Opinion
Nos. 30419-8-II; 30435-0-II.
May 10, 2006.
Appeals from judgments of the Superior Court for Pierce County, Nos. 01-1-03854-2 and 01-1-03853-4, Lisa R. Worswick, J., entered May 23 and 27, 2003.
Counsel for Appellant(s), William Richard Michelman, Attorney at Law, 7512 Bridgeport Way W # B, Lakewood, WA 98499-8377.
Mary Katherine Young High, Attorney at Law 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.
Counsel for Respondent(s), Donna Yumiko Masumoto, Pierce Co Prosec Atty Office, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
Reversed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Carol Carlson and Daniel Carlson appeal their first degree murder convictions for killing Lisa Carlson, Daniel's wife and Carol's daughter-in-law. We hold that Carol's conviction must be reversed for the following reasons: (1) the trial court erred in not suppressing documentary evidence police seized from Carol's house in violation of the Fourth Amendment; (2) the trial court erroneously admitted Daniel's testimonial hearsay statements, violating Carol's Sixth Amendment right to confront witnesses against her; (3) the State failed to prove a conspiracy to justify admitting Daniel's testimonial hearsay as Carol's adoptive admissions; and (4) the trial court erred in admitting Lisa's hearsay statements under the state of mind exception. We hold that the State failed to sustain its burden to show that these errors were harmless beyond a reasonable doubt. But we hold that there was sufficient evidence to sustain a conviction so as not to bar a retrial for double jeopardy purposes.
Intending no disrespect, but in an effort to clearly identify the defendants and the victim, we refer to them by their first names.
We also hold that Daniel's conviction should be reversed for the following reasons: (1) the trial court erred in admitting irrelevant entries from notebooks seized from Carol's house; (2) absent proof of a conspiracy, the trial court erroneously admitted Carol's testimonial hearsay in violation of Daniel's Sixth Amendment confrontation rights; (3) the trial court erred in admitting Lisa's hearsay statements under the state of mind exception; and (4) the trial court erred in allowing Lisa's hearsay statement that Daniel was acting 'weird and crazy' as it was unrelated to Lisa's state of mind and particularly prejudicial to Daniel. 39 Report of Proceedings (RP) (Mar. 10, 2003) at 4392. We hold that, although there was sufficient evidence to sustain a conviction to permit a retrial, the errors were cumulative and denied Daniel a fair trial. We reverse both convictions and remand for new trials.
FACTS
Lisa was found murdered in her home on July 18, 1998. After a lengthy three-year investigation, the State charged Daniel and Carol with Lisa's murder. The State's theory at trial was that Daniel and his mother Carol killed Lisa because they were afraid that Lisa was going to leave Daniel and take the couple's two children with her. Specifically, the State alleged that on July 18, 1998, some time between 1:15 and 2:40 p.m., Daniel and Carol shot Lisa three times with a .22 caliber gun, killing her. Daniel then went to work in an effort to establish an alibi. Carol, in the meantime, staged the murder scene to deflect suspicion, tried to further her son's alibi by unsuccessfully attempting to send an e-mail from Lisa's account to indicate she was still alive after Daniel left for work, and attempted to create her own alibi by leaving messages on Lisa and Daniel's answering machine indicating that the two children had wandered up to her house after 5:00 p.m. In the process, Carol had to alter the answering machine to delete a message from Lisa's mother, Mrs. Donna Dahm. Then, at 8:00 p.m., Carol paged Daniel at work, asking him to return to check on Lisa. Daniel made sure his co-workers were aware he was leaving, got home around 9:00 p.m., and called 911 to report his wife's death. The State tried the Carlsons jointly and introduced the factual evidence to which we turn.
Background
Lisa and Daniel Carlson married in 1994 and had twin boys in July 1995. In September 1997, in order to save money, Daniel and Lisa began living in a trailer in Kapowsin, 150 yards from Daniel's parents' house. According to Lisa's mother, the marriage was troubled. Mrs. Dahm testified that Lisa and Daniel argued about bills, Daniel's parents, the children, and day care arrangements. Daniel's sister characterized the marriage as 'a little rocky.' 31 RP (Feb. 25, 2003) at 3176. Financial difficulties forced Daniel and Lisa to file bankruptcy a few months before Lisa's murder.
Lisa's relationship with Carol was also troubled. Daniel described the relationship between Lisa and Carol as very strained. Carol told police that she and Lisa barely spoke. And Mrs. Dahm testified that Lisa told her that she and Carol fought over how to raise the children, what clothes the children wore, and where Lisa and Daniel kept their money. Mrs. Dahm also testified that Lisa was so insecure that she kept her curtains closed because Carol spied through the windows.
Lisa and Daniel's relationship worsened when Lisa began an extramarital relationship with Shawn McKillop, Daniel's former friend. Daniel was aware of this relationship. By the summer of 1998, Lisa was spending most nights with McKillop. This relationship caused additional tension between Daniel, Lisa, and Daniel's parents. In 1998, Daniel told his co-workers that the marriage was over. And in his statement to police, Daniel admitted that he hated Lisa because she was involved in a sexual relationship with another man.
In November 1997, in recognition of their marital difficulties, Lisa and Daniel signed a separation agreement that McKillop had drafted. The agreement provided that Lisa would care for the children during the day while Daniel worked. His normal shift was from 2:15 to 10:30 p.m. Lisa would arrive in Kapowsin before Daniel left for work and watch the kids until he returned around 11 p.m. Normally, Lisa would then leave and spend the night at McKillop's house.
In February 1998, Carol confronted Lisa and McKillop, stating, '[w]hore, you little bitch. How could you do this to my son?' 35 RP (Mar. 4, 2003) at 3695. Daryl Carlson, Daniel's father, arrived shortly after and assaulted both Lisa and McKillop. As a result, Lisa obtained a restraining order against Daryl.
Both Lisa and Daniel apparently considered the prospect of divorce. In fact, the separation agreement provided that it would be the basis for any divorce settlement. Daniel, with the help of his parents and sister, actively prepared for a divorce. For example, the Carlsons kept a daily journal of Lisa's shortcomings as a parent. The explicit purpose of this daily log was for use in a divorce proceeding. On the night of the murder, Carol admitted to Chief Daniel Hannah of Graham Fire and Rescue that Lisa and Daniel were going through a contentious divorce, acknowledging that she knew a divorce was pending.
Daniel's and Carol's greatest concern regarding the crumbling marriage was that they would lose the children to Lisa. Daniel told his sister that he did not divorce Lisa because he was afraid he would lose the children. He was primarily worried that Lisa would take the children out of state. He felt that, in Washington, the mother usually got custody of the children. The separation agreement reflected this concern, providing that any deviation from the custody arrangement would be 'taken as an act of subversion/kidnapping.' Exhibit (Ex.) 14. Moreover, Carol told police in her statement that Daniel had contemplated divorce but that Lisa threatened to leave with the children.
