots. RP 5435. When she left her parents about
8:30-8:45, she saw the same white car at Daniel’s parked in the back part
of the driveway, with the side door of the car open, and the front door of
the house still open. RP 5437.
At approximately 8:00 p.m., Daniel received a page from his
mother telling him that the 3-year old twin boys had walked down to her
house about 5:45 p.m., and although she had tried to reach Lisa by phone,
she got no answer and eventually left a message for Lisa on the answering
machine.2 RP 1894, RP 4130. Since Carol could not reach Lisa, she
asked Daniel to come home and find out what had happened. RP 1894;
Transcript of Tape at 9-10. Carol did not feel free to go to the house
when Lisa was there because Lisa had previously gotten a restraining
order against Carol’s husband Daryl. RP 1441, Transcript of Tape, a 11. 2 The State stipulated that the call from Carol to Daniel at Rainier School was made at 8:04 p.m. RP 4130.
13
The twins were still at Carol’s, and Daniel stopped by there first
before going over to his house. RP 3221, Transcript of Tape at 12. When
he walked into the door about 9:00 p.m., he saw Lisa lying on the couch.
RP 1894. Daniel, who is an LPN, moved a table by the couch to the
center of the room to permit room for him to check Lisa’s pulse and
condition. RP 1894-1895. Finding no pulse, Daniel called 911. RP
1895; Transcript of Tape at 3.
Officers Hausner, Hefty, and Ruder were dispatched to Daniel’s
home at approximately 9:00 p.m. RP 1405, 1437, 1811. The paramedics
arrived about the same time. RP 1438, 1464. Upon arrival, Officer
Hausner saw Daniel inside the house, still on the phone to 911, and
motioned for him to come outside and stay with Officer Ruder while
Officer Hausner went inside the home. RP 1405-1406. Officer Hauser
observed that Lisa was lying on the couch and covered in blood on her
chest and head; she was partially nude from the waist down and was
holding a “sexual device” in her hand. RP 1407. The device appeared to
be the control to a vibrator, which was connected to a wire under a blue
blanket covering her midsection. RP 1409, 1478, 1488, 1547. The
paramedic observed that the blood appeared to be coming from a small
hole in her forehead around the temple area, and he could determine no
signs of life. RP 1476, 1487.
14
Officer Hausner noticed that the house was “kind of messy,” the
back door was slightly ajar, and some of the drawers in the bedroom were
opened and items dumped out. RP 1406, 1412. Officer Hausner also
recalled seeing a TV that was turned on with a blank blue screen. RP
1498.
While Officer Ruder and Daniel were outside, Daniel told the
officer about his mother calling him at work at 8:00 p.m. to tell him that
the twins had walked down to her house and that she been unable to reach
Lisa by phone. RP 1441-1442. In an interview by Officer Hausner later
in the evening, Carol confirmed her phone conversation with Daniel at
8:00 p.m. RP 1417-1418. She also told the officer that Daniel and Lisa
had a troubled marriage; Lisa “slept around a lot,” and “there was a
contentious divorce process going on.” RP 1552.
While talking with Carol, Officer Hausner asked her about a gun
that Daniel mentioned in the 911 call, saying that he had taken the gun to
her house. RP 1413, 1417. Carol opened the safe where the gun was kept,
and Officer Hausner retrieved a 9 mm pistol. RP 1417.
Detective Tom Lind arrived on the scene after the other officers
and was present while the scene was videoed and photographs taken. RP
1858, 1561. Prior to entering the house, Detective Lind went to the patrol
car and spoke with Daniel, who repeated what he had told Detective
15
Ruder. RP 1892, 1894-1895. Daniel also consented to a search of his
house. RP 1895. Three spent .22 caliber casings were found at the scene,
and Daniel’s Marlin .22 rifle was retrieved from Carol’s house. RP 1816,
2121, 2126, 4029.
After searching the residence, Detective Lind went to Detective
Karr’s patrol car for a “pre-interview” with Daniel. 1920. After the “pre-
interview,” Daniel agreed to have his statements recorded while they sat in
Detective Karr’s patrol car. RP 1921. Daniel told Detectives Lind and
Karr that he found his wife lying on the couch with a pillow under her
head, a blue blanket covering her lower half, blood was on her face, and
she was holding the control to a vibrator sex toy in her hand. RP 4032,
Transcript of Tape at 13-14. After Daniel checked and could not find a
pulse, he immediately called 911.
In response to the officers question as to whether Daniel owned
any firearms, Daniel told them that he had a 9mm pistol and a .22 rifle,
which had a broken triggering mechanism, and that both guns were kept at
his mother’s house. Transcript of Tape at 17. Daniel also told the police
that he had purchased a .22 caliber handgun at a gun show at Discount
Sports World about 7 months ago, but the gun was not operable, so he
took it to a gunsmith who worked on it, and it operated for a while, but he
16
put away until the next gun show when he took it back and traded it for
some ammunition. Transcript of Tape at 19; RP 2067.
Detective Portman was also at the crime scene in the early morning
hours of July 19th, after Detectives Karr, Lind, and Barnes had already
spoken with Daniel. RP 2352, 4376. According to Portman, he and
Daniel “struck up a conversation.” RP 4377. He acknowledged that he
led the conversation in order to obtain information from Daniel. RP 4447.
They “discussed” the subject of divorce, and he said Daniel indicated “he
was looking into it, but his wife didn’t want one because she didn’t want
to lose – want him to have custody of the children.” RP 4378. Portman
recalled that in the “discussion of motive,” Daniel said he had a motive to
kill his wife but he did not kill her. RP 4378. In the evening of July 19,
2004, Daniel voluntarily responded to the detective’s request for an
additional interview by Detectives Portman, Barnes, and Guttu at the
Sheriff’s headquarters. RP 4384. At this unrecorded interview, Detective
Barnes accused Daniel of killing his wife. RP 2406.
The medical examiner, John Howard, determined that Lisa’s death
was caused by multiple gunshot wounds. RP 5034. Her death was
recorded as occurring sometime in the afternoon of July 18, 2004. RP
5035. According to Dr. Howard, there was no scientific way to narrow
down the specific time of death. RP 5035.
17
Forensic investigator Hilding Johnson (referred to as Skip Johnson
in the transcript) was at the crime scene on July 18th and collected
evidence, including the three spent .22 caliber casings; the answering
machine, a Marlin.22 caliber rifle with a clip of five rounds and one spent
casing; the video tape found in the VCR; and black jeans, sweat pants and
a while towel from the laundry room. RP 2974, 2980-2985. Search
warrants were obtained for both Daniel’s home and Carol’s home, and the
warrants were executed on July 22, 1998. RP 1977, 2292.
During the search on July 22nd, Johnson collected water from the
washing machine and the trap of the washing machine. RP 2986. Johnson
examined only a few items for fingerprints, and none of the items
examined contained fingerprints belonging to Daniel or Carol. RP 3002-
3003, 3010-3021, 3031-3038. The blue blanket over Lisa’s body was
seized on July 22nd, and was not examined for trace evidence. RP 3027-
3028. A latent fingerprint was found on the sexual toy but was determined
to have no comparison value. RP 2970-2971.
Alan Johnson is a forensic technician with the Pierce County
Sheriff’s Department who testified in the defense case. RP 5458. He was
not asked to go to the Carlson residence to search for latent fingerprints,
but he was given certain items to examine. RP 5460. He was asked to do
a search for prints on the battery inside the sex toy but not the sex toy. RP
18
5460-5461. Johnson found a fingerprint on the battery of the sex toy,
and after comparing it with Lisa’s and Daniel’s fingerprints, Johnson
determined that the fingerprint on the sex toy battery belonged to Lisa. RP
5460-5463. Other items he was asked to examine were the three shell
casings found at the scene, and the silver box and a flowered tin box found
in Lisa’s bedroom, which had previously been examined by Skip Johnson.
RP 5465-5469. Alan Johnson found only Lisa’s prints on the flowered tin
box; no prints were found on any of the shell casings. The two latent
prints found on the silver box did not belong to Lisa, Daniel or Carol, and
after running the fingerprints through the Automatic Fingerprint
Identification System, the two fingerprints could not be identified. RP
5466, 5468-5470.
The State retained Rod Englert, a private consultant from
California, to provide expert testimony on blood spatter. RP 5056-5057,
5064. Mr. Englert had not examined the crime scene, and his testimony
and opinion were based on photographs, certain reports, work performed
by Steve Wilkins, Tom Lind, and Charles Vaughn, who investigated the
scene of the crime, and photographs Englert took of the prosecutor and
Detective Lind re-enacting the scene of the crime. RP 5212-5235; 5238-
6260.
19
Vaughn, who works in the area of trace evidence and blood spatter
analysis with the Washington State Patrol Crime Lab, testified in the
defense case. RP 5597. Vaughn, along with his supervisor, Terry
McAdam, went to Daniel’s residence for examination of the blood spatter.
RP 5600-5601. It was Vaughn’s opinion that some of the photographs
relied on by Englert as showing blood did not, in fact, look like blood to
him, and he would not have been able to make the determination that it
was blood only from those photographs. RP 5603-5622.
Mark Safarik testified for the State as an expert in the field of
behavioral analysis in homicide cases. RP 2738. Safarik currently works
with the FBI behavioral “analyzing unit.” RP 2739. He is not a
psychologist, a forensic pathologist or a medical doctor. RP 2749.
According to Safarik, there are three types of behavior: (1) M.O.
behavior, which is what the offender believes will make his crime a
successful crime; (2) Ritualized behavior, which is need-driven behavior;
and (3) Staging behavior, which is purposeful, intentional behavior at a
crime scene done to redirect the investigation away from the offender. RP
2752-2755. Safarik testified that the methodology he uses in analyzing
behavior is generally accepted in the field of crime scene investigation by
a group called International Criminal Investigative Analysis Fellowship,
which is a group that grew out of the FBI profiling section. RP 2750.
20
In September 2002, Safarik was asked to analyze the crime scene
in this case. RP 2760-2761. Safarik was never at the crime scene, RP
2770; rather, he was requested to review crime scene photos, autopsy
reports, investigative reports, witness statements, and reports by other
forensic experts. RP 2761-2762. In his investigation from the photos and
reports in the instant case, Safarik looked for inconsistencies, things that
do not match the forensic evidence, and the absence of behaviors. RP
2768. Noting various inconsistencies from the photos of the crime scene,
RP 2777-2788, it was Safarik’s opinion that the behavior in Lisa’s
homicide fell into the category of “staging.” 2815-2825. He indicated
that of the over 3000 homicide cases he has reviewed, there was a small
percentage of staging – perhaps 30-50, and the staging involved in Lisa’s
murder fell somewhere in the middle of the continuum from low or no
staging. RP 2816-2829.
Matthew Noedel examined the .22 caliber bullets taken from Lisa’s
body, as well as the Marlin .22 caliber rifle loaded with 6 cartridges and
one fired cartridge case. RP 3053, 3055-3058. The Marlin rifle was
inoperable, so Noedel repaired the rifle so that he could test fire it. RP
3063. He determined that Daniel’s Marlin .22 rifle could not have fired
the bullets found in Lisa’s body or at the scene. RP 3065-3066, 3088.
The three shell casings found at the scene near Lisa’s body were all fired
21
from the same gun, but Noedel could not determine the type of firearm.
RP 3071-3072. He found a defect on the top reflector portion of a floor
lamp from the scene, which appeared to be consistent with bullet damage,
but he could not determine what the caliber would be. RP 3073-3074.
The .22 caliber cartridges found at Carol’s residence were Remington .22
caliber long rifle unfired cartridges and were the same brand and same
bullet design as the six cartridges submitted with the Marlin .22 rifle,
which were different than the cartridges found at the scene. RP 3077.
One of the items taken during the search on July 22nd was the
computer that Lisa and Daniel used. RP 2296-2297. Lisa’s boyfriend,
Shawn McKillop, worked on the computer from time to time. RP 3697.
Shawn testified that Lisa came to his house every night, usually between
12:30 a.m. and 1:30 a.m. RP 3699. She would wait until after Daniel
came in from work so that he could watch the children, and she would
then stay at Shawn’s until Daniel had to go to the work the next day. RP
3699. Shawn and Lisa also communicated daily via computer chats and
email. RP 3693. Sometime after midnight on July 18th, Lisa drove over to
Shawn’s and brought her computer for him to repair. RP 3700.
According to Shawn, he worked on the computer the rest of the night until
9:30 or 10:00 a.m., July 18th, deleting files and installing a couple of
programs that Lisa wanted. RP 3701. He deleted Netscape and upgraded
22
from Windows 95 to Windows 98. RP 3702. Shawn also erased the ICQ
program from Lisa’s computer the morning of July 18th. RP 3859.
Shawn recalled that Daniel called Lisa about 11:00 a.m., and after
Shawn and Lisa had sexual intercourse, Lisa left for home about 12:30 to
12:45 p.m., which was almost an hour’s drive from Shawn’s house in
Lakewood. RP 3696, 3706. Shawn was aware that Lisa would not get
home in time for Daniel to get to work on time because Daniel had to
leave at 1:30. RP 3789.
After Lisa’s death, Shawn gave the police some 30-40 pages of
internet chat messages between him and Lisa, which he said covered the
last six months of their relationship except the week prior to her murder.