Carol shared her concern about losing the children more vividly, telling a co-worker that there was 'no way that bitch was ever going to take her children away from her.' 27 RP (Feb. 18, 2003) at 2546. When Carol was unable to locate Lisa and the kids on one occasion, she told Mrs. Dahm that she was going to have Lisa arrested for kidnapping.
The evidence suggested that Lisa was contemplating a permanent separation. Three months before the murder, she told her father, Frank Dahm, that she was planning to divorce Daniel after the bankruptcy proceeding was resolved. The bankruptcy was finalized three days after the murder. Additionally, three days before the murder, Lisa told McKillop's stepsister, Lisa Day, that she wanted out of the marriage and wanted to go to Arizona, where McKillop's father lived, with her children. The day before the murder, Lisa told Ms. Day in a hysterical panicked voice that Daniel was acting 'too weird and crazy' and that she needed out of the marriage. 39 RP at 4392. And finally, the day of the murder, Lisa told McKillop that she was leaving Daniel. She told McKillop that after she met with her mother at 3:00 p.m., she was going to meet him and they would leave for Arizona with the children.
Day of Murder
On the day of the murder, Lisa left the children with Daniel in Kapowsin and arrived at McKillop's house at 2:00 a.m. According to McKillop, she had brought her computer to him so he could install some computer upgrades. During that process, he deleted the computer program Netscape. At some point before she left to go back to Kapowsin, Lisa told McKillop of her plan to leave for Arizona.
In Carol's statement to police, she indicated that she was off work on July 18 and visited Lisa and Daniel's house at 10:30 a.m. She told police she was bringing the children milk. Only 30 minutes later, at 11:00 a.m., McKillop related that Daniel called McKillop's house and had a polite conversation with Lisa. Daniel told police that Lisa had asked him to call to be sure she was awake.
McKillop testified that he last saw Lisa alive when she left his house between 12:30 and 12:45 p.m. to go to Kapowsin. Given that police determined the drive from McKillop's house to Kapowsin takes 45 minutes to an hour, Lisa could have arrived home between 1:15 and 1:45 p.m.
Meanwhile, sometime in the early afternoon, Carol called her sister and canceled their previously agreed plans for the afternoon. At 2:00 p.m., Daniel called his workplace to say that he would be late for work.
But, according to Daniel, Lisa did not arrive until 2:15 p.m. After a brief conversation, Daniel left for work, leaving Lisa with the children. Carol later told police that Daniel stopped by her house on the way to work to pick up his lunch.
In any case, Daniel arrived at work at 3:00 p.m. Although the drive from Kapowsin to his work takes 39 minutes in normal traffic, Daniel admitted that he could make it in 20 or 30 minutes if he hurried. Thus, Daniel could have left Kapowsin as late as 2:40 p.m.
At 3:40 p.m. someone turned on Lisa's computer, which she had brought back with her that afternoon, and attempted to access the computer program Netscape, even though McKillop had deleted the program earlier that morning. Apparently, the person was trying to use Netscape in order to gain access to Rocket Mail, an e-mail program. The State suggested the person was attempting to send an e-mail from Lisa's account. After unsuccessfully attempting to access Netscape, the person tried, unsuccessfully, to download Netscape and then turned the computer off at 4:18 p.m.
Mrs. Dahm testified that at 6:20 p.m. she called Lisa at Kapowsin to find out why Lisa failed to show up for their planned outing. When Lisa did not answer, Mrs. Dahm left a message on the answering machine. When police recovered the answering machine tape later, it did not contain this message from Mrs. Dahm. Instead, the answering machine had recorded three messages from Carol, each telling Lisa that her children were at Carol's house, and a fourth message Mrs. Dahm left after police discovered the murder.
This answering machine evidence was highly significant to the State's case against Carol even though the machine did not record the times of the individual calls and only indicated the order in which they were received. The State's expert testified that between Carol's first and second messages, the tape had an irregularity. He further testified that the only way to produce that particular irregularity on that kind of machine was to remove the tape, put it in another machine, and rewind it. Carol owned an answering machine capable of producing the irregularity.
Carol's alibi, introduced through her statements to police, was that at 5:45 p.m. Daniel and Lisa's twin boys appeared in her front yard. Carol told her sister she heard the children saying that they had to run to Carol '[s]o the bad man doesn't get us, too.' 43 RP (Mar. 17, 2003) at 4842. She told police, however, that the children told her Lisa was sleeping.
Carol then told police that she took the children inside and called Lisa's house, leaving several messages on the answering machine. She told police in her recorded statement that although she called, she did not go down to check on Lisa because the children had told her Lisa was sleeping, and she did not want to wake her. But she told Fire Chief Hannah that she did not check on Lisa because there was a restraining order against her. And she told Detective Michael Portmann that she did not go down to Lisa's house 'because she felt like teaching Lisa a lesson about watching the children.' 39 RP at 4413.
At 8:04 p.m., after she returned from running an errand to the Graham Safeway, she finally paged Daniel. After talking with Carol, Daniel told two co-workers that he was going home to see what was going on. He told one of these co-workers to tell a third colleague that he was leaving to go home to check on his wife. According to Daniel's sister, Jody, who arrived at Carol's house at 8:30 p.m., Daniel arrived shortly after she did. Daniel checked on his children and then went down to his house.
Daniel entered through the front door, although he admitted to police that he normally entered through the back door. He told police he did so to startle Lisa. But Lisa's parents testified that Lisa was conscientious about locking the front door with the deadbolt and chain. And Daniel confirmed that he expected the front door to be locked and chained.
At 8:59 p.m., Daniel called 911 and reported that he thought his wife had been murdered. The police and paramedics found Lisa lying face up on a large couch. A blue blanket covered her lower body, and, under the blanket, her pants had been pulled down around her ankles leaving her naked from the waist down. A control box attached by a cord to a sexual device was in her left hand. The device had been placed on her right thigh.
Investigation
While police investigated the crime scene, Daniel remained outside, and the police questioned him several times. During this time, the police testified that Daniel was calm. He asked to enter the house to get diapers and some clothing that might have been in the dryer. When Lisa's sister called the house to verify Lisa's death, Daniel answered in a flat monotone and did not seem distraught.
At some point, the police asked Daniel to sit in a police cruiser during questioning. Although Daniel asked to speak to his mother, he voluntarily agreed to stay in the car. During this questioning, Daniel admitted he had a motive to kill Lisa but denied killing her. When the police asked him if there was anything of evidentiary value they should examine, Daniel repeatedly told them that they needed to take the answering machine. At trial, an officer testified that during this exchange Daniel had limited eye contact and a nervous smile.
During the 911 call, Daniel volunteered that he kept a gun at his mother's house. An officer contacted Carol and asked for the gun, a 9 mm pistol. She willingly allowed the officer to retrieve the weapon. A little later in the evening, she also led officers to a .22 caliber Marlin rifle in a shed behind her house.
Daniel also told police that seven months before the murder he had purchased a .22 caliber handgun with his mother. Carol conceded to police that she was with Daniel when he bought a handgun. Daniel told police that the handgun was inoperable, so he took it to a friend who could fix it. Then, according to Daniel, he decided to trade it at a gun show for some 9 mm ammunition. But Daniel told police that there was no record of either the purchase or the trade.
Mr. Dahm also testified that, well before the murder, he had seen Daniel with a small caliber automatic pistol on three occasions. He also testified that when Daniel got a bigger pistol, a 9 mm, he explained to Mr. Dahm that a smaller gun was insufficient for knocking down an attacker unless the person was shot in the head or heart.
The State also introduced evidence of Carol's demeanor after the murder. Chief Hannah reported that Carol was frightened, with rapidly darting eyes, on the night of the murder. Other officers testified that she was very matter of fact and cold in later interviews. And when arrested three years after the crime, Carol was quiet and passive and covered her face for the entire trip to the jail.
After the murder, Daniel and the children moved in with his parents. After Lisa's death, someone at Carol's residence called a family law attorney. The police executed search warrants on both Carol's and Daniel's houses. The State seized several documents from Carol's house, including the daily log kept by the Carlsons in anticipation of a divorce and custody battle. They also seized .22 caliber ammunition consistent with the bullets found in the Marlin rifle, but inconsistent with spent .22 caliber casings found at the murder scene.
In the months following the murder, Daniel told friends that he was closely following the investigation. But Daniel did not contact police during that time. In addition, a few months after the murder, Daniel, worried that he could not prove he was innocent, confronted an employee of the Pierce County Medical examiner's office and asked her how he could have the death certificate altered to indicate that Lisa died while he was at work. The employee testified that during this exchange, Daniel refused to make eye contact.
Forensic Evidence
Lisa was shot twice in the head and once in the chest. The first bullet, though not fatal, damaged Lisa's brain and rendered her incapable of movement. She had no defensive wounds, indicating that she did not resist. The medical examiner determined that she had been killed some time in the afternoon of July 18 but could not specify the exact time of death.
The police found several items of evidence relevant to the gunshots that killed Lisa. Specifically, they found three spent .22 caliber shell casings. A tall black lamp behind the couch had damage consistent with a bullet impact, and bullet fragments found in the wall behind the couch were consistent with a bullet hitting the lamp. The State's ballistics expert concluded that none of the three shots that hit Lisa could have created the bullet mark in the lamp.
The State's firearm expert testified that Lisa was killed with a .22 caliber semiautomatic firearm. He examined the .22 caliber Marlin rifle and determined that it was not the murder weapon. He also testified that the Marlin rifle was inoperable when he first examined it because of a bent recoil spring. As a result of this defect, the casing from the last cartridge fired remained in the firearm. Although, the State's expert testified that the rifle could not be the murder weapon, he did testify that the ammunition in the rifle was consistent with the bullet mark on the lamp.
The police also noted that the television and the video cassette recorder (VCR) were both turned on but that the television displayed only a blue screen. A pornographic tape was in the VCR, and the VCR had been paused mid-tape. The VCR was of the type that had the tape been playing when Lisa was shot, it would have played to the end. Police also found that the master bedroom appeared to have been ransacked.
The State's crime scene expert, Mark Safarik, testified that the crime scene was consistent with someone trying to stage the murder to look like it had occurred during some other crime, such as a burglary. Safarik determined that although the bedroom was ransacked, the disarray was not purposeful as it would have been in an actual burglary. None of the jewelry containers, for example, were taken, and the computer room was also undisturbed.
In addition, Safarik relied on the opinion of Rod Englert, another State expert, that Lisa had been moved and that the sexual device had been positioned on Lisa's body. Blood stain evidence on the body and blood spatter on the wall indicated that Lisa was sitting upright on the couch when she was shot. The blood stains on the pillow, bloody hand prints on the couch and pillow, and blood transfer evidence showed that Lisa had been moved after her death. Similarly, the blood on the sexual device, wires and control box indicated they had been handled by someone with a bloody hand. Because the first shot rendered Lisa incapable of voluntary movement, the hand print belonged to someone else. And last, Lisa's pants were pulled, rather than pushed, down indicating that someone else had undressed her.
In the dryer, police found a pair of black socks, a pair of men's underwear, a black sweatshirt and sweatpants, black jeans, and a white terry cloth towel. The police collected these items and water from the washing machine's basin and trap to test for blood and DNA analysis.
The blood tests results were inconclusive. Alan Keel, one of the State's serologists, detected blood on the towel but was unable to obtain a DNA sample. The State's other expert, Karen Lindell, testified that Lisa was not the source of one of the blood stains found on the towel. There was also blood on the men's underwear, although the DNA could not be determined. The State did find Daniel's sperm on the underwear. One of the State's serologists detected blood on the t-shirt but could not extract a DNA profile. The same serologist detected a low level of blood in one of the washer's traps, but it was not sufficient for a DNA test. The State's other expert was unable to find blood on the underwear, jeans, black sweatpants, or t-shirt.
Procedural History
The State arrested Daniel and Carol Carlson three years after the murder and charged them with first degree murder as both principals and accomplices. In addition, the State charged both with a firearm enhancement for use of a firearm during the commission of a crime.
Before the trial, Daniel, Carol, and the State filed numerous pretrial motions. At a CrR 3.5 hearing, the trial court ruled that Daniel's statements to police on the night of the murder were admissible because Daniel was not in custody. In response to the many motions in limine, the trial court ruled that the State could introduce evidence of the defendants' ill will toward Lisa through evidence seized at Carol's home. The court also ruled that the search of Carol's house was proper.
In addition, the court allowed Mr. Dahm's testimony about Lisa's intentions regarding divorce, and the court excluded evidence of McKillop's employment record, as well as Lisa's life insurance policy. The court also reserved rulings on a number of issues, such as evidence of Lisa and Daniel's pending bankruptcy.
The jury found both Daniel and Carol guilty of first degree murder and found, by special verdict, that both were armed during the commission of a crime. At the sentencing hearing, the court imposed an exceptional sentence based on the court's finding that Daniel and Carol manipulated the body after death. Both Daniel and Carol appealed, and we consolidated their appeals.
ANALYSIS I. Carol Carlson A. Suppression of Documents, Fourth Amendment
We address the issues for each defendant separately.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures; evidence obtained from such a search is suppressed. State v. Gaines, 154 Wn.2d 711, 716-17, 116 P.3d 993 (2005).
Carol challenges the admission of evidence seized at her house, arguing that the police lacked probable cause. We hold that the police had probable cause to search her house for weapons used in the murder but not for documents relating either to a conspiracy or to the relationship between Daniel and Lisa Carlson.
We are most concerned with the police seizure of a notebook/journal that the Carlsons kept in preparation for a potential divorce between Daniel and Lisa. Most of the entries were written in Daniel's, Daniel's father's, and Daniel's sister's handwriting, but some entries were in Carol's handwriting.