RP 3710, 3740. Shawn said he and Lisa quarreled a lot, and these
arguments were reflected in their computer chats . RP 3714-3720. For
example, in the chat on July 6th, Lisa expressed her unhappiness with him,
her lack of trust in him and told him to leave her alone. RP 3764-3767.
According to Shawn, he and Lisa had a big argument by chat on July 7th ,
and Lisa “was a might upset,” but she still came to his house and stayed
overnight. RP 3719-3720. He said because of Lisa’s computer problems,
their last computer chat was on July 10th, but they continued to
communicate by “phones, emails,” and she continued to go to his house
nightly. RP 3711, 3722.
23
Shawn acknowledged he did not tell the police that he had not
chatted with Lisa on the computer the week prior to her death due to her
computer problems. RP 3752-3753, 3755. He also acknowledged he had
previously stated that he spoke to Lisa by chats no less than two or three
times a night, and he did not see how that would have changed in the week
prior to her death. RP 3753-3754. Later, Shawn testified that he
continued to talk with Lisa on the computer until the approximate time of
her death, using a program called Dreamland. RP 3899.
Shawn was aware that Lisa communicated by chats over the
internet with Keith Axelman and was aware that Keith was one of Lisa’s
boyfriends. RP 3811. He thought it was “possible” he had looked at the
chats between Lisa and Keith. RP 3812. Shawn and Lisa had discussed
her relationship with Keith, and Shawn recalled Lisa said she loved Keith
as a friend. RP 3812, 3833.
According to Shawn, Lisa was leaving Daniel, and Shawn and Lisa
were going to drive to Arizona on the afternoon of July 18th after Lisa
returned from visiting her mother. RP 3696, 3702-2703. Lisa had
scheduled an appointment to meet with her mother at 3:00 in the afternoon
on July 18th. RP 2580-2581. Shawn told the police that when Lisa left
his place at 12:41 p.m., he unplugged his phone, went to bed and slept
until 8:30 p.m. RP 3786. He testified that he never talked with Lisa after
24
she left his house, and he did not know about her death until he received a
call from Lisa’s father at 1:30 a.m. on July 19th. RP 3707.
Shawn owned a 1984 Audi, which he described as beige color. RP
3696, 3788. He also owned a .357 revolver. RP 3813. Shawn’s
stepsister, Lisa Day, testified that prior to Lisa’s death she overheard
Shawn mention that he was holding a .22 caliber gun that he was keeping
for his friend, Randy Belknap. RP 5576-5582. Shawn said he had no
recollection of holding a .22 gun for Randy. RP 3830.
Rebecca Ehrasman was a close friend of Lisa’s and they had been
together two or three days before Lisa’s death. RP 5537-5538. The two
had a lot in common since they were both living separately with their
husbands, had children the same age, and they both lived next to their in-
laws. RP 5543. Rebecca was aware that Lisa was in a relationship with
another man, but Lisa told Rebecca that she did not intend to marry him.
RP 5544-5545. At one time, Lisa told her that she had planned to divorce
Daniel, but in their last visit together, Lisa told Rebecca that she was
considering staying with Daniel and trying to work out their situation
because it would be easier on the children. RP 5547, 5551.
In November 1998, Frank Clark, a criminal investigator with the
Pierce County Prosecutor’s Office, examined Lisa’s computer, specifically
looking for chat emails and particular names. RP 3367. Clark removed
25
the hard disk from Lisa’s computer, copied it to a tape and then restored
the tape to another hard disk for the examination. RP 3368. Clark used a
software program that automatically searches all the files and recovers
deleted files and looks for “slack,” which is that part of the computer that
is not is filled with data. RP 3369. He copied all of the data onto a floppy
disk to save the original for further examination. RP 3370. The computer
was used primarily for communication: bulletin board and chats. RP
3372. The identified users of the computer were Lisa and Daniel. RP
3375, 5640.
Clark determined that Lisa was the identified user on the computer
for ICQ chats between just after midnight and prior to 3:15 a.m. on July
18th, and then it was turned off. RP 3375-3377. It was turned on again
shortly after 6:00 a.m. and between 6:00 a.m. until shortly after 9:00 a.m.
on July 18th, a large number of files were deleted; the operating system
was deleted and reinstalled; Netscape and a navigator were deleted and not
reinstalled; and a number of chat files and modem files were reinstalled
after the operating system was reinstalled. RP 3372-3378. Windows 98
had been installed, files were overwritten on the hard drive and dates and
times changed. RP 3379. In reviewing the Netscape navigator history, it
showed that Lisa and Daniel both had used the Netscape navigator from
April 11, 1998 until July 18th. RP 5641-5643.
26
According to Clark, in the afternoon of July 18th, the computer was
turned on again at 3:39 p.m. and turned off at 4:18 p.m. RP 3379. He
determined that the computer was booted up to Windows, then on to the
MCI Internet connection, and from there Microsoft.com was accessed for
an Infoseek search, and four Netscape web pages were accessed. RP
3379-3380. At that time, Clark believed that the clock on the computer
was 47 minutes fast, RP 3402, and that the activity on the computer may
have been set for automated tasks in the afternoon. RP 3500. After
talking with Shawn McKillop in December 1998, Clark decided his
findings were corroborated. RP 3382, 3500.
In July 2002, Clark provided the data he had retrieved from the
computer to the defense expert, Marcus Lawson, for examination. RP
3385, 3458. As a result of Mr. Lawson’s findings, Clark examined the
computer again with an updated Software (Encase), and was able to
determine that the user on the afternoon of July 18th had gone through 12
steps on the computer. RP 3438-3443. After this second examination,
Clark agreed with Mr. Lawson that a person was operating the computer
between 3:39 p.m. and 4:18 pm. on July 18th and that the computer was
not set for automated tasks. RP 3492-3509. Clark acknowledged that
whoever hooked up Lisa’s computer in the afternoon would have to have
a certain amount of knowledge of computers. RP 3509..
27
In the 2002 report, Clark still noted that the clock on the computer
was 47 minutes fast. RP 3510. In January 2003, Clark met with Mr.
Lawson, after which he examined the computer a third time. RP 3523.
On this third effort, Clark discovered he was wrong, and the clock was not
47 minutes fast; rather he believed it was 13 minutes slow. RP 3523-
2525. After the 2002 examination, Clark reported that someone had
deleted the ICQ chat icon from the computer in the afternoon, but after the
third examination in 2003, he did not know whether the icon had been
deleted. RP 3527.
Clark reported in 2002 that Netscape programs were deleted in the
morning and not reinstalled on the computer in the afternoon. RP 3528.
After the 2003 examination, Clark found that Netscape, which was deleted
in the early morning hours, was an older version and whoever was
downloading Netscape that afternoon was attempting to upgrade it to a
newer version. RP 3556.
Later in his testimony in the defense case, Clark stated that the
ICQ icon was deleted in the morning, created again in the afternoon and
then moments later deleted RP 5647-5650. On cross by the State, Clark
says it was his own opinion that based on the time difference between
when the shortcut to the ICQ was deleted, at 4:10:14 p.m. and the new one
created seconds later at 4:10:22, it appeared to be an automated process,
28
not human intervention, but he could not be sure because he could not
reproduce the program. RP 5652-5654, 5656. Then on redirect by
defense, he said he needed to correct that because the MCI internet link
was last written at 4:04:44, prior to the deletion of the shortcut link at
4:10:44, a difference of 6 minutes, which allowed enough time to
[manually] delete an icon. RP 5657-5658.
Thereafter, the State called Clark as a “rebuttal” witness. He then
testified that the deletion of the icon had nothing to do with the MCI
internet link, the 6 minute interval had nothing to do with the icon
deletion, and it was his opinion that the deletion of the ICQ icon was an
automated task. RP 5844. He returned to his previous testimony that an
ICQ icon had been created moments before it was deleted in the afternoon
and that human intervention was not required. RP 5847-5848.
Among the items taken from Daniel’s home during the search was
the telephone answering machine. RP 4239. Bruce Koenig was retained
by the State to analyze the answering machine and the cassette tape. RP
3959. Koenig is a private consultant involved in analyzing audio and
video tapes to determine whether there has been an alteration. RP 3954.
There were four messages on the audio tape that Koenig was asked to
analyze. RP 3964-3966. Koenig had been informed by the police that a
witness had reported calling and leaving a particular message on the
29
answering machine about 6:15 p.m. July 18th. RP 3979. According to
Koenig, he found no evidence of this call on the tape. RP 3979-3980.
His explanation was that after the first and second message, the next
message started immediately and did not have the usual 5 or 6 second
break, and the only way that could have occurred is if somebody took the
micro-cassette out of the answering machine, put it in a different
answering machine, rewound it to the beginning, and returned it to the
original answering machine. RP 3981-3985, 4007-4008. Koenig said that
there was about a 40-second gap between the greeting “Leave a message,
yeah” and the first incoming call and then the end of the first message to
the second message was almost immediate. RP 3991. He also stated that
the answering machine would terminate an incoming message if it was
more than 4 minutes long or if there was a silence for 7 seconds. RP 4004.
In September 2001, Karen Lindall, a forensic scientist with the
Washington State Patrol Crime Lab was asked to examine oral and vaginal
swabs from Lisa to determine the presence of semen RP 4863, 4866.
After identifying semen on the vaginal swab, she obtained blood samples
from Shawn and Daniel to determine the source of the semen. RP 4867.
Lindall was unable to obtain a conclusive DNA profile from the semen
donor. RP 4868-4869. She also examined a pair of sweatpants belonging
to Lisa, and underwear, a white T-shirt, black jeans and black sweatpants
30
purportedly belonging to Daniel, and a towel. RP 4871-4872, 4878.
Another lab had already subjected the items to Luminol testing. RP 2932-
2936, 4875. Lindall found no blood on the underwear, black jeans or the
black sweatpants or the T-shirt found in the dryer. RP 4880-4881, 4896-
4897, 4910-4914. She determined that Lisa was not the source of the stain
on the towel. RP 4873, 4878, 4914-4915. After her testing was
complete, Lindall returned the physical items on November 27, 2001. RP
4887.
In December 2001, the Pierce County Prosecutor’s Office retained
Alan Keel, a criminalist at Forensic Science Associates in Richmond,
California, to examine the evidence that Lindall had examined. RP 4580,
4706-4707. Keel was given the oral and vaginal swabs from Lisa to
obtain a DNA profile. RP 4580, 4590-4591. From the vaginal swabs,
Alan determined a number of sperm available, which was sufficient to go
forward with the genetic analysis of the sperm source. RP 4591. His next
step was to delete the female contribution or the non-sperm DNA from the
remaining sperm cells. RP 4592. Using a commercial manufactured kit to
produce a DNA profile from the DNA source, he obtained a genetic
profile for Lisa from the oral swab. RP 4593-4599.
Keel had received a blood sample from Shawn McKillop, and from
the vaginal swab, Keel determined the Shawn was a source of the semen
31
found in Lisa’s vagina. 4594-4605. Keel also received a blood sample
from Daniel Carlson, and Daniel was eliminated as a source of the semen
in Lisa’s body. RP 4607.
Mr. Keel was told that the items he had been given to examine for
DNA had gone through the washer and dryer. RP 4729. Keel also
examined the towel that had been found in the laundry room, and he
determined that there were “reddish-brown, yellowish-type stains,” but
after looking at them microscopically, he did not attempt any genetic
analysis. RP 4610. He did “presumptive testing” for blood on the towel,
which resulted in a finding that it was consistent with blood. RP 4610-
4613. He did not attempt to extract DNA from the towel because the
presumptive test indicated that the blood present on the towel was at a low
level and it would be fruitless to attempt DNA testing. RP 4613-4614.
According to Dr. Keel, the presumptive test is not absolutely proven; it’s a
test that exploits a particular property of blood, but that property is also
found otherwise in nature. RP 4614. The presumptive tests in this case
were slow to react and were weak. RP 4714. Since two other people in
the crime lab examined the towel, Mr. Keel acknowledged that the
“yellowish” stains could have been caused by Luminol if used in the
previous testing for blood. RP 4709, 4911.
32
In analyzing the containers of water samples taken from the
washing machine and drain trap of the washing machine, Keel did a
microscopic examination, and he got no result. RP 4616-4619. He then
performed the “presumptive testing” and detected no blood in the trap; a
low level of blood was detected in the water from the basin of the washing
machine, but he was not able to detect or obtain any DNA. RP 4619-
4620.
The underpants (a pair of briefs), found in the laundry room were
tested by the presumptive test, and only one stain indicated the presence of
blood. RP 4621-4629. Dr. Keel then extracted DNA from the briefs, and
the only stain showing the presence of blood fit the profile of the DNA
from Daniel. RP 4630-4632, 4645-4646, 4649-4651. Other blood present
was too diluted to get any results. RP 4651-4652. Because the surface of
the briefs were “dingy” yellow, Keel believed they had been sprayed with
Luminol. RP 4717. In general, Keel had a weak reaction for blood for the
presumptive test on the briefs. RP 4718. He determined that the source of
the stains on the briefs was all male DNA, and he eliminated Lisa as a
source. RP 4718-1720. There was no evidence of any female DNA. RP
4720. A semen stain was found on the briefs, which Keel determined to
be from Daniel, but he was unable to determine when the sperms cells
were deposited on the briefs. RP 4639-4642, 4730. Given the number of
33
sperm cells found, Keel acknowledged the briefs may not recently have
gone through the washer and drier. RP 4731.