A search warrant may be issued only upon a determination of probable cause. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that evidence of a crime will be found at the place to be searched. State v. Jackson, 150 Wn.2d 251, 264-65, 76 P.3d 217 (2003). Accordingly, the police must show a nexus between the criminal activity and the item to be seized and also show a nexus between the item to be seized and the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Although a magistrate may draw reasonable inferences from specific facts, broad generalizations are insufficient to establish probable cause. Thein, 138 Wn.2d at 148-49.
We review a magistrate's decision to issue a search warrant for abuse of discretion and accord great deference to that decision. Jackson, 150 Wn.2d at 265. We evaluate the affidavit in a common sense manner, not hypertechnically, and any doubts are resolved in favor of the warrant. Jackson, 150 Wn.2d at 265. A warrant is overbroad when it describes many items, but fails to link some of them to the offense or the place to be searched. State v. Griffith, 129 Wn. App. 482, 489, 120 P.3d 610 (2005). If we find that portions of the search warrant are invalid, we suppress only the invalid portions of the warrant. Griffith, 129 Wn. App. at 489.
Here, the police asked the magistrate for a warrant to search Carol's house for:
(1) .22 caliber handguns, ammunition, and related items; (2) documents relating to the relationship between Daniel, Lisa, their children, and McKillop; (3) documents relating to a conspiracy to murder Lisa; (4) telephone records from Carol's house; (5) keys to Lisa and Daniel's house; and (6) receipts from the Graham Safeway.
These related items included firearms, holsters, ammunition, indicia of ownership.
In the affidavit of probable cause, Pierce County Sheriff's Detective Thomas Lind set out the following facts: forensic gun evidence indicating a .22 caliber weapon killed Lisa; Daniel's admission that he had recently purchased a .22 caliber gun; evidence that Daniel kept other weapons at Carol's house; evidence detailing Daniel's troubled relationship with Lisa; Daniel's admission that he had a motive to kill her; and evidence that Daniel acknowledged that he previously assaulted Lisa. Lind also noted that Daniel had failed a polygraph examination.
Based on these facts, the State had probable cause to link Daniel to a.22 caliber weapon that could have been used in the murder. There was also a nexus between Daniel, the weapon, and Carol's house. Therefore, the portion of the warrant allowing police to search for weapons and ammunition at Carol's house was valid.
Detective Lind's affidavit also detailed, at some length, the police's concern with the answering machine in Lisa's house. The police believed the machine had been tampered with because a message from Lisa's mother had been erased. Given our deference to the reviewing magistrate, these facts provide sufficient probable cause for police to search Carol's telephone records to establish the timing of her recorded messages.
The affidavit, however, only minimally linked Carol to the murder. At most, the affidavit indicated that she was slow to call the police after the children walked up to her house and that she did not like her daughter-in-law. But that, standing alone, is not sufficient to connect her or her house to the murder. Detective Lind did not describe any physical evidence suggesting that Carol was at the murder scene, and he offered no evidence that Carol participated in altering the answering machine or that she had an answering machine capable of altering the tape in Lisa's house.
Even construing the facts in favor of the warrant's validity, the State had no probable cause to search Carol's house for documents relating to a conspiracy to kill Lisa or for documents relating to the relationship between McKillop, Daniel, Lisa, and the children. The State relies on the ill will demonstrated by the restraining order against Carol's husband, the close proximity of the houses, and the fact Daniel kept his weapons at Carol's house. Based on these facts, the State asserts 'documents relating to a conspiracy . . . were logically related to the crime.' Br. of Resp't at 34.
While documents relating to a conspiracy may be related to the crime, no evidence in the affidavit suggests such documents existed and no evidence connects these documents to Carol's house. Significantly, the search warrant only sought documents relating to the relationship between McKillop, Daniel, Lisa, and the children. The warrant did not seek documents describing Carol's involvement with the murder or her relationship with Lisa. Nor does the affidavit suggest that Daniel would keep documents relating to his pending divorce at his mother's house rather than his own. Ultimately, the State had no probable cause to look for these documents at Carol's house. That the State seized a divorce journal that only inferentially proves motive under the auspices of searching for 'documents relating to a conspiracy' reveals the search warrant's overbreadth. Br. of Resp't at 34.
The affidavit does not, for example, note that Daniel was staying with Carol after the murder.
Having determined that the affidavit of probable cause did not justify the search and seizure of documents in Carol's house, this part of the search was improper and we must suppress documents found in Carol's house. See State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999) (indicating that evidence seized in an illegal search is excluded under the exclusionary rule). Nevertheless, because the State had sufficient probable cause to search for weapons at Carol's house as well as for telephone records, we need not suppress that evidence. Griffith, 129 Wn. App. at 489.
We also note that searching for weapons, telephone records or receipts does not justify looking in journals and other documents, and therefore the plain view exception is inapplicable.
We take time here to note that Daniel does not challenge the admission of documents seized from Carol's house. Therefore, admitting those documents did not violate his Fourth Amendment rights.
Even if he had, Daniel lacked standing to challenge the illegal search. A defendant may challenge a search or seizure only if he has a personal Fourth Amendment privacy interest in the area searched. State v. Goucher, 124 Wn.2d 778, 787, 881 P.2d 210 (1994). But when a defendant does not live at home and only periodically stays at or uses his mother's house, he has no privacy right. State v. Francisco, 107 Wn. App, 247, 254, 26 P.3d 1008 (2001), review denied, 145 Wn.2d 1019 (2002). Here, Daniel did not live in his mother's house before the murder and, therefore, did not have a privacy interest in papers kept at his mother's house. His Fourth Amendment rights were not violated.
B. Sixth Amendment Right to Confrontation
The Sixth Amendment guarantees the right of an accused to 'be confronted with the witnesses against him.' U.S. Const. amend VI.
Carol next argues that the trial court's admission of Lisa's, Ms. Day's, and Daniel's hearsay statements violated her Sixth Amendment right to confront the witnesses against her. We hold that Carol's Sixth Amendment rights were abridged by the admission of Daniel's testimonial hearsay statements. We also hold that while Lisa's and Ms. Day's hearsay statements did not violate the rule against testimonial hearsay announced in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), those statements were improperly admitted under the state of mind exception to the hearsay rule.
The State suggests that because Carol failed to raise Crawford at trial, she cannot raise these arguments here. Crawford applies to cases that were pending on direct appeal when the decision was announced. In re Pers. Restraint of Markel, 154 Wn.2d 262, 268, 111 P.3d 249 (2005). Because this case was pending when Crawford was issued, Crawford applies. And because a Crawford violation is a manifest error affecting a constitutional right, it may be raised for the first time on appeal. RAP 2.5(a); State v. Clark, 139 Wn.2d 152, 156, 985 P.2d 377 (1999) (noting that manifest constitutional error may be raised for the first time on appeal). We therefore address the substance of Carol's argument.
We review alleged violations of the confrontation clause de novo. State v. Larry, 108 Wn. App. 894, 901-02, 34 P.3d 241 (2001) (citing United States v. Mayfield, 189 F.3d 895, 899 (9th Cir. 1999)). We review the trial court's evidentiary rulings for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). "A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds." State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens v. CD Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019 (1997). We may sustain the trial court's evidentiary ruling on the grounds the trial court used or other proper grounds. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983).
Before Crawford, admitting a hearsay statement did not violate the Sixth Amendment's confrontation clause if the statement qualified under a firmly rooted hearsay exception or had some other sufficient indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); State v. Moses, 129 Wn. App. 718, 723, 119 P.3d 906 (2005). In Crawford, the Supreme Court reformulated confrontation clause jurisprudence and held that testimonial hearsay may not be admitted in a criminal case unless the defendant has had an opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68-69. Although Washington courts have not addressed it, other courts have held that Roberts is still valid when addressing nontestimonial hearsay. See e.g. United States v. Saget, 377 F.3d 223, 227 (2nd Cir. 2004).
Thus, we begin our analysis in this case with Crawford. Crawford applies when three prerequisites are met. First, the challenged statement must be offered for the truth of the matter asserted, i.e., for a hearsay purpose. Crawford, 541 U.S. at 50-51 (noting that the Court was concerned with hearsay statements); In re Pers. Restraint of Theders, 130 Wn. App. 422, 432-33, 123 P.3d 489 (2005) (noting that when out-of-court assertions are not introduced to prove the truth of the matter asserted, confrontation clause concerns do not arise).
Second, the statements must be testimonial. The Crawford Court declined to define testimonial statements but it did identify three examples: (1) ex parte in-court testimony or its functional equivalent, i.e., affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that a declarant would reasonably expect to be used in prosecution; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements made under circumstances that would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. Crawford, 541 U.S. at 51-52. Statements given to police in the course of an interrogation are testimonial under any of these tests. Crawford, 541 U.S. at 52.
Washington courts have defined testimonial as the functional equivalent of testimony in which the declarant bears witness. In a recent decision addressing the admissibility of 911 calls, the Washington Supreme Court indicated that the issue in Crawford was whether the declarant intended to 'bear witness,' and 'knowingly provided the functional equivalent of testimony to a government agent.' State v. Davis, 154 Wn.2d 291, 302, 111 P.3d 844, cert. granted, 126 S. Ct. 547 (2005). This division of the Court of Appeals recently followed Davis and held that Crawford applied to statements in which the declarant is 'bearing witness.' State v. Ohlson, 131 Wn. App. 71, 82, 125 P.3d 990 (2005). This approach follows language in Crawford indicating that: 'An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' Crawford, 541 U.S. at 51.
Third, the defendant must not have had an opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59 ('[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.'). This requirement is satisfied if the witness appears on the stand and testifies only that she does not remember the incident. In re Pers. Restraint of Grasso, 151 Wn.2d 1, 17, 84 P.3d 859 (2004) (indicating that a witness's reply that she could not remember the incidents related in the statement was constitutionally sufficient); United States v. Owens, 484 U.S. 554, 556, 559, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988) (holding that where a witness could not remember his attacker because of a head injury, his testimony that he could not remember satisfied the confrontation clause).
To summarize, to determine whether a statement's admission violates the confrontation clause, we must determine (1) whether the challenged statement is hearsay; (2) whether the statement is testimonial; and (3) whether there was an opportunity to cross-examine the declarant. If the statement is nontestimonial, we determine whether the statement qualifies under a firmly rooted exception to the hearsay rule. Moses, 129 Wn. App. at 723. With this framework in mind, we turn to the statements Carol challenges in this case.
1. Nontestimonial Hearsay
First, Carol challenges Lisa's statements to her father, mother, boyfriend, and Ms. Day regarding her state of mind and her intention to divorce Daniel and leave for Arizona. While these statements are hearsay and Carol did not have an opportunity to cross-examine Lisa, they are not testimonial. When speaking to her friends and relatives, Lisa was not providing the functional equivalent of testimony. Davis, 154 Wn.2d at 301-302. Instead, they were confidences to her family and close personal relatives. Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding 'statements . . . made during a private conversation' were nontestimonial), cert. denied, 543 U.S. 1093 (2005). Therefore, because they were nontestimonial, the admission of these statements did not violate Carol's Sixth Amendment rights.
Carol next challenges Ms. Day's double hearsay statements about Lisa's state of mind admitted through Detective Portmann. Ms. Day spoke with Lisa three days before the murder on July 15th. Unfortunately, Ms. Day suffered a stroke before trial. She testified at trial that she only remembered bits and pieces of her conversations with Lisa and that she could not distinguish if those memories were her own or things she had overheard. She did, however, remember speaking to police and believed that she gave them truthful information. Because Ms. Day testified at trial, she was sufficiently available for cross-examination even though she could not remember the conversations. Grasso, 151 Wn.2d at 17. Therefore, the admission of these statements did not violate Carol's Sixth Amendment rights under Crawford. And because Lisa's statements to Ms. Day were nontestimonial, both levels of hearsay were admissible under confrontation clause analysis.
Carol also argues that the trial court erred in admitting Daniel's statements to his friends and co-workers. But as with Lisa's personal confidences, Daniel's statements to acquaintances and friends are not testimonial for the purposes of the confrontation clause. Accordingly, Crawford's per se exclusion rule is inapplicable.
We pause to note that even though these hearsay statements may not violate Crawford, they must still be admissible under Roberts. Saget, 377 F.3d at 226. Because we exclude Lisa's hearsay statements regarding her state of mind on relevance grounds, as we will discuss later, we do not reach the question of whether Lisa's hearsay was reliable under Roberts. Similarly, because it is not necessary to our decision, and because the parties did not adequately brief the issue, we do not reach the issue of whether, in the case against Carol, Daniel's nontestimonial hearsay is admissible under Roberts.
2. Daniel's Testimonial Hearsay
Last, Carol challenges the trial court's admission of Daniel's statements to police. Unlike the statements we have examined thus far, these statements were testimonial in nature. As indicated in Crawford, '[s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.' Crawford, 541 U.S. at 52. And as Daniel did not testify, Carol had no opportunity to cross-examine the declarant. Two of the three Crawford elements testimonial statements and no opportunity to cross-examine are present. Therefore, any hearsay statements to police were admitted in violation of Crawford, and constitute constitutional error.
The State offers two reasons why Daniel's statements were not hearsay. First, they argue that the statements were admitted to show inconsistencies and similarities between Carol and Daniel's stories, a non-hearsay purpose. Second, they argue that Daniel's statements were co-conspirator statements, and that Carol, as a member of the conspiracy, adopted these admissions as her own, thus making them non-hearsay under ER 801(d)(2)(v). We find neither argument persuasive.