As for the T-shirt found in the laundry room, Dr. Keel performed
the same presumptive test, and the results were that one of the stains was
positive for the presumption of blood RP 4653-4659. When the T-shirt
was examined in March 2001, Keel determined that the one area on the T-
shirt where DNA was detected was male DNA, and his thought was that
the DNA may be from one of the male children of Daniel and Lisa. RP
4724-4726. Keel was not provided a sample of the boys’s DNA, but he
did exclude Daniel, Lisa, Carol, and Shawn as the source of the DNA on
the T-shirt. RP 4727-4728.
ARGUMENT
I Daniel’s statements made to police in the “pre-
interviews” were custodial statements made without the benefit of Miranda warnings and should not have been admitted at trial, and lack of Miranda warnings for the “pre-interview” tainted the later recorded statements after Miranda warnings.
a. Daniel’s statements in the “pre-interviews”
were custodial statements without the benefit of Miranda warnings
The law presumes that the statements a suspect makes while in
custody were compelled in violation of the Fifth Amendment privilege
34
against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 447-458, 86
S. Ct. 1602, 16 L. Ed.2d 694 (1966). Custodial interrogation must be
preceded by advice to the accused that they have the right to remain silent
and the right to the presence of an attorney. Miranda, 384 U.S. at 479.
The Miranda warning is designed to prevent the State from using
presumptively coerced and involuntary statements against criminal
defendants. Connecticut v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93
L. Ed. 2d 920 (1987). The investigative process becomes accusatorial and
the need for warnings is triggered at the moment the inquiry "focuses" on
an accused in custody and the questioning is intended to elicit
incriminating statements. State v. Dennis, 16 Wn.App. 417, 421, 558
P.2d 297 (1976), citing Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d
977, 84 S. Ct. 1758 (1964). To be admissible under Miranda, statements
elicited by questioning a suspect who is in custody or "otherwise deprived
of his freedom of action in any significant way" must be preceded by the
now familiar warnings. State v. Dennis, 16 Wn. App. at 421, quoting.
Miranda v. Arizona, supra at 444. Miranda has been interpreted to mean
that, if the facts and circumstances are such that a reasonable man,
innocent of any crime, would believe he is in custody or that his freedom
of action has been restricted in any significant way, no further questioning
may take place in the absence of the warnings. Dennis at 421.
35
Daniel contends that the court erroneously admitted his “pre-interview
statements on July 18, 1998 and July 19, 1997 because the statements
were the result of a custodial interrogation conducted without Miranda
warnings. To permit the State to enter into evidence statements made
without Miranda warnings conflicts with Daniel’s State and federally
guaranteed constitutional rights.
On July 18, 1998, Carlson was directed to sit in a patrol car and to
remain at the scene. RP 39, 49 (Ruder had Daniel sit in the patrol car), RP
50 (Daniel in backseat of patrol car while an officer stood outside near
him and Ruder told him he had to wait and talk to detectives when they
arrived), RP 57 (Hausner directed Ruder to take Daniel to patrol car), RP
73 (Hefty told Daniel to “hang out and “assist”), 74 (Hefty sat with Daniel
in car), RP 78 (If Daniel had tried to leave Hefty would have alerted
detectives), RP 79 (Knew Daniel was a possible suspect), RP 84 (Daniel
asked if could walk down to mothers and Lind told him to stay on scene).
He remained at the crime scene for over 4 hours. He was questioned at the
scene of the incident by Ruder (RP 65), Hefty (RP 74-75, 78, 79), Lind
(RP 102), Portman (RP 105) before being asked to give a taped recorded
interview while he was seated in the backseat of a patrol car. RP 85.
Detective Lind talked to him for about an hour before he turned on the
tape recorder. RP 102. He was not informed of his Miranda rights in the
36
“pre-interviews” on July 18, 1998 by any of the officers. RP 59, 80, 101.
While being questioned at the scene of the crime, Carlson was not under
arrest; however, as one officer testified, Carlson was not free to leave
either, and if Carlson had tried to walk away, the officer would have
stopped him and if he had struggled he would have handcuffed him. RP
58, 59. Carlson was not only told to remain at the crime scene but was
seated in the backseat of a patrol car with an officer nearby. RP 49, 50,
57, 74, 85.
Since Daniel’s “pre-interview” statements to detectives Hefty,
Ruder, Portman, and Lind were made during custodial interrogation
without the benefit of Miranda warnings, his statements should have been
suppressed. State v. Rainey, 107 Wn.App. 129, 139, 28 P.3d 10 (2001)(the
testimonial production of evidence should be suppressed if done while in
custody in the absence of Miranda warnings). Thus, Finding of Fact 6 and
Conclusions of Law 1-10 are in error.
b. Daniel’s statements, both recorded and unrecorded, following Miranda warnings were tainted by the custodial statements made prior to Miranda warnings and should not have been admitted
Statements obtained subsequent to an initial, unconstitutionally
obtained statement, is inadmissible as `fruit of the poisonous tree.' See
Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d
37
441 (1963). The post-Miranda statement is necessarily `tainted' by the
illegally obtained pre-Miranda statements. State v. Lavaris, 99 Wn.2d
851, 857-58, 664 P.2d 1234 (1983). The post-Miranda statement will only
be admissible where an `insulating factor' separates the subsequent, post-
Miranda statement from the taint of the previously illegally obtained
statements. Lavaris, 99 Wn.2d at 860.
Here the statements obtained on July 18, 1998 and all statements
thereafter were tainted by the unconstitutionally obtained “pre-interview”
custodial statements on July 18, 1998; thus, all of his statements should
have been suppressed. [Error is assigned to Findings of Fact 7, 8, 9, 11,
12 and 13 and Conclusions of Law 1-9 are in error].
II Daniel was unduly prejudiced when the trial court allowed evidence of his silence to infer guilt, which violated his Fifth Amendment right to remain silent and shifted the burden of proof to him
The Fifth Amendment to the United States Constitution guarantees
that “no person…shall be compelled in any criminal case to be a witness
against himself,” which is applicable to the states through the Fourteenth
Amendment. Griffin v. California, 380 U.S. 609, 619, 85 S. Ct. 1229, 14
L.Ed. 2d 106 (1965). 3 “The right against self-incrimination is liberally
construed.” State v. Easter, 130 Wn.2d 228, 236, 922 P2d 1285 (1996), 3 The Const. Art. I, Sec. 9 privilege against self-incrimination provides the same degree of protection as the Fifth Amendment. State v. Easter, 130 Wn.2d at 235.
38
citing Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95
L.Ed. 1118 (1951). “It is intended to prohibit the inquisitorial method of
investigation in which the accused is forced to disclose the contents of his
mind, or speak his guilt.” Easter, 130 Wn.2d at 236.
“An accused right to silence derives, not from Miranda, but from
the Fifth Amendment itself. The Fifth Amendment applies before the
defendant is in custody or is the subject of suspicion or investigation.”
State v. Easter, 130 Wn.2d at 238, citing Kastigar v. United States, 406
U.S. 441, 444, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).
“A comment on an accused’s silence occurs when used to the
State’s advantage either as substantive evidence of guilt or to suggest to
the jury that the silence was an admission of guilt.” State v. Lewis, 130
Wn.2d 700, 707, 927 P.2d 235 (1996). “Moreover, the State may not
elicit comments from witnesses or make closing arguments relating to a
defendant's silence to infer guilt from such silence.” State v. Easter, 130
Wn.2d at 236; See Parkhurst v. State, 628 P.2d 1369, 1381 (Wyo.), cert.
denied, 454 U.S. 899 (1981)("forbidden statements are reversible error
where the prosecution has used a defendant's silence as a means of creating
an inference of guilt").
The right to silence exists prior to arrest, the purpose being “to
make the government obtain evidence on its own, and to ‘spare the
39
accused from having to reveal, directly or indirectly, his knowledge of
facts relating him to the offense or from having to share his thoughts and
beliefs with the Government.’” Easter, 130 Wn.2d at 241, citing Doe v.
United States, 487 U.S. 201, 213, 108 S.Ct. 2341, 101 L. Ed. 2d 184
(1988). The State bears the burden of showing a constitutional error was
harmless. Easter, 130 Wn.2d at 242.
Here, in pre-trial motions, defense moved to preclude the State
from offering testimony regarding pre-arrest silence. RP 519. In
response, the prosecutor stated that “the State has reviewed the cases cited
by Mr. Tolzin and couldn’t agree more that pre-arrest silence in the case of
police is inadmissible, and it would be improper for the State to elicit, and
we do not intend to.” However, over objections by the defense, the court
allowed the State to elicit answers from Police Officers Barnes, Karr,
Lind, and Portman that Daniel had not telephoned them in the six months
after Lisa’s death. RP 2297-2301, 4049-4052, 4278, 4439. Daniel had no
obligation to call or contact the police in any manner. He has an absolute
right to remain silent. Although trial court granted the defense motion in
limine to preclude any evidence regarding his pre-arrest silence, [Court’s
Ruling on Pretrial Motions in Limine, No. 9], the State ignored the Court’s
ruling and deliberately elicited the testimony.
40
First, during the testimony of Detective Barnes, the State was
asking questions concerning Barnes’s contact with Daniel at Rainier
School on December 1st. RP 2297. The question was: “Did he make any
statements to you that day, December 1st, about why he hadn’t contacted
the police? RP 2290-2298. After overruling Daniel’s objection that such
a question was a comment on his right to remain silent and shifted the
burden to him to prove his innocence, the court allowed the State to repeat
the question and elicit the answer that Daniel told him a co-worker, Judy
Jones, advised him that he should not contact the police. RP 2309.
Second, during the testimony of Detective Karr, the State asked
“During the course of the investigation, at least between July and six
months after the investigation, did you ever receive any telephone calls
from the defendant, Daniel Carlson? The answer was “No,” and Daniel
objected and asked that the last question be stricken. RP 4049. He argued
again Daniel’s Fifth Amendment right to remain silent was violated. RP
4050. The State argued this time that Daniel had made a statement to the
Grovers that he called the police several times and they would not return
his calls, and the State were “entitled to test the veracity of that statement
by asking this question.” RP 4050. What the State neglected to say was
that the subject was brought up by the State on direct examination of Dean
Grover, RP 3136, and again in the direct examination of Leigh Anna
41
Grover. RP 3604. The question by the prosecutor was “During your
conversations with the defendant Daniel Carlson, did he ever tell you
anything about whether or not he was contacting law enforcement about
the murder of his wife?” RP 3604. Daniel’s objections were overruled,
and Ms. Grover testified that she believed Daniel indicated he made
frequent calls to the police and she “got the impression that the calls were
not returned.” RP 3150-3151; 3604-3605. It is clear that the State was
setting up its own opportunities to “test the veracity” of the statement.
Third, the prosecutor asked Detective Lind the following:
“Directing your attention to the period of time between July 18th and some
6 months later, during that interval, did you ever receive any phone calls
from the defendant Daniel Carlson?” RP 4278. Daniel’s objection was
again overruled. RP 4278. Lastly, the prosecutor asked Detective
Portman “Between the period of July ’98 and approximately six months
later, did you ever receive any phone calls from the defendant Daniel
Carlson?” RP 4439. For the objections to the questions asked of
Detectives Lind and Portman, counsel was well aware that his objections
on a constitutional basis were overruled, so he tried simply objecting to
the fact that the questions had already been asked and answered. RP 4439.
Those objections were overruled as well. RP 4278, 4439.
42
The obvious inference the State intended to make, and did make,
was that if Daniel were innocent, he would be contacting the police to help
find his wife’s killer. However, using Daniel’s silence to the State’s
advantage to suggest to the jury that the silence was an admission of guilt,
is forbidden. See State v. Lewis, 130 Wn.2d at 707. "Forbidden statements
are reversible error where the prosecution has used a defendant's silence as a
means of creating an inference of guilt.” Parkhurst v. State, 628 P.2d 1369,
1381 (Wyo.), cert. denied, 454 U.S. 899 (1981).
Denial of Daniel’s constitutional right to remain silent denied him
his right to due process, and prejudice is presumed when due process is
denied. State v. Silva, 119 Wn.App. 422, 430, 81 P.3d 889 (2003), citing
United States v. Whitehead, 200 F.3d 634, 639 (9th Cir.2000); State v.
Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). The burden is on the
State to prove the error did not cause prejudice. State v. Easter, 130
Wn.2d at 242.
III The trial court erred in permitting FBI profiler Mark Safarik to testify regarding his interpretation of the crime as staged because Safarik’s testimony was not helpful to the trier of fact, is not accepted in any scientific community and he lacks the qualifications to render “behavioral” opinions
a. Crime Scene Analysis Designed To “Interpret” and “Explain” Behavior Is Not Accepted By Any Scientific Community
43
Washington courts adhere to the Frye test to determine the
admissibility of novel scientific evidence in criminal cases. State v. Jones,
130 Wn.2d 302, 306-07, 922 P.2d 806 (1996):
Admissibility of novel scientific evidence depends upon whether the evidence to be introduced is derived from a scientific theory or principal that “has achieved general acceptance in the scientific community”. The “general acceptance” test looks to the scientific community to determine whether the evidence in question has a valid, scientific basis. If there is significant dispute among experts in the relevant scientific community as to the validity of the scientific evidence, it is not admissible.