The State first suggests that Daniel's statements to police were not hearsay because they were only admitted to show inconsistencies and similarities between his alibi story and Carol's. This is relevant, the State argues, because it shows that her story was carefully tailored to be consistent with her son's alibi story and is evidence of a conspiracy. But where one witness is used to impeach another, the veracity of the conflicting stories is necessarily at issue and therefore constitutes hearsay. State v. Williams, 79 Wn. App. 21, 26-27, 902 P.2d 1258 (1995) (noting that using a witness's own statement to impeach her is not hearsay, but using another person's hearsay statement to do so is hearsay).
We note that, in Crawford, the Court was concerned with a witness's statement that was used to impeach the defendant's self-defense story. Crawford, 541 U.S. at 38-39.
Even if some of Daniel's statements were admitted to show that he and Carol worked on a jointly tailored alibi story, most of Daniel's statements were admitted for the truth of the matter asserted and are therefore subject to Crawford. And a partial list shows how prejudicial these unexamined hearsay statements can be. For example, police recounted to the jury Daniel's story that he had purchased a .22 caliber handgun seven months before the murder. This story was the primary evidence in the record that Daniel had access to a gun, other than the defective .22 caliber Marlin rifle, that could have killed Lisa. The State also played the tape of his statement to police detailing, among other things, his mother's heated confrontations with Lisa, implying that Carol had a motive to hate and perhaps kill Lisa. Daniel also admitted to police that he had a motive to kill Lisa and that he absolutely hated her for her infidelity. To the extent that these statements were admitted as evidence against Carol, indicating that her son had a motive and ability to kill Lisa, they were offered for the truth of the matter asserted and were hearsay coming from police officers. It was error to admit them against Carol without allowing her to cross-examine Daniel about these statements.
We note that the jury asked to hear the tapes played again after deliberations began, indicating that they were significant to the jury.
The State attempts to save these statements by arguing that they were statements in furtherance of a conspiracy. Statements in furtherance of a conspiracy are not testimonial and their admission does not implicate the Sixth Amendment. Crawford, 541 U.S. at 56 (indicating that statements in furtherance of a conspiracy are by their nature not testimonial). Hearsay statements of co-conspirators during the course of a conspiracy and in furtherance of it are admissible. ER 801(d)(2)(v); State v. St. Pierre, 111 Wn.2d 105, 118, 759 P.2d 383 (1988). The theory behind this hearsay exemption is that conspirators adopt co-conspirator's statements as their own. ER 801(d)(2)(v). Accordingly, the statements must be in furtherance of the conspiracy. St. Pierre, 111 Wn.2d at 118-19. And statements made after the conspiracy has ended or following the arrest of an alleged co-conspirator are generally not within the exemption. St. Pierre, 111 Wn.2d at 119.
The trial court did not admit these statements under the co-conspirator hearsay exemption. Ordinarily, the trial court must make an independent determination of a conspiracy based on a preponderance of the evidence, but we may affirm if the record shows substantial evidence, based on the preponderance standard, that the defendants were members of a conspiracy. State v. Guloy, 104 Wn.2d 412, 420-21, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
To prove a conspiracy, the State had the burden of showing an agreement by two or more persons to do an unlawful act. State v. Halley, 77 Wn. App. 149, 154, 890 P.2d 511 (1995). By its terms, ER 801(d)(2)(v) does not require that a conspiracy be actually charged. State v. Dictado, 102 Wn.2d 277, 283, 687 P.2d 172 (1984). It is not necessary to show a formal agreement; a conspiracy may be proven by the acts, declarations, and conduct of the conspirators. State v. Barnes, 85 Wn. App. 638, 664, 932 P.2d 669, review denied, 133 Wn.2d 1021 (1997). And circumstantial evidence may be sufficient to prove a conspiracy. Barnes, 85 Wn. App. at 664.
The State argues that the record supports the conclusion that Daniel and Carol were involved in a conspiracy to wrongfully deprive Lisa of the custody of her children. The State argues that the fact that Daniel and Carol purchased a .22 caliber gun seven months before the murder indicates that they were already planning to murder Lisa to make sure they got the children. The State then alleges that the defendants' attempt to create an alibi for Daniel to avoid arrest was part of this conspiracy, because they wanted Daniel to have custody of the children.
But the State's argument is not persuasive. The State did not introduce any evidence of a conspiracy and as such could not introduce any statement made in the course of or furtherance of the conspiracy. If anything, the evidence shows that in the months before the murder, Daniel and Carol attempted to take legal steps to ensure that Daniel retained custody of the children. This is not, despite the State's insistence, an illegal act. The evidence indicated not that Daniel and Carol wanted to deprive Lisa of the children, but that they were afraid Lisa would illegally deprive Daniel of custody. Divorce notebooks of the type the Carlsons kept are often used in preparation for custody disputes in the context of divorce.
Nor does the evidence necessarily establish a conspiracy to murder Lisa. The State relies primarily on Daniel's gun purchase before the murder to show that Daniel and Carol planned the murder. But Daniel seems to have been a gun collector, making the purchase less than remarkable. And the gun purchase predates the bankruptcy proceedings that the State alleges dictated the timing of the murder. We hold that there was insufficient evidence in this appellate record, based on the preponderance standard, to prove that Daniel and Carol conspired to murder Lisa.
We agree with the State that there was sufficient evidence to support the conclusion that Carol participated in the murder. But that, standing alone, is not proof of a conspiracy. We decline to find, solely on the basis of the appellate record, that a conspiracy existed.
Even assuming that this record supported the conclusion that Daniel and Carol conspired, the State fails to explain how the challenged statements furthered that conspiracy. While it may be that statements that conspirators give to police after the crime could serve a conspiracy, Daniel's statement that he had a motive to kill Lisa does not further a conspiracy to kill her and gain custody of their children. Nor does his statement detailing Carol's acrimonious relationship with Lisa serve the conspiracy. These statements to police were admissions during a lengthy police interrogation, the purpose of which was to find inconsistencies in Daniel's story. The product of that interrogation did not serve any conspiracy and was not Carol's adoptive admission. Therefore, we cannot find that Daniel's hearsay statements, implicating himself and Carol, were statements in furtherance of a conspiracy.
Because Daniel's statements were made under circumstances that would lead an objective witness to believe they would be used at a later trial, we hold that Daniel's statements to police were testimonial hearsay. Crawford, 541 U.S. at 52. Because Carol did not have an opportunity to cross-examine Daniel, they were admitted in violation of Carol's Sixth Amendment rights and should have been excluded.
3. Bruton
Carol also argues that admitting Daniel's hearsay statements violated Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The Bruton Court held that admitting a co-defendant's confession expressly implicating a defendant was too prejudicial to be cured by a limiting instruction. Bruton, 391 U.S. at 135-36. But the Bruton line of cases does not help us resolve the Sixth Amendment issue in this case. The Bruton line of cases addresses whether the trial court's limiting instruction is sufficient to avoid a potential Sixth Amendment violations.
In this case, the trial court failed to give an instruction limiting the jury to using Daniel's testimonial statements to the case against Daniel. We are, therefore, not presented with a Bruton question. We note, however, that had such an instruction been given, our analysis may have differed. It is not clear what effect Crawford has on Bruton. Confessions, because they are formal statements to police, are testimonial hearsay and would fall under Crawford's per se exclusion rule. Crawford, 541 U.S. at 52. We express no opinion about whether a limiting instruction is sufficient to avoid Crawford's per se exclusion in a case with two co-defendants where the State seeks to introduce the co-defendant's testimonial hearsay.
C. Lisa's State of Mind
We now turn to the admissibility of Lisa's nontestimonial hearsay statements to friends and family under the hearsay rules. Carol specifically challenges the admission of Lisa's parents', McKillop's, and Ms. Day's testimony relating Lisa's hearsay statements. She alleges that Lisa's statements regarding the state of her marriage, her dislike of Kapowsin, her fear of Daniel because he was acting weird and crazy, her fights with Carol, her divorce plans, and plans to leave the state are inadmissible hearsay. We agree.
These witnesses may, of course, testify about facts based on their own observations, as that would not be hearsay. Powell, 126 Wn.2d at 265.
The State contends that Lisa's hearsay statements fall under the state of mind exception to the hearsay rule. Under ER 803(a)(3), a hearsay statement that reveals a declarant's then existing state of mind is admissible. Assuming, without deciding, that Lisa's statements to friends and family are relevant to her then existing state of mind, this hearsay exception applies only if the statements are also relevant to the case against Daniel and Carol. And a murder victim's hearsay statement is only relevant under the state of mind exception when her state of mind is at issue, such as in cases involving claims of accident or self-defense. Powell, 126 Wn.2d at 266; State v. Cameron, 100 Wn.2d 520, 531, 674 P.2d 650 (1983); State v. Parr, 93 Wn.2d 95, 103, 606 P.2d 263 (1980).
In Powell, a husband was accused of killing his wife. Powell, 126 Wn.2d at 247-48. The trial court allowed several friends and family to testify about domestic violence incidents the victim had related to them. Powell, 126 Wn.2d at 249-53 (listing statements). The court determined that while these statements were relevant to the victim's state of mind, most were not admissible because the victim's state of mind was not at issue. Powell, 126 Wn.2d at 266 (citing Parr, 93 Wn.2d at 103.)
The court's position in Parr makes it clear that the basis of this distinction is relevance. Parr, 93 Wn.2d at 103. In Parr, the court determined that a victim's statement to a third party revealing the victim's state of mind is 'ordinarily not relevant.' Parr, 93 Wn.2d at 103. Thus, Parr stands for the proposition that if there is some way that the victim's state of mind is relevant to an issue in the case, it is admissible.
Here, the Carlsons did not raise claims of self-defense or of accident but, rather, denied they were involved in the murder at all. Thus, under Powell, Lisa's state of mind was not at issue in this case, and the statements detailing the state of her marriage, her dislike of Kaposwin, and her fear of Daniel were not admissible under the state of mind exception. Powell, 126 Wn.2d at 266. Accordingly, the evidence that Lisa was afraid of Daniel should have been excluded.
At most, Lisa's plan to obtain a divorce after the bankruptcy was final or to flee the state might be admissible if the State had shown that Carol was aware of Lisa's intentions, making Lisa's state of mind relevant to Carol's motive to murder her before the bankruptcy and before Lisa left with the children. While it might be possible to infer from Daniel's and Carol's preparations for a custody fight that they knew Lisa was generally contemplating a divorce, there is no indication that they were aware of the specific timing of Lisa's plans.
The State argues that Lisa's intentions were relevant to the murder because the jury may have inferred from the timing of the murder that Carol and Daniel knew about her plans. But the State introduced no evidence that Lisa took any steps toward getting a divorce other than her statement to her father three months before the murder. In fact, Lisa's mother testified that Lisa took no steps toward getting a divorce. Lisa's remote statement of intent three months before the murder is too attenuated to support the conclusion that Daniel and Carol knew of her intentions. Based on the evidence introduced at trial, the trial court erred in allowing testimony as to Lisa's intention to get a divorce after bankruptcy.
The State's case for introducing Lisa's plan to leave for Arizona with the children is even less persuasive. The trial testimony indicates that Lisa kept Daniel and Carol ignorant. McKillop's testimony indicates that these plans were 'undisclosed.' 36 RP (Mar. 4, 2003) at 3702. And Ms. Day told police that the plan was to make Lisa and her children 'disappear' and 'smuggle them out of their home.' 39 RP at 4394. Absent some indication that Lisa's hearsay statements somehow got back to Daniel and Carol, they are not admissible to show Daniel's and Carol's motives.
The State next argues that Lisa's hearsay statements were admissible under the future intent exception. This exception is closely related to the state of mind exception, but we analyze them separately. See Powell, 126 Wn.2d at 266. Under the statement of future intent exception, hearsay statements are admissible as circumstantial evidence that the declarant acted in conformity with the stated intent. State v. Terrovona, 105 Wn.2d 632, 642, 716 P.2d 295 (1986). We hold there must be a close correlation between the victim's statement of future intent and the victim's conduct.
Terrovona involved a situation in which there was a close correlation between the victim's statement of future intent and the victim's future conduct. In Terronova, the victim received a phone call and then told his girlfriend it was the defendant and that he was going to meet him at a particular location. Terrovona, 105 Wn.2d at 634. Fifteen minutes later, the victim was found dead at that location. Terrovona, 105 Wn.2d at 634. Similarly in Powell, the court applied the future intent exception to allow a victim's statements to explain why the victim was at the murder scene. Powell, 126 Wn.2d at 253, 266. In Powell, as in Terrovona, a close correlation existed between the victim's statement of future intent and the victim's conduct.
Turning to the State's argument that Lisa's statements were admissible as statements of future intent, only three of the challenged statements implicate Lisa's future intent her statement to her father that she intended to get a divorce after the bankruptcy; her statement to Ms. Day that she planned to go to Arizona; and her statement to McKillop that she was going to leave the night of the murder.
The first two statements do not possess the necessary close correlation between Lisa's stated intent and the events leading to her murder. Lisa's statement to her father three months before the murder is not close enough in time to fit under the future intent exception, especially because, as Mrs. Dahm admitted on cross-examination, Lisa took no steps toward getting a divorce during that time. Lisa's intent three months before the murder is simply not relevant to show what she did the day she was murdered.
Lisa's statement to Ms. Day three days before the murder that she wanted out of the marriage and wanted to go to Arizona likewise does not possess the necessary close correlation. This statement does not correlate with any of Lisa's actions. The evidence suggests that Lisa, Daniel, and McKillop followed their ordinary practice during the days before the murder. The link between her statement to Ms. Day and the murder is too attenuated to fit under the future intent exception to the hearsay rule.