Despite numerous requests to readdress the standard by which novel
scientific evidence is admitted, the Washington Supreme Court has
consistently and repeatedly adhered to the Frye standard for admission of
novel scientific evidence. See, State v. Cauthron, 120 Wn.2d 879, 846
P.2d 502 (1993); Reese v. Stroh, 128 Wn.2d 300, 907 P.2d 282 (1995). In
Frye v. United States, 293 F. 1013 (1923) the court stated:
Just when a scientific principle or discovery crossed the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential forces of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
44
Frye, 293 F. at 1014. Written in 1923, this language has withstood the
tests of time and remains logical and vital. As explained by our Supreme
Court:
When admissibility of novel scientific evidence is at issue, Washington courts initially turn to the general acceptance test derived from Frye. The general acceptance standard serves as a shorthand method for judges in deciding whether novel scientific evidence, or evidence which is in the “twilight zone” between experimental and demonstrable stages” has a valid scientific basis, See Cauthron, 120Wn.2d at 887, 846 P.2d 502 (citing Frye, 293 F. at 1014). Once novel scientific evidence has been deemed admissible under Frye, the trial court must analyze whether that testimony is proper expert testimony under ER 702. Cauthron, 120 Wn.2d at 889-90, 846 P.2d 502.
Reese v. Stroh, 128 Wn.2d at 306.
Under the “general acceptance” standard, there is a two prong
inquiry: 1) is there a theory, which is generally accepted in the scientific
community, which supports the conclusion that the opinions of Safarik are
reliable and 2) Are there techniques, procedures or experiments generally
acceptable in the scientific community? Reese, 128 Wn.2d at 306
(citations omitted.)
As the court stated in Cauthron:
The core concern of Frye is only whether the evidence being offered is based on established scientific methodology. This involves both an accepted theory and a valid technique to implement that theory.
45
Cauthron, 120 Wn.2d at 889.
The need for acceptance in the scientific community versus the
law enforcement community was recently addressed in Seattle v. Clark
Munoz, Seattle v. Hall and State v. Jagla Slip Op. Wash. S.Ct. 74579-0 (7-
1-04) (en banc). As stated in the opinion, “If the citizens of the State of
Washington are to have any confidence in the breath-testing program, that
program has to have some credence in the scientific community as a
whole.” Slip Op. p. 5. The same reasoning applies here.
b. Safarik’s opinion was not admissible under ER 702 because it was not helpful to the trier of fact and his testimony was cumulative.
ER 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine an act in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
ER 702 allows opinion testimony from qualified experts if it will
assist the trier of fact to understand the evidence or determine a fact in
issue. However, if such testimony would be unduly prejudicial to the
party against whom it is offered, it is inadmissible. State v. Black, 109
Wn.2d 336, 348, 745 P.2d 12 (1987).
Defense objected to Safarik’s testimony. RP 2731. The court
permitted him to testify. RP 2739. Safarik testified his expertise was in
46
“crime scene analysis” in which he was “looking at the dynamics of the
interaction at a crime scene between the offender, the victim and the crime
scene itself.” RP 2747. Agent Safarik indicated during his testimony, his
analysis is an amalgamation of forensics, pathology, psychopathy,
aggressive behavior and anecdotal evidence garnered over his years as a
law enforcement agent. RP 2748. He is not a psychiatrist, psychologist,
forensic pathologist or medical doctor. RP 2748. His analysis is premised
on his review of crime scene photos, autopsy photos, autopsy reports and
general police reports. RP 2755. Despite these limitations, he testified
he “interprets” and “explains” behavior. RP 2749. Safarik testified that
his methodology of crime scene analysis is generally accepted in the field
of crime scene investigation and recognized by the International Criminal
Investigation Analysis Fellowship, a group that originated from the FBI
profiling section. RP 2750. There was no testimony that any scientific
community accepts the analysis.
Safarik did not employ any scientific methodology. His opinions
were based on his experience with and investigation into homicides.
Safarik did not engage in any methodology or scientifically valid
technique regarding the “interpretation” of “behavior.” His BS degree in
human physiology does not qualify him to render an opinion that explains
behavior of individuals at a crime scene. He is not a licensed psychologist
47
or psychiatrist, and his police training does not qualify him as being
capable of interpreting or explaining behavior, which necessarily involves
the assessment of mental states of the offender and victim. This type of
behavioral assessment is not accepted in any scientific community. In
fact, there is no scientific community that acknowledges that an expert
may, with scientific certainty, discern an offender’s or a victim’s mental
state and consequent behavior merely by viewing crime scene photos,
autopsy photos and reports and general police reports.
For example, in the sexual commitment context, this court has held
“[e]xpert opinion testimony concerning a person’s mental status is not
admissible unless the expert holds his or her opinion with reasonable
medical and psychological certainty. In re the detention of Twining, 77
Wn. App. 882, 891, 894 P.2d 1331 (1995) (citing State v. Martin, 14 Wn.
App. 74, 76-77, 538 P.2d 873 (1975)). This standard is equivalent to the
“more likely than not” and “reasonable certainty” standards applied in
other contexts. Twinings, 77 Wn App. at 891. The purpose of the
reasonable certainty standard is to measure the correlation between the
facts of a case and the expert’s opinion. In re Detention of A.S., 138
Wn.2d 898, 918 P.2d 1156 (1999). Because the testimony does not meet
the Frye test for admissibility it was error for the court to allow Safarik to
testify regarding his opinions that the crime scene was staged by someone
48
who knew Lisa Carlson and that the offender purposefully moved items to
specific locations in an attempt to create the impression the crime was
committed in the pursuit of financial gain. RP 2827. (Defense objection
overruled RP 2827).
The State argued Safarik’s opinion was admissible under the
authority of State v. Russell, RP 2803. The Russell court addressed the
very limited issue of whether an expert’s opinion on the rarity of posing a
victim was admissible under ER 702. Russell, 125 Wn.2d 24, 69, 882
P.2d 747 (1994). In that case, the court concluded testimony on the rarity
of posing was admissible and would be helpful to the trier of fact. Id. The
trial court found the proffered testimony was relevant because it went to
the identity of the perpetrator, and thus permitted opinion testimony that
the inference to be drawn by the trier of fact was that all 3 murders were
committed by the same person. The State’s experts testified on the basis
of VICAP and HITS data. The Washington State crime scene HITS data
was admitted under ER 702 without a Frye hearing based on the court’s
reasoning that the HITS system was “nothing more than sophisticated
record keeping system.” Thus, in Russell, the State’s experts relied on the
HITS database as support for the conclusion that posing was a rare
phenomenon. 125 Wn.2d at 70. Unlike Russell, Safarik’s opinion was
based on ambiguous and conflicting evidence.
49
In this case, there was no identifiable statistical database
supporting Safarik’s conclusion that the type of “staging” he identified at
the Carlson resident was rare, other than the unverifiable recollection of
the testifying officer. Additionally, the rationale underpinning the
admission of the opinion in Russell is missing. This case does not require
a comparison of other related crime scenes in order to establish the
identity of an offender. Here, there are no other murders between which a
comparison is being drawn nor did Safarik base his opinion as to the rarity
of the behavior and its meaning based on a review of verifiable data.
Thus, this court should refuse to expand Russell to permit behavioral
assessment testimony regarding single homicides. The Safarik testimony
focused on ascribing a state of mind and/or his impression of behavior
attributed to the offender and nothing in Russell permits that and other cases
forbid it. Farr-Lenzini, 93 Wn. App. at 464. The inescapable outcome of this
irrelevant testimony is that the State would not have offered it except for the
fact that State believed it applied to Daniel and Carol’s behavior and,
therefore, they are guilty as charged. Such an opinion invades the province
of the jury and undermines the Daniel’s right to have his case decided by a
fair and impartial jury as guaranteed by the 6th Amendment U.S.
Constitution. and art.1 section 21 Wash. Const. Farr v. Lenzini, 93 Wn.
App. at 459-460.
50
Moreover, as discussed above, Safarik is not qualified to give an
opinion based on the psychology of the suspected perpetrator. See State v.
Farr-Lenzini, 93 Wn. App. 453, 461, 970 P.2d 313 (1999). Agent Safarik
acknowledges he is not qualified to render a psychological opinion,
however he then attempts to explain Daniel’s offenses using a mixture of
psychological and forensic techniques. The behavior assessment analysis,
which the State’s expert engaged in, is not accepted in any scientific
community.
Accordingly, his testimony regarding the behavioral motivations of
an offender are outside his area of expertise and consequently, such an
opinion was not be helpful to the trier of fact and improperly admitted.
ER 403 provides that relevant evidence may be excluded if its
probative value is substantially outweighed by, among other things, the
danger of unfair prejudice, confusion of the issues and is cumulative. In re
Aqui, 84 Wn. App. 88, 929 P.2d 436 (1996) (waste of time cumulative).
Here, the testimony was cumulative since the State’s expert
disavowed any intention of presenting evidence of psychological motive
or planning, the evidence is essentially forensic and was fully presented in
the State’s case by its forensic technicians, crime lab scientists and
investigating detectives. This same testimony was presented to the court
via the state’s other witnesses. Just as Safarik’s testimony was excluded
51
in Commonwealth v. Johnson, 259 Va. 654, 529 S.E. 2d 769 (2000)
because the testimony was within the capability of the jury to assess the
similarities, so should this court exclude the opinion evidence.
c. The court erred in admitting the testimony of Mark Safarik because his “interpretation” and “explanation” of behavior at the crime scene is irrelevant.
In this case, the proffered evidence is not relevant. ER 401 defines
“relevant evidence” as evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” Under the evidence rules, irrelevant evidence denotes evidence
that does not logically tend to prove or disprove any material fact or
proposition. Evidence that at best produces only speculative inference is
irrelevant evidence. In Washington, “pseudo-expert” or so-called expert
testimony that rests on conjecture and speculation is inadmissible. Miller
v. Likins, 109 Wn. App. 140, 34 P.3d 835 (2001); Riccobono v. Pierce
County, 92 Wn. App. 254, 966 P.2d 327 (1998); Queen City Farms Inc. v.
Central Nat. Ins. Co. of Omaha, 126 Wn.2d 50, 104, 882 P.2d 703 (1994);
Farr-Lenzini, 93 Wn. App. at 461. Here Safarik’s opinion is based on
conjecture and speculation. Safarik does not purport to give any insight in
the motivations or the reasons ”why” an offender may undertake a course
52
of action, consequently, his analysis is not relevant to understanding the
evidence that will be presented by the State’s myriad of forensic experts
and investigating detectives. He does not claim to know whether his
theory is correct regarding any particular assessment he has made
regarding behavior. RP 2843-2853.
The relevant inquiry in this case is whether the State can prove
beyond a reasonable doubt that Carol and/or Daniel Carlson killed Lisa
Carlson. A “behavioral” interpretation of a possible offender’s actions
might be of interest to investigating law enforcement, but was irrelevant to
the jury’s determination of whether Daniel and Carol committed the
murder. Additionally, for this reason as well as the others discussed
above, the evidence lacked probative value.
IV Daniel was denied a fair trial by prosecutorial misconduct
“Prosecutorial misconduct may deprive the defendant of a fair trial
and only a fair trial is a constitutional trial." State v. Davenport, 100 Wn.2d
757, 762, 675 P.2d 1213 (1984). A prosecutor has a duty as an officer of the
court to seek justice as opposed to merely obtaining a conviction. State v.
Coles, 28 Wn. App. 563, 573, 625 P.2d 713 (1981), citing State v. Huson, 73
Wn.2d 660, 440 P.2d 192 (1968). In cases of professional misconduct, the
touchstone of due process analysis is fairness to trial, i.e., whether the
53
misconduct prejudiced the jury, thereby denying the defendant a fair trial
guaranteed by the due process clause. State v. Davenport, 100 Wn.2d 757,
675, 675 P.2d 1213 (1984).
For misconduct to be deemed prejudicial, the appellate court must
determine there is a substantial likelihood the misconduct affected the
jury’s verdict. State v. Crane, 116 Wn.2d 315, 333, 804 P.2d 10 cert.
denied, 501 U.S. 1237 (1991). An abuse of discretion exists when the trial
court’s exercise of its discretion is ma nifestly unreasonable or based upon
untenable grounds or reasons. State v. Stenson, 132 Wash.2d 668, 701,
940 P.2d 1239 (1997).
a. The prosecutor prejudiced Daniel by eliciting testimony that infringed upon his Fifth Amendment right to remain silent, inviting the jury to infer that he was guilty or he would have called the police during the investigation
As argued above, in Argument II, Daniel’s constitutional right to
remain silent was violated when the prosecutor asked each of the
detectives if they had ever received any phone calls from Daniel during
the course of the investigation, which was clearly intended by the
prosecutor to invite the jury to infer guilt from his pre-arrest silence. At
the pre-trial motion hearing, the prosecutor responded to the defense
motion to preclude any reference to pre-arrest silence, as follows:
54
MS. ROBNETT: Your Honor, the State has reviewed the cases cited by Mr. Tolzin and couldn’t agree more that pre-arrest silence in the case of police is inadmissible, and it would be improper for the State to elicit, and we do not intend to. With all due respect to Mr. Tolzin, the State is confused about what it is he’s trying to keep the State from eliciting. Certainly we don’t intend to elicit any testimony about the defendant’s pre-arrest silence, post-arrest silence and invocation of rights and any contact with the police.
RP 519. Even had the prosecutor not made this statement to the court, the
prosecutors in this case were very experienced prosecutors and were well
aware that eliciting testimony that Daniel had not called the police during
the investigation was most assuredly a comment on Daniel’s right to
remain silent. Evidence against Daniel was so scant in this case that the
prosecutors resorted to tactics that violated Daniel rights and denied him
of the fair trial that he is due. There can no legitimate reason for eliciting
testimony on his pre-arrest silence; it was done for the highly improper
reason of inviting the jury to infer guilt from his lack of contact with the
police.
b. The prosecutor prejudiced Daniel by eliciting testimony that infringed upon to his Sixth Amendment right to counsel, inviting the jury to infer that he was guilty or he would not have retained an attorney
55
Under the Sixth Amendment of the U. S. Constitution and
Wa. Const. art 1, Sec. 22, a defendant is guaranteed a right to be
represented by counsel in a criminal case.
[T]he right to be represented by counsel is among the most fundamental of rights. We have long recognized that ‘lawyers in criminal courts are necessities, not luxuries.’ Gideon v. Wainwright, 372 U.S. 335, 344 (1963). As a general matter, it is through counsel that all other rights of the accused are protected: ‘Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other right he may have.’ Schaefer, Federalism and State Criminal Procedure, 70 Harv. L.Rev. 1, 8 (1956).
Penson v. Ohio, 488 U.S. 75, 84, 109 S. Ct. 346, 102 L.Ed.2d 300 (1988). A criminal defendant's exercise of the Sixth Amendment
right to counsel does not constitute substantive evidence of the
defendant’s guilt, and evidence of the defendant’s exercise of the
right may not be admitted against the defendant. State v. Nemitz,
105 Wn.App. 205, 214-215, 19 P.3d 480 (2001). Therefore, the
State may not invite the jury to infer that the defendant is more likely
guilty because the defendant exercised his or her constitutional
rights. State v. Silva, 119 Wn.App. 422, 428, 81 P.3d 889 (2003).
The inference always adds weight to the prosecution’s case and is
always unfairly prejudicial. State v. Silva, 119 Wn. App. at 429,
citing State v. Nelson, 72 Wn.2d 269, 285, 432 P.2d 857 (1967).
56
In the instant case, the defense successfully moved pre-trial
to exclude any testimony about the Daniel’s efforts to retain an
attorney in any possible criminal case. [Order on Pre-trial
Motions, No. 6, 1-27-03, CP 113-115]. Nevertheless, during the
direct examination of Detective Barnes, the prosecutor deliberately
elicited from Barnes that Carol had asked the detective at the time
of arrest “if Daniel was able to contact his attorney.” RP 2321.
Defense objected because the prosecutor had intentionally violated
Daniel’s constitutional right to counsel, which suggested to the
jury that only guilty people hire lawyers. RP 2321. The
prosecutor wrongfully argued that the statement was admissible as
a statement by a party opponent. RP 2322. The court, in fact,
recognized the seriousness of the error and sustained the objection,
RP 2323, but the damage had already been done.
There was absolutely no probative value to the testimony
other than its inference that a guilty person retains lawyers, and to
invite the inference of guilt from the exercise of constitutional
rights is presumed to be prejudicial. State v. Nemitz, 105 Wn.
App. at 215.
57
c. The prosecutor deliberately elicited testimony in an attempt to have one defendant implicate the other in violation of the court’s pre-trial ruling and in violation of their constitutional right to confront witnesses
During the prosecutor’s direct examination of Mr. Dahm, the State
inquired as to whether Dahm had asked Daniel if his mother was involved.
RP 1634. Although the court sustained the defense objection because the
prosecutor was trying to get one defendant to implicate the other in
violation of the court’s pre-trial ruling and Bruton,4 RP 1636, the
prosecutor deliberately elicited this testimony, knowing that such a
question was highly improper and prejudicial.
V. The trial court prejudiced Daniel by allowing testimony as to his lack of emotion and his demeanor at the scene of the crime and at the time of his arrest, which was impermissible opinion testimony that inferred Daniel’s guilt
It is well established that “[n]o witness, lay or expert, may testify to
his opinion as to the guilt of a defendant, whether by direct statement or
inference.” State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987); State v.
Jones, 71 Wn. App. 798, 812-13, 863 P.2d 85 (1993), citing State v. Haga, 8
Wn App. 481, 492, 507 P.2d 159, review denied, 82 Wn.2d 1006 (1973).
An improper opinion as to the guilt of the defendant invades the province of
4 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968)(a defendant's right to confront witnesses against him is violated when one defendant's out of court statement refers directly or by inference to another defendant and incriminates the defendant.
58
the jury and is an error of constitutional magnitude. State v. Jones, 71 Wn.
App. at 813.
“No witness is permitted to express an opinion that is a conclusion of
law, or merely tell the jury what result to reach.” Tegland, Washington
Practice, Courtroom Handbook on Washington Evidence (2003), at p. 334;
ER 704. “If the question is put to an expert witness, the response is barred
under Rule 702 because it does not ‘assist the trier of fact to understand the
evidence or to determine a fact in issue.’” Id. Legal opinions on the ultimate
legal issue before the court are not properly considered under the guise of
expert testimony. Physicians Ins. Exch. V. Fisons Corp., 122 Wn.2d 299,
344, 858 P.2d 1054 (1993).
In State v. Haga, supra, an ambulance driver testified that the
defendant showed no signs of grief and was calm and cool when his wife
had just been strangled. Finding this an inadmissible opinion inferring guilt,
the Haga court cited Harrelson v. State, 217 Miss. 887, 891, 65 So.2d 237
(1953), where the conviction of the defendant was reversed because the
police officer’s testimony indicated the defendant did not exhibit the
expected signs of grief. The Harrelson court found that the admission of the
opinion of officers who investigated the crime was highly prejudicial
because the opinion of the sheriff, who is a prominent figure, conveyed to
the jury the impression that the sheriff thought the defendant was guilty,
59
which undoubtedly influenced the jury in reaching a verdict. Likewise,
courts have found it improper for an officer to testify regarding the
defendant's state of mind, State v. Farr-Lenzini, 93 Wn. App. 453, 970 P.2d
313 (1999), or to testify regarding a defendant's reaction to emotional news,
State v. Sargent, 40 Wn. App. 340, 552, 698 P.2d 598 (1985). Because
government officials or police officers are generally respected by the public,
their opinion may influence the fact finder and thereby deny the defendant a
fair and impartial trial. See State v. Carlin, 40 Wn.App. 698-703, 700 P.2d
323 (1985).
Here, the detectives who had spoken with Daniel just after the time
the crime was committed were asked by the State to testify as to their
observations of Daniel’s behavior or demeanor. Detective Hausner, who
was the first to arrive on the scene with Detective Ruder, stated that Daniel
“[a]ppeared very calm,” RP 1412; Detective Ruder offered his opinion
that Daniel seemed “maybe too helpful” and he “remained calm the entire
time.” RP 1443; Detective Lind said that Daniel “seemed relatively calm,
yet soft spoken.” RP 1893; Detective Karr testified that Daniel was “very
nervous, very fidgety. Early on his voice would break. Later on that
discontinued.” RP 4031; Detective Portman observed that Daniel
“appeared calm and collected.” RP 4379.
60
When the State asked Detective Barnes what his observations of
Daniel were, Barnes said “I just thought he was acting kind of unusual for
someone who had lost a spouse who had just been killed and he
discovered the body. He was somewhat light hearted. I think he asked a
lot of questions about law enforcement work, just – I thought they were
pretty inappropriate.” RP 2237. After defense objected as to what the
detective thought, the court sustained the object, but the State asked
Barnes to describe his demeanor and received the response that “I just
don’t think there was very much sorrow or grief about the loss of a wife.”
RP 2237. The court again sustained defense objection to what the
detective thought, but his opinion was already improperly before the jury.
When asked about Daniel’s demeanor at the time of his arrest, counsel’s
objection was overruled, and Detective said Daniel “looked at the floor
and was quiet.” RP 2319.
Aside from the fact that none of these officers were competent to
testify as to how Daniel reacts to any situation, it is evident that the State
was inviting the jury to infer from their testimony that Daniel’s lack of
emotion or demeanor indicates his guilt; otherwise, he would have been
crying and stricken with grief. See State v. Barr, Slip Op., Division III,
August 3, 2003
61
In Barr, the police officer testified that he had been trained to look
for verbal and nonverbal clues that someone was being deceptive. When
asked what signs or nonverbal cues he observed, the officer mentioned,
among other things, that his body movements, hitting the table and raising
his voice as if he were upset “didn’t seem genuine to me. It didn’t seem
like if he was really feeling these emotions and that worked up he would
be hitting the table and stuff.” Barr, Slip Op. at page 4.
On appeal, the Barr court noted that the officer’s testimony
“embodied an opinion by the officer that Mr. Barr had committed the
offense and the officer had the training to determine that Mr. Barr’s
statements and body language were proof that this was true. In other
words, the officer was testifying, as an expert, as to his opinion regarding
manifestations of Mr. Barr’s guilt.” Barr, Slip Op. at 5. Finding that the
testimony invaded the province of the jury by impermissibly commenting
on Barr’s guilt, the court reversed for a new trial.
Likewise here, testimony by several detectives regarding Daniel’s
demeanor and lack of emotion impermissibly commented on Daniel’s
guilt, which invaded the province of the jury and denied him a fair and
impartial trial.
62
VI. It was prejudicial error to admit evidence of Daniel’s ownership of guns that were unrelated to the commission of the crime
Evidence of weapons unrelated to the commission of a crime is not
probative, highly prejudicial and should not be admitted. State v. Jeffries,
105 Wn.2d 398, 412, 717 P.2d 722 (1986). In State v. Rupe, 101 Wn.2d
664, 683 P.2d 571 (1984), the State introduced evidence of the defendant’s
gun collection in an effort to portray Rupe as an extremely dangerous
individual who owned the guns only to kill people. Our Supreme Court
found that the evidence was irrelevant, prejudicial, and violative of Rupe’s
due process rights and a violation of his constitutional right to bear arms.
The court held that "[t]he State can take no action which will unnecessarily
'chill' or penalize the assertion of a constitutional right and the State may not
draw adverse inferences from the exercise of a constitutional right." Rupe,
101 Wn.2d at 705.
In the instant case, Matthew Noedel examined the .22 caliber
bullets taken from Lisa’s body and the Marlin .22 caliber rifle loaded with
6 cartridges and one fired cartridge case. RP 3053, 3055-3058. He
determined that Daniel’s Marlin .22 rifle could not have fired the bullets
found in Lisa’s body or the .22 shell casings at the scene. RP 3065-3066,
3088. Obviously, the 9mm owned by Daniel could not have been the
murder weapon. The murder weapon was never found.
63
In addition, over strong objection, the court allowed the State to elicit
testimony by Lisa’s father, Mr. Dahm, that three and one-half years prior to
Lisa’s death, even prior to their marriage, Daniel showed Mr. Dahm a small
caliber handgun. RP 1519; 1622-1633. Dahm did not know the caliber of
the small gun. RP 1610. On cross-examination, Dahm acknowledged that
Daniel later told him that he bought the 9mm to replace the small caliber
gun. RP 1687.
Daniel’s guns had absolutely no probative value since they were not
used in the murder of Lisa, and evidence of these guns was introduced for no
purpose other than to portray Daniel as a dangerous person who owned the
guns only to kill people.
VII. The State failed to prove beyond a reasonable doubt that Daniel Carlson was the person who killed his wife or that he was an accomplice to the person who killed his wife
Due Process requires the State to prove beyond a reasonable
doubt all the elements of the crime charged. State v. Acosta, 101 Wn.2d
612, 615, 683 P.2d 1069 (1984). Evidence is insufficient if no rational trier
of fact, viewing the evidence most favorably toward the prosecution, could
find the elements of the crime beyond a reasonable doubt. State v. Chapin,
118 Wn.2d 681, 691, 826 P.2d 194 (1992). Circumstantial evidence is no
less reliable than direct evidence, and criminal intent may be inferred from
64
conduct where “plainly indicated as a matter of logical probability.” State v.
Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). All reasonable
inferences from the evidence must be drawn in favor of the State and
interpreted most strongly against the defendant. State v. Salinas, 119 Wn.
192, 201, 829 P.2d 1068 (1992).
RCW 9A.08.020 (3) provides that “A person is an accomplice of
another person in the commission of a crime if: (a) with knowledge that it
will promote or facilitate the commission of the crime, he (i) solicits,
commands, encourages, or requests such other person to commit it; or (ii)
aids or agrees to aid such other person in planning or committing it;..” A
defendant is not guilty as an accomplice unless he has associated with and
participated in the venture as something he wished to happen and which he
sought by his acts to succeed. State v. Luna, 71 Wn. App. 755, 759, 862
P.2d 620 (1993); see also State v. Robinson, 73 Wn. App. 851, 8972 P.2d
43 (1994).
In the case at bar, viewing the evidence most favorably toward the
prosecution, as required, no rational trier of fact could have found that
Daniel was guilty of murdering his wife or that he was an accomplice to
her murder.
The State’s theory of the case was that Lisa planned to divorce
Daniel immediately after their bankruptcy was completed, and Daniel
killed her to avoid a divorce and possible loss of the custody of his
children. RP 919, 927; 5414.
65
First, Mr. Dahm testified that in April 1998, Lisa told him that she
planned to divorce Daniel immediately after the bankruptcy was
completed, but there was no evidence that Daniel knew that Lisa had these
plans. It is uncontroverted that Daniel and Lisa had signed a separation
agreement, and they had agreed to live separately to avoid a divorce for
the benefit of the children. Even if, for the sake of argument, a fear of
losing custody of the children might be a motive for murder, there is no
evidence that Daniel killed Lisa. Further, ma ny people may have a motive
for murder, but do not murder. For example, retired persons who have lost
all of their savings because of the criminal activity of executives managing
their funds may have a motive for murder, but that does mean they will
ever take the life of the persons responsible for the loss of their life
savings. Motive is not an element of murder, and simply proving a motive
for murder does not prove murder. The testimony by the State’s key witness was so inconsistent that no rational trier of fact could have believed it.
Shawn’s testimony was fraught with inconsistencies in key matters.
According to Shawn, when Lisa left his house on July 18th, she was going to
tell Daniel that she was leaving him, taking the kids, and going away with
Shawn. RP 3696, 3702-3703. His testimony was that Lisa was going to
visit her mother that afternoon, and when she returned, they were leaving for
Arizona. RP 3696, 3702-3703. However, Shawn told the police that he
unplugged his phone at 1:30 in the afternoon and slept until 8:30 p.m., and
he knew nothing about Lisa’s death until Mr. Dahm called him at 1:30 a.m.
66
RP 3707, 3786. It seems clear that no plans were in fact made for all of
them to leave for Arizona on the afternoon of July18th as he testified.
Further, because Shawn had no alibi at the time of Lisa’s death and
because the ICQ chats removed from Lisa’s computer clearly showed a
relationship filled with arguments and disagreements, it was in Shawn’s best
interest to attempt to paint the picture of a loving couple. Although the court
did not allow the ICQ chats to be admitted into evidence, defense counsel
was permitted to question Shawn about certain chats, the arguments those
chats reflected, and the mysteriously missing chats the last week before
Lisa’s death. RP 3714-3767. Shawn had given the police some 30-40 pages
of chat messages, which he said covered the last six months of their
relationship except the week prior to her murder. RP 3710, 3740. At trial,
Shawn claimed that because of Lisa’s computer problems, their last
computer chat was on July 10th. On the other hand, he testified that they
communicated by email that last week, without explaining how they could
do so if her computer was down. RP 3753-3754. He also testified that he
continued to talk with Lisa on the computer until the approximate time of her
death, using a program called Dreamland. RP 3899. RP 3711, 3722.
Shawn attempted to show that while he and Lisa had arguments, “it
was never anything that was irreconcilable.” RP 3717. We do not know
about the ICQ chats the week before Lisa’s death because they were not
provided, but even in the ones that were provided, it shows that the
relationship between Shawn and Lisa was anything but blissful. RP 3714-
3767. As late as July 6th and 7th, there were strong arguments between the
67
two in their computer chats, and Lisa told Shawn that she did not trust him
and wanted him to leave her alone. RP 3764-3767. It was the defense
theory of the case that Shawn was the person likely to have killed Lisa. RP
416-430, 770. Shawn had a powerful motive to create the image of a
happy, loving relationship between him and Lisa; he had no alibi for the
afternoon of July 18th other than his statement to the police that he unplugged
his phone at 1:30 and slept until 8:30 p.m. RP 3707, 3786.
Shawn’s story that he and Lisa intended to leave for Arizona together
on the afternoon she was killed is not supported by anything other than
Shawn’s inconsistent, unbelievable testimony. In fact, Lisa’s close friend,
Rebecca Ehrasman, spent time with Lisa just two or three days before her
death, and Lisa told her that she did not intend to marry her boyfriend, and
although she had previously planned to get a divorce, she intended to stay
with Daniel and work out their problems so that the children would have
both Daniel and her as parents. RP 5545-5551.
The timing of events shows Daniel could not have killed Lisa
According to Dr. Howard, Lisa’s death occurred sometime in the
afternoon of July 18th. RP 5035. Lisa left Shawn’s about 12:45 p.m., and
the drive from Shawn’s house in Lakewood to Lisa’s, and Daniel’s house in
Kapowsin was slightly under an hour. RP 3696, 3706, 3789. (Detective
Crawford measured the distance as 26.5 miles and driving time as 52
minutes. RP 2698). We do not know whether Lisa stopped anywhere, but
Daniel recalled that she mentioned she had been in heavy traffic, and she
arrived home about 2:15 p.m. Transcript of Tape at 6. Daniel left for work
68
five minutes later. Since he usually left for work at 1:30, he knew he was
going to be late, so he had called a co-worker, Craig Patton, about 1:45 p.m.
to tell him that he was running late for work. Transcript of Tape at 6. RP
2916. Daniel signed in at Rainier School in Buckley at 3:00 p.m. RP 2916.
The distance from Daniel’s home to the school is 24.41 miles, and the
driving time in light traffic is 39 minutes. RP 2698. In order to sign in at
3:00 p.m., Daniel had to make the drive, find a parking place, and get inside
to his place of work. Even if Lisa arrived home a few minutes before 2:15, it
defies logic to believe that in a period of 15 to 20 minutes, Daniel could
shoot his wife, position her and the sex toy, put a porno video in the VCR,
trash the place, wash his clothes and put them in the dryer, re-dress, and get
to work by 3:00 p.m.
Further, time clearly did not permit Daniel to murder Lisa after he
got home from work. It is uncontroverted that his mother called him at the
school at 8:04 p.m. On the way home, Daniel stopped by his mother’s to
check on the twins and got to his house slightly before 9:00 p.m.. Transcript
at 10; RP 3221. After checking Lisa’s pulse and finding none, he called
911. That call was placed at 8:59 p.m., and Daniel was still on the phone to
911 when the officers arrived at about 9:05. RP 1405-1406 . There simply
was no opportunity for Daniel to kill Lisa at any time on July 18th. In
addition, the State produced no evidence that Carol was at Daniel’s house at
any time after Lisa came home.
69
Expert testimony that the tape on the telephone answering machine was altered could not have been done by Daniel. Even if the State’s expert were correct that the tape in the answering
machine had been altered to erase an alleged phone call from Donna Dahm
at 6:00 to 6:20 p.m. on July 18th, Daniel could not have done it; he was at
work, and the State produced no evidence that Carol was there after 6:00,
altered the answering machine or even knew how to do it. In fact, the
evidence showed that after the twins came to her house about 5:45 p.m.,
Carol took the twins and went to a store to pick up a prescription RP 4026.
According to the expert, in order to erase a call on the tape, one
would have to remove the tape, put it in another answering machine to erase
it and then put it back into the original machine. RP 3982-3985. Even
assuming this was done, there was no evidence that it was done by Carol on
her answering machine. Certainly, it could not have been done by Daniel
since he was at work.
Evidence that someone used Lisa’s computer between 3:39 pm. and 4:18 p.m. on July 18th excludes Daniel as the user, and there was no evidence that Carol used the computer Much of the State’s evidence centered on the expert’s testimony
regarding the computer used by Lisa and Daniel. His testimony was
confusing, and he often contradicted himself in his findings. What the
evidence did show was that after Lisa arrived home from Shawn’s about
70
2:15 p.m., someone hooked up the computer, turned it on at 3:39 p.m. and
physically took twelve steps on it before turning it off at 4:18 p.m. RP 3438-
3443. The expert acknowledged that the computer had not been scheduled
for automated tasks as he originally believed; rather someone was physically
at the computer between 3:39 and 4:18 p.m. and whoever hooked up the
computer would have to have a certain amount of knowledge of computers.
RP 3492-3509. Daniel left for work about 2:20 p.m., and there was no
evidence that Carol knew anything at all about computers. In fact, her
daughter said the Carlson’s did not own a computer, and she had never
known of her mother using one. RP 3304-3305.
Logically, it was Lisa on the computer during that time or it could
have been Shawn. Shawn drives a light-colored, perhaps beige, 1984 car.
An older white car was seen by Tina Thompson in Lisa’s and Daniel’s
driveway when she drove by their home about 5:45 p.m., and the same car
was still there when she drove by the house again at 7:45 p.m. RP 5432-
5437. In any case, evidence that someone operated the computer between
3:39 p.m. and 4:18 p.m. clearly excludes Daniel as that person, and there was
not a shred of evidence that Carol used the computer or even knew how to
use one.
71
The mountain of expert testimony at trial produced no direct or circumstantial evidence that Daniel had anything to do with Lisa’s murder First the items of evidence seized from Daniel’s home were sent to
the Washington State Crime Lab to analyze for DNA. Karen Lindall could
find no blood on the clothing found in the dryer or laundry room, and she
specifically excluded Lisa as the source of the stain on the towel. RP 4880-
4881, 4896-4897, 4910-4914, 4914-4915. Even the State’s retained expert
could find none of Lisa’s DNA on any of Daniel’s clothing or the other items
tested. RP 4621-4652; 4718-4720; 4724-4726. Keel did find that Shawn’s
DNA was in the semen in Lisa’s body and specifically excluded Daniel as a
source of the semen. RP 4594-4605; 4607. Even if the “presumptive
testing,” which Alan Keel said is not absolute proof of the presence of blood,
RP 4614, showed that something bloody may have been washed in the
washing machine, he found no evidence it was Lisa’s blood. In fact, on the
T-shirt where the presumptive test showed the presence of blood, it turned
out to be unknown male DNA and Daniel and Lisa were specifically
excluded as the source. RP 4727-4728. The fact that Daniel works as an
LPN, he could often be exposed to blood, and there was no evidence to show
that any blood, diluted or not, belonged to Lisa.
Second, the expert testimony by Mark Safarik on the three types of
behavior in homicides should not have been admitted because of the reasons
72
argued above. See Argument III. But even allowing the testimony that
Lisa’s murder was staged shows only that fact and not who staged it, and the
evidence here does not show that Daniel staged anything. As he told
Officers Karr and Lind, he had no clue as to who killed Lisa. Transcript of
Tape at 23.
Third, the State’s expert testimony regarding blood spatter had no
relevant purpose to prove that Daniel or Carol killed Lisa, and it did not
produce such proof. No one disputed that Lisa was murdered, that she was
shot with a .22 caliber pistol, and that blood splattered on the walls and
ceiling. That testimony did nothing to prove that Daniel or Carol was the
perpetrator of the crime.
Evidence that Daniel owned two guns, both of which were proven not to be the murder weapon, and evidence that he previously purchased a .22 caliber handgun but got rid of it approximately 6 months prior to Lisa’s death is not direct or circumstantial evidence that Daniel killed Lisa Aside from the fact that evidence of weapons Daniel owned or
previously owned, which were excluded as the murder weapon, is irrelevant,
see Argument VI above, evidence that he purchased a .22 caliber handgun
some 7 months prior to Lisa’s death and got rid of the gun a month after he
purchased it, is clearly not direct or circumstantial evidence that he killed
Lisa. What the State was inferring to the jury was that Daniel was honest
with the police officers in voluntarily telling them that he had purchased a
73
.22 caliber handgun some 7 months prior to Lisa’s death, but he lied when he
said he got rid of it a month later. That makes little sense when Daniel had
no obligation to tell the officers anything about the gun at all, especially
when the gun was bought at gun show without any record of the purchase.
In sum, there was no direct evidence that Daniel was in any way
involved in the murder of Lisa. While circumstantial evidence is as valid as
direct evidence, there really were no circumstances from which the jury
could infer that Daniel was the killer. The evidence offered by the State was
anecdotal facts, not circumstances from which a rational jury could infer
guilt.
VIII The Trial Court Erred In Limiting Carlson’s Cross Examination Of State Witness Shawn McKillop Carlson Was Denied His Constitutional Right To Confront Shawn McKillop Regarding His Extensive History Of Debilitating Bipolar Manic Mental Illness
Under the Sixth Amendment to the Federal Constitution and Art. 1
sec. 22 (amend. 10) of the Washington Constitution, a criminal defendant
has the right to present all admissible evidence in his or her defense. State
v. Clark, 78 Wn. App. 471, 999 P.2d 964 (1995); State v. Maupin, 128
Wn.2d 918, 913 P.2d 808 (1996), Both the Sixth Amendment to the U.S.
Constitution and article I, section 22 of the Washington State Constitution
guarantee a defendant the right to confront and cross-examine the
74
witnesses against him. Crawford v. Washington, Slip Op 02-9410 (March
8, 2004) , 541 U.S. _____ (2004); Chamber v. Mississippi, 410 U.S. 284,
35 L. Ed.2d 297, 93 S. Ct. 1038 (1973): State v. Monson, 113 Wn.2d 833,
840, 784 P.2d 485 (1989);; State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d
514 (1983).
The opportunity to cross-examine witnesses is key to the
confrontation right. Monson, 113 Wn.2d at 840; Crawford, at 20. In
particular, exclusion of cross-examination to establish a witness’s bias,
credibility, prejudice, or hostility may violate a defendant’s Sixth
Amendment and Art. 1 sec. 22 rights.5 Where the witness sought to be
cross-examined is the State’s witness providing an essential link in the
prosecutor’s case, the importance of full and searching cross-examination
to disclose possible bias, prejudice, truthfulness, interest, or misconduct is
substantially increased. Haber v. Wainwright, 756 F.2d 1250, 1522 (11th
Cir. 1985). The right to confront arises out of the extreme importance of
conducting a thorough examination of witnesses who may have a
substantial incentive to cooperate with the prosecution. United States v.
Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). As aptly noted in
5 A witness may be examined as to particular facts tending to show the nature and extent of the hostility. State v. Robbins, 35 Wn.2d 389, 395-396, 213 P.2d 310 (1950); State v. Brooks, 25 Wn. App. 550, 552, 611 P.2d 1274 (1980); State v. Jones, 25 Wn. App. 746, 610 P.2d 934 (1980). Even greater latitude and specificity must be permitted where the conviction rest on the credibility of one witness. State v. Whyte, 30 Wn. App. 162, 165, 632 P.2d 913 (1981); State v. Tate, 2 Wn. App. 241, 247, 469 P.2d 999 (1970).
75
Lankford, the importance of such cross examination does not depend upon
whether some deal in fact exists between the witness and the State; rather,
what counts is whether the witness may be shading his or her testimony in
an effort to please the prosecution, or in this case for Shawn to protect
himself from prosecution. Id. at 1548; State v. Buss, 76 Wn. App. 780,
788 – 89, 887 P.2d 920 (1995).
Additionally, a witness’ ability to perceive and accurately relay
events is a critical factor that must be subject to searching cross-
examination. RCW 5.160.050. Mr. McKillop has a lengthy documented
history of debilitating bipolar disorder, a mental illness that affects his
memory and ability to perceive events. His mental illness is so severe that
it precluded him from gainful employment pretrial and was the basis for
his discharge from the United States military. RP 466 (regarding pretrial
SSI showing discharge from military). Bipolar disorder is a well
documented mental illness. United States v. McMurray, 833 F. Supp.
1454, 1480 (1993), reversed on other grounds, 245 F. 3d 682 (8th Cir.
2001)(bipolar disorder is a major mental illness).
A “bipolar” disorder is characterized by manic episodes. (Ex. 7,002: Diagnostic and Statistical Manual of Mental Disorders (Third Edition Revised) (DSM-III-R) at 214. These manic episodes are characterized by elevated, expansive, or irritable moods and “are sufficiently severe to cause marked impairment in occupational functioning or in usual social activities or relationships with others, or to
76
require hospitalization to prevent harm to self or others.” (Id.) . . . These episodes begin suddenly, and last from a few days to months. (Id.) There is often a need for involuntary hospitalization because of the poor judgment exhibited by the person during these periods of time. (Id.) The “most common complications of a Manic Episode are Psychoactive Substance Abuse and the consequences of actions resulting from impaired judgment, such as financial losses and illegal activities.” Id.
McMurray, 833 F.Supp. at 1481.
Here, the defense was precluded from challenging McKillop’s self
serving statements and his ability to accurately perceive and recollect
events through searching cross examination. The court’s limitation on the
cross-examination denied Daniel the constitutionally guaranteed right to
confront witnesses against him. Lilly v. Virginia,527 U.S. 116, 123-24,
119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) ("The central concern of the
Confrontation Clause is to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of fact." (quoting Maryland v. Craig,
497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)). Reversal is
merited when an error, such as improperly admitted hearsay evidence,
deprives the defendant of the right to confrontation, unless the error is
harmless. State v. Heib, 107 Wn.2d at 108; See also State v. Benn, 120
Wn.2d at 650. The prosecution bears the burden of proving that the error
was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475
77
U.S. 673, 684, 89 L.Ed.2d 674, 106 S.Ct. 1431 (1986); Chapman v.
California, 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967). An
error is not harmless beyond a reasonable doubt where there is a
reasonable probability that the outcome of the trial would have been
different had the error not occurred. Benn at 649, Chapman at 24. A
reasonable probability exists when confidence in the outcome of the trial
is undermined. Benn at 649 (quoting Bagley. The denial was not harmless
error because McKillop was a critical State witness and a potential
suspect.
IX The Court Erred In Failing To Follow The Proper Procedures For Evaluating Evidence and Admitted Irrelevant and Unfairly Prejudicial Evidence that Deprived Daniel Of A Fair Trial And Infringed Upon His Right To Confront Witnesses
a. Victim Lisa Carlson’s “State of Mind” Is Not Relevant And Thus Not Admissible
Only relevant evidence is admissible. ER 402. Relevant evidence
is defined as, “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” ER 401.
Decisions regarding the admissibility of evidence lie within the trial
court's sound discretion, and will not be reversed absent a showing of
manifest abuse of discretion. State v. Bourgeois, 133 Wn.3d 389, 399, 945
78
P.2d 11220 (1997). The trial court abuses its discretion when no
reasonable person would take the position it adopted. State v. Castellanos,
132 Wn.2d 94, 97, 935 P.2d 1355 (1997).
b. Testimony Regarding Lisa Carlson’s Statement Made 3 Months Before Her Death That She Intended To File For A Divorce After The Bankruptcy is Inadmissible
ER 803(a)(3) establishes a hearsay exception for expressions of
intent or plan. By its terms, the hearsay exception includes only
statements describing the declarant's own intent or plans, not those of
another person. The Report of the House Committee on the Judiciary
states, "[T]he Committee intends that the Rule be construed to limit the
doctrine of [Hillmon] ... so as to render statements of intent by a declarant
admissible only to prove his future conduct, not the future conduct of
another person." House Comm. on Judiciary, Fed.Rules of Evidence,
H.R.Rep. No. 650, 93d Cong., 1st Sess., p. 13 (1973). Further, the hearsay
exception includes only statements describing the declarant's then-existing
intent or plan. Id. The hearsay exception does not include statements
describing an intent or plan the declarant had at some time in the past
(with one exception relating to wills). 5B Karl B. Tegland, WASHINGTON
PRACTICE, Evidence (4th ed., 2002), §803.14, page 2530. Occasionally,
statements by the victim indicating an intent or plan will be relevant in one
way or another to the defendant's guilt or innocence, and will admissible
79
on that basis. For example, in a homicide or assault case in which the
defendant claims self-defense, threats by the victim may be admissible to
support the defendant’s claim. State v. Reuben, 156 Wash. 655, 287 P.
887 (1930) (threats of victim admissible on issue of self defense in a
homicide case to show deceased was the first aggressor).
Thus, a statement indicating a design or plan to do a specific act is
admissible to show that the act was probably done as planned. The rule is
often called the Hillmon rule, referring to the leading pre-rule case.
Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 12 S.Ct. 909,
36 L.Ed. 706 (1892). C.F. Doke v. United Pacific Insurance Co., 15
Wn.2d 536, 131 P.2d 436 (1942), affirmed, 15 Wn.2d 536, 135 P.2d 71
(1943), (In a civil case, the court held that a statement by the declarant that
he was going to a National Guard drill was admissible on the issue of
whether the declarant was on his way to a drill when he was injured); State
v. Powell, 126 Wn.2d 244, 266, 893 P.2d 615 (1995) (testimony that
defendant's wife said that she was going to go to friend's apartment to get
away from defendant was admissible in trial for murder of wife under state
of mind exception to hearsay rule to prove that wife acted in accordance
with her statement of her future intent).
However, the cases that have admitted such statements pertaining
to future intent have tightly proscribed the time period. In State v.
80
Terranova, 105 Wn.2d 632, 716 P.2d 295 (1986), the court permitted a
witness to testify that the decedent indicated he was going to meet the
defendant hours before the murder occurred. In State v. Powell, 126
Wn.2d 244, 893 P.2d 615 (1995), the court permitted two witnesses to
testify to statements made by the decedent in the two days preceding her
death regarding her intent to return to an apartment where her abusive
husband could be expected to be.
Lisa’s statements made three months before her death to her father
that she was planning to divorce Daniel after the bankruptcy are too
attenuated for admission even under Powell. To the contrary, her close
friend, Rebecca Ehrasman, testified that Lisa had confided in her that she
was not going to leave Daniel for McKillop, but rather wanted to ensure
the children had the benefit of both parents. RP 5547, 5551. Likewise, the
testimony established that neither Lisa nor Daniel knew that the
bankruptcy was completed, RP 4488, thus Lisa would not have known the
event she was waiting for before filing for a divorce, if that was what she
was planning to do, had occurred.
Again, the error here was not harmless. The State was using this
evidence to bootstrap the argument that this explains why Lisa’s plans to
leave Daniel and take the children came to a head on July 18, 1998.
However, there is evidence that directly contradicts these alleged
81
statements. First, there was no evidence Lisa was aware of the status of
the bankruptcy, and secondly, her close friend testified Lisa had changed
her mind and was not seeking a divorce. RP 5547. Finally, the State’s
case is weak. There is no direct evidence linking Daniel to the murder of
Lisa. See Argument VII, above. For these reasons the court erred in
permitting these stale and unreliable statements.
c. Lisa’s Statements To Her Mother That She Disliked Her In-laws And Disliked Living In Kapowsin Were Irrelevant And Inadmissible Under ER 803(a)(3)
The general rule is that the victim's statement describing their then
existing emotions or feelings is not admissible (even though within the ER
803(a)(3) exception to the hearsay rule) because the victim's state of mind
is irrelevant to the issue of whether the defendant committed the crime
charged. The connection between the victim's dislikes and the defendant's
guilt is too remote to justify admissibility. 5C Karl B. Tegland,
WASHINGTON PRACTICE, Evidence (4th ed., 2002), §803.11, page 2510.
See Powell, 126 Wn.2d 244 (in prosecution in which the defendant was
charged with murdering his wife, prosecution witnesses should not have
been permitted to recount wife's out-of-court statements that she thought
her husband was a drinker, a drug user, a violent person, and that she was
afraid of him; the court said that in a murder case, the victim's state of
mind is relevant only if the defendant claims accident or self-defense).
82
Thus, in many, if not most, criminal cases, the victim's state of mind will
be irrelevant and excluded on that basis. See 5B Karl B. Tegland,
WASHINGTON PRACTICE, Evidence (4th ed., 2002), §803.12, page 2522,
citing State v. Stamm, 16 Wn.App. 603, 559 P.2d 1, (1976), review
denied, 91 Wn.2d 1013 (1977). Similarly, Lisa’s alleged statements to her
family that she disliked living in Kapowsin and hated her in-laws are not
admissible because her state of mind is wholly irrelevant in this instance
and because they do not relate to any sort of future intent.
d. The Court Erred In Admitting Notebooks and Documents Written By Individuals Other Than Dan Carlson Chronicling Lisa’s Deficiencies as A Wife And Mother When It Ruled The Writings Were Admissible As Evidence Of A “Concerted Family Effort” Establishing Dan’s Motive, When Such Evidence Denied Dan His Right To Confront Witnesses Against Him, Is Irrelevant And Unreliable.
Until the Supreme Court decided Crawford v.
Washington, 541 U.S.___, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004),
hearsay statements made by unavailable declarants were admissible if an
adequate indicia of reliability existed, i.e., they fell within a firmly rooted
hearsay exception or bore a 'particularized guarantee of
trustworthiness.' Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L.
Ed. 2d 597 (1980), overruled by Crawford, 124 S. Ct. 1371 (2004).
83
In Crawford, the court held that admitting the tape recorded
statement the defendant's wife gave to police violated the defendant's
Confrontation Clause rights. Crawford, 124 S. Ct. at 1374. Under
Crawford, '{w}here non-testimonial hearsay is at issue, it is wholly
consistent with the Framers' design to afford the States flexibility in their
development of hearsay law . . . as would an approach that exempted such
statements from Confrontation Clause scrutiny altogether.' Crawford, 124
S. Ct. at 1374. But if testimonial hearsay evidence is at issue, the
Confrontation Clause requires witness unavailability and a prior
opportunity for cross-examination. Crawford, 124 S. Ct. at 1374.
As recently stated in State v. Orndorff, Slip Op. 29696-9-II
(8/3/04), Crawford did not comprehensively define 'testimonial.' The
court explained that the Confrontation Clause applies to witnesses who
'bear testimony' such as 'a 'solemn declaration or affirmation made for the
purpose of establishing or proving some fact.'' And this includes ''ex parte
in-court testimony or its functional equivalent--that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially.'' Crawford, 124 S. Ct.
at 1364 (citations omitted). The term also includes prior testimony at a
84
preliminary hearing, before a grand jury, at a former trial, and police
interrogations. Crawford, 124 S. Ct. at 1374.
The handwritten notes and documents were apparently kept to be
used at expected future divorce proceedings, and so they may fit into one
of these categories. They do appear to be affirmations made to establish
some fact and the writer’s may have expected the writings to be used in a
future domestic dissolution case. However, even if these writings are not
considered testimonial, they are still subject to the application of the usual
rules of hearsay exceptions and reliability analysis. There is no
recognized exception for “concerted family effort,” 6 as the State argued,
RP 837-838; thus the court erred in admitting them against Daniel.
Moreover, the court opined they were admissible to show “motive.”
There is no reason to believe these writings are reliable indicators of
Daniel’s motive to commit murder. There was no evidence suggesting
Daniel was even aware of the contents of the writings done by his father or
mother or sister.
Thus, even if the writings are not precluded by Crawford's
Confrontation Clause analysis, they are still precluded because they do not
fall within a firmly rooted hearsay exception and are not reliable.
6 After extensive research, no such exception was found.
85
X Daniel Carlson Was Denied His Constitutional Right To Confront Witnesses When The Court Allowed The State To Present Statements Attributed To The Co-Defendant, Carol Carlson, Mandating His Conviction Be Reversed.
The landmark case on the issue of an out of court statement of a
co-defendant is Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20
L.Ed.2d 476 (1968). Recently revisited and reaffirmed in Crawford v.
Washington, Slip Op. 02-9410 p. 22 (March 8, 2004); see also Gray v.
Maryland, ___ U.S. ___, 118 S.Ct. 1151, ___ L.Ed.2d ___ (1998). In
Crawford, the court held that admitting the tape-recorded statement the
defendant's wife gave to police violated the defendant's Confrontation
Clause rights. Crawford, 124 S. Ct. at 1374. If testimonial hearsay
evidence is at issue, the Confrontation Clause requires witness
unavailability and a prior opportunity for cross-examination. Crawford,
124 S. Ct. at 1374.
The Crawford court explained that the Confrontation Clause
applies to witnesses who 'bear testimony' such as 'a 'solemn declaration or
affirmation made for the purpose of establishing or proving some
fact.'' And this includes ''ex parte in-court testimony or its functional
equivalent--that is, material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect to be used
86
prosecutorially.'' Crawford, 124 S. Ct. at 1364 (citations omitted). The
term includes police interrogations. Crawford, 124 S. Ct. at 1374.
Clearly, Carol’s statements made to law enforcement fall under the
protection of the court’s ruling in Crawford.
Bruton holds that a defendant’s right to confront witnesses against
him is violated when one defendant’s out of court statement refers directly
or by inference to another defendant and incriminates the defendant. Gray
further addresses the inadequacy of redacting references to the co-
defendant who did not make the statement.
The introduction at trial of Carol’s statements, including her taped
statement to law enforceme nt, puts Carol in the position of being one of
Dan’s accusers. Although the court redacted a small portion of the taped
interview of Carol, the court overruled objections to other statements by
Carol (e.g.what Daniel told Carol that Lisa said about a divorce and
leaving with the children, erroneously admitted as statement by party
opponent). RP 1950-1968). 7 The court also overruled objection to
Officer Hannah’s testimony that in his conversation with Carol, she
mentioned problems Daniel had in the marriage and told Hannah that
Daniel “was at his wits end,” erroneously admitted as statement by party
opponent. RP 1807-1809. See Also Argument IV above (question
7 See transcript of Carol’s redacted taped statement, Exhibit 191.
87
whether Dahm asked Daniel if his mother was involved in the murder).
RP 1634-1664).
Under the sixth amendment to the U.S. constitution, Dan has a
right to confront accusers against him, including cross-examination.
Bruton v. United States, supra. Since Carol chose not to testify, as is her
right, Daniel was denied his right to cross-examine accusers against him.
The facts of this case mandate that the defendant’s conviction be
reversed because the admissions of statements attributed to Carol Carlson
conflict with Daniel Carlson’s Sixth Amendment right to confront
witnesses against him.
XI The court erred in denying Daniel’s motions for a mistrial after the State intentionally elicited testimony from the father of the deceased designed to poison the jury by propounding a constitutionally prohibited opinion of guilt by one defendant regarding the other, and after the State intentionally elicited testimony infringing on Daniel’s constitutional right to remain silent and his constitutional right to counsel.
The United States and Washington Constitutions entitle a criminal
defendant the right to a trial by an impartial jury. U.S. Const., Amend. 6;
Const., art. 1, section 22 (amend. 10); See Duncan v. Louisiana, 391 U.S.
145, 20 L. E. 2d 491, 88 S. Ct. 1444 (1968). The trial court should grant a
mistrial only when the defendant has been so prejudiced that nothing short
of a new trial can insure that the defendant will be tried fairly. State v.
88
Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). “In determining the
effect of an irregular occurrence during trial, we examine ‘(1) its
seriousness; (2) whether it involved cumulative evidence; and (3) whether
the trial court properly instructed the jury to disregard it.’” State v.
Johnson, 124 Wn.2d at 76, quoting State v. Hopson, 113 Wn.2d 273, 284,
778 P.2d 1014 (1989). A trial court's denial of a motion for a mistrial is
reviewed for abuse of discretion. State v. Lewis, 130 Wn.2d 700, 707, 927
P.2d 235 (1996).
Here, the State asked Mr. Dahm if he had ever asked Daniel
whether his mother was involved in Lisa’s death. RP 1634. The court
agreed that the question was improper because the State was trying to get
one defendant to implicate another in violation of Bruton. However, the
court denied the motion for a mistrial and instead instructed the jury to
disregard the question. RP 1626.
Later, during the direct examination of Detective Barnes, the
prosecutor deliberately elicited from Barnes that Carol had asked the
detective at the time of arrest “if Daniel was able to contact his attorney.”
RP 2321. Not only did the prosecutor violate the court’s pre-trial order to
exclude any testimony about Daniel’s efforts to retain an attorney in any
possible criminal case. [Order on Pre-trial Motions, No. 6, 1-27-03, CP 113-
115], the prosecutor deliberately violated Daniel’s Fifth Amendment right to
89
counsel, which suggested to the jury that only guilty people hire lawyers. RP
2321. Once again the court agreed, sustained the objection and gave an
instruction to disregard it. RP 2323, 2326.
Instructing a jury to forget what they have heard is not sufficient,
especially in a case such as this one where there is far less than
overwhelming evidence of guilt, and the infringement on his constitutional
rights was deliberately done by the State. In fact, this is precisely the type
of misconduct that necessitates a new trial because it is not the kind of
statement that can be cured by an instruction to disregard.
XII The cumulative effect of the errors at trial denied Daniel his constitutional right to a fair trial
Where the cumulative effect of trial errors is to deny the defendant
a fair trial, prejudice exists and the judgment will be reversed. State v.
Johnson, 90 Wn.App. 54, 950 P.2d 981 (1998); State v. Oughton, 26 Wn.
App. 74, 612 P.2d 812 (1980); State v. Coe, 101 Wn.2d 772, 789, 694
P.2d 668 (1984).
Here, Daniel was prejudiced by the trial court errors, as argued
above. Even if any one of the errors was not enough to deny Daniel a fair
trial, the cumulative effect of the errors materially affected the outcome of
his trial and his convictions should be reversed. State v. Coe, 101 Wn.2d
at 789.
90
XIII Under Blakely v. Washington Daniel’s exceptional sentence must be reversed because the facts necessary to support an exceptional sentence were not submitted to a jury and proved beyond a reasonable doubt
When a decision by the U.S. Supreme Court results in a “new
rule,” that rule applies to all criminal cases still pending on direct review.
Griffith v. Kentucky, 479 U.S. 314, 328 (1987); Schriro v. Summerlin,
Slip Opinion No. 03-0526 (June 24, 2004). In Blakely v. Washington, the
U.S. Supreme Court held that the rule of Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt,” applies to the facts necessary
to support an exceptional sentence under the Sentencing Reform Act
(SRA). Blakely. Slip Op. at 5. The Blakely court rejected the State’s
argument that there is no Apprendi violation where the exceptional
sentence does not exceed the statutory maximum, noting that “[o]ur
precedents make clear…that the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant.”
Slip Op. at 7. “In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but
91
the maximum he may impose without any additional findings.” Blakely,
Slip Op. at 7.
Since the SRA does not comply with the Sixth Amendment right to
have a jury determine the facts necessary to support an exceptional
sentence beyond a reasonable doubt, the Blakely Court found that any
exceptional sentence imposed under the SRA is unconstitutional. Blakely,
Slip op. at 9. Therefore, absent legislative action to comply with the
constitutional requirements, the maximum sentence a sentencing court
may impose under the SRA is the high end of the standard range. State v.
Ammons, 105 Wn.2d 175, 180-181, 713 P.2d 719, 718 P.2d 796
(1986)(the fixing of legal punishment for defendants is a legislative
function, and a sentencing court has no independent authority to set the
terms for punishment); State v. Monday, 85 Wn.2d 906, 909-910, 540
P.2d 416 (1975)(it is the function of the legislature and not the judiciary to
alter the sentencing process).
It is worth noting decisions by the Supreme Court in Kansas
following Apprendi and prior to the Blakely decision. In State v. Gould,
271, Kan. 394, 23 P.3d 801 (2001), the Kansas Supreme Court held that a
trial court has no authority under Apprendi to impose an exceptional
sentence under Kansas’s determinate sentencing scheme because neither
proof beyond a reasonable doubt nor a jury trial was required. Following
92
Gould, the court held in State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001)
that a defendant who admitted to the existence of sentencing factors as
part of a guilty plea could not be sentenced to an exceptional sentence
because the legislature had not granted authority to depart from the
presumptive range by any means other than provisions which had been
declared unconstitutional); see also State v. Kneil, 272 Kan. 567, 35 P.3d
797 (2001)(a defendant who pleads guilty does not waive his
constitutional right to have the jury determine whether the aggravating
factors supporting the departure were proven beyond a reasonable doubt);
and State v. Kessler, 276 Kan. 202, 73 P.3d 761, 771-772, (2003)(a district
court’s authority to impose sentence is controlled by statute; thus, where
the statutory procedure for imposing upward durational departure
sentences has been found unconstitutional, the court has no authority to
impose such a sentence).
In the instant case, the standard range sentence for Daniel’s crime
is 240-340 months. The trial court imposed an exceptional sentence of
380 months 8 based on the aggravating factor “That the post-mortem
activity with Lisa Carlson’s body caused extraordinary distress and grief
for her family. The activity was performed to suggest that she was
sexually releasing herself at the moment of her death.” Finding of Fact II. 8 The total sentence imposed was 440 months, which included 60 months flat time for the weapon enhancement.
93
The court also found that “the legislature did not consider these factors in
determining the standard range.” Finding of Fact No. II. However, the
facts the court relied on as reasons to support the exceptional sentence
were not found by a jury beyond a reasonable doubt. “As Apprendi held,
every defendant has the right to insist that the prosecutor prove to a jury all
facts legally essential to the punishment.” Blakely, Slip Op. at 17.
Because the sentence imposed by the court was unconstitutional,
Daniel’s exceptional sentence is invalid. The remedy is to remand the case
for sentencing within the standard range since there is no statutory provision
for impaneling a jury on remand to determine whether aggravating factors
sufficient to support an exceptional sentence exist. Until the legislature
fashions a provision for impaneling a jury to determine the aggravating
factors to support increased punishment, the only authority the trial court has
is to sentence within the standard range. Blakely, Slip Op. at 9.
Since the facts supporting Daniel’s exceptional sentence were
neither admitted by him nor found by a jury, his sentence violated his
Sixth Amendment right to trial by jury and is invalid.
XIV The charging document is defective because the aggravating factors to increase punishment above the standard range, an essential element of the crime charged, were not alleged.
94
Under Blakely, a jury must prove any aggravating factor that is
used to enhance punishment above the standard range beyond a reasonable
doubt; therefore, it seems clear that the aggravating factor becomes an
element of the crime charged. The Sixth Amendment and Const. art. 1,
Section 22 (amend. 10) require that a charging document include all the
essential elements of the crime charged, both statutory and non statutory,
so that the accused is informed of the criminal charge and will be able to
prepare and mount a defense at trial. State v. McCarty, 140 Wn.2d 420,
424-425, 998 P.2d 296 (2000).
In Apprendi, supra, the court held that any fact other than prior a
conviction, which increases the maximum penalty for a crime, must be
charged in an indictment, submitted to a jury, and proved beyond a
reasonable doubt. See State v. Goodman, 150 Wn.2d 774, 786, 83 P.3d
410 (2004)(because the statutory maximum sentence increased depending
on which controlled substance Goodman possessed, the identity of the
controlled substance was a “fact that increases the penalty for a crime
beyond the prescribed statutory maximum,” Apprendi, 530 U.S. at 490;
therefore, the prosecution was obligated to allege and prove the substance
Goodman possessed was methamphetamine).
If the necessary elements are neither found nor fairly implied in the
charging document, the court will “presume prejudice and reverse without
95
reaching the question of prejudice.” Goodman at 788, quoting State v.
McCarty, 140 Wn.2d at 425.
Because Daniel was never charged with any aggravating factor that
would justify an exceptional sentence, and since every fact that increases
the penalty of the crime must be pled in the charging document and
proved beyond a reasonable doubt by a jury, Apprendi, Daniel’s judgment
and sentence must be reversed. This is because he has been convicted of
the crime, and the charging document cannot now be amended to include
an essential element of the crime charged. See State v. Vanderpen, 125
Wn.2d 782, 789, 888 P.2d 1177 (1995), citing State v. Pelkey, 109 Wn.2d
484, 491, 745 P.2d 854 (1987)(an information may not be amended after
the State has rested its case in chief unless the amendment is to a lesser
degree of the same crime or a lesser included offense).
CONCLUSION
For the above reasons, Daniel Carlson respectfully requests this
court to reverse the trial court and dismiss his conviction with prejudice.
In the alternative, he requests this court to reverse and remand for a new
trial.
DATED this 11th day of August 2004.
Respectfully Submitted,
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Mary Kay High, WSB 20123 Pattie Mhoon, WSB 21495 ________________________ ______________________