Lisa's statement to McKillop is also not admissible. McKillop testified that the morning of the murder, Lisa said she had had enough. She told him that she had plans with her mother that afternoon and that after that she was going to get the children, come over to McKillop's house, and leave for Arizona. Lisa then left McKillop's house and went to Kapowsin. But Lisa's presence in Kapowsin was not unusual. She went to Kapowsin every day to be with her children. And, she had no packed bags, the children did not mention that they were going to be traveling, and Lisa took no other action that day consistent with her preparing to leave; thus, the necessary close correlation between Lisa's stated intention and her actions in conformity with the hearsay is lacking. If anything, the fact that Lisa returned her computer to Kapowsin belies McKillop's claim that she was planning to leave that day.
Thus, the trial court erred in admitting McKillop's testimony that Lisa planned on leaving for Arizona that day. The trial court also erred in admitting Mrs. Dahm's testimony that Lisa did not want to go to Kapowsin because of Carol; Mrs. Dahm's testimony that Lisa told her that she fought with Carol over how to raise the children; and Detective Portmann's testimony that Lisa told Ms. Day that Daniel was getting weird and crazy and that Lisa needed to get out of there. These statements reveal Lisa's state of mind, but they are not relevant to Daniel's and Carol's motive. The trial court also erred in admitting Mr. Dahm's and Ms. Day's testimony regarding when Lisa planned on getting a divorce or leaving for Arizona.
We acknowledge that if, on retrial, the State can introduce evidence that Daniel or Carol were aware of Lisa's state of mind, this evidence may be admissible.
D. Remedy
Having determined that the trial court erred in admitting documents seized from Carol's house, Daniel's testimonial hearsay, and hearsay regarding Lisa's state of mind, we hold that these errors were not harmless.
Violations of a person's right to be free from an illegal search and seizure is a constitutional error and is presumed to be prejudicial. State v. McReynolds, 117 Wn. App. 309, 326, 71 P.2d 663 (2003); see also State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999) (indicating that the under the Washington Constitution, suppression of illegally seized evidence is constitutionally required). Similarly, improperly admitting hearsay evidence is subject to constitutional error analysis. Although the general rule is that evidentiary errors are subject to ordinary harmless error analysis, 'when an error, such as improperly admitting hearsay evidence, deprives the defendant of the right to confrontation,' the State must show that the error was harmless beyond a reasonable doubt. Powell, 126 Wn.2d at 267; McReynolds, 117 Wn. App. at 326 (indicating that under constitutional error analysis, the State bears the burden of demonstrating the error was harmless beyond a reasonable doubt). An error is harmless beyond a reasonable doubt if untainted evidence admitted at trial is so overwhelming that it necessarily leads to a finding of guilt. State v. Thompson, 151 Wn.2d 793, 808, 92 P.3d 228 (2004).
Given our holdings that the police illegally seized the notebooks from Carol's house and that they were used to promote the State's theory of a conspiracy and enmity of Carol toward Lisa, that the trial court improperly admitted Daniel's testimonial hearsay statements in violation of the Sixth Amendment, and that the trial court erred in admitting statements of Lisa's state of mind, we cannot find these errors harmless. The State's case is highly circumstantial and relies heavily on inferences, leaving the State with little margin for error under constitutional error analysis. Without Daniel's admission that he possessed a weapon that could have killed Lisa, the journals reinforcing the depth of Carol's involvement with the pending custody dispute, and Lisa's highly charged hearsay statements, the State cannot meet its burden of showing that the errors were harmless beyond a reasonable doubt. With the exclusion of so much evidence, there is not overwhelming, untainted evidence of Carol's guilt, and Carol's conviction must be reversed.
But we hold that there was substantial evidence for her conviction such that a retrial is not barred by double jeopardy. See In re Pers. Restraint of Candelario, 129 Wn. App. 1, 10, 118 P.3d 349 (2005) (where there is sufficient evidence, the state may bring the charge on remand.); Lockhart v. Nelson, 488 U.S. 33, 34, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). We review the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). When the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)). And in determining sufficiency, we consider circumstantial evidence as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Here, the evidence, taken in the light most favorable to the State, showed that the murder was committed by two persons; a rifle was at Carol's home that could have been used at the murder scene; Carol was angry with Lisa over issues with the children; Carol was in close proximity to the murder scene; Carol had a device in her house that could have altered the answering machine tape; and the staging of the victim and the crime scene to make an appearance of a burglary/murder was an attempt to redirect the murder investigation from its true perpetrators an inference leading to Carol's culpability. And the timing of the murder and the bankruptcy in the context of the deteriorating marriage, even without Lisa's hearsay testimony, supports an inference that the murder was premeditated. Although not overwhelming evidence of guilt, this evidence was sufficient for a reasonable trier of fact to conclude that Carol was guilty beyond a reasonable doubt.
For the reasons we have stated, Carol's conviction must be reversed and remanded for a new trial.
II. Daniel Carlson A. Journal
Daniel challenges the admission of the journal found in Carol's house on relevance grounds. Testimony at trial established that all the Carlsons wrote in the journal and on the various documents. The trial court admitted this evidence as relevant to the existence of a family effort to get custody of Daniel's and Lisa's children. Daniel argues that because the State did not charge or prove a conspiracy to commit murder, evidence of a concerted family effort is not relevant. We examine this issue under ER 401 to determine whether this evidence has '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.
We accord a trial court's determination of relevance a great deal of deference and will overturn it only for a manifest abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds. State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens, 124 Wn.2d at 168). The appellant bears the burden of proving abuse of discretion. Hentz, 32 Wn. App. at 190.
It is important to our consideration that the State did not allege a conspiracy and the trial court never ruled on its existence. Specifically, the State introduced no evidence of a concerted family effort to murder Lisa. The documents only reveal that the Carlsons kept a log of Lisa's actions in contemplation of a potential divorce. While the family's preparation for a divorce might be relevant to Daniel's actions, other family member's individual entries are not relevant to Daniel's motive or intent to murder Lisa. We hold that the notebooks as a whole are not relevant to Daniel's motive or intent. It was an abuse of discretion to admit any entries other than Daniel's.
Daniel's entries, however, are relevant to show his motive. Even though those entries do not demonstrate a direct motive for murder, they are relevant to show that he was in the middle of a divorce and was worried about losing his children. The jury could have inferred his motive from his entries.
B. Sixth Amendment Violations
Daniel next argues that, under Crawford, the trial court erred by admitting hearsay statements in violation of his Sixth Amendment right to confront several witnesses. Specifically, he challenges (1) admission of hearsay statements describing Lisa's state of mind; (2) Lisa's hearsay statements through Ms. Day; and (3) Carol's hearsay statements to police. Following our analysis above, we hold that Lisa's hearsay statements were not testimonial and did not violate Daniel's Sixth Amendment rights. We also hold that the admission of Ms. Day's initial statement through Detective Portmann did not violate Daniel's confrontation rights because she testified at trial.
Our previous discussion regarding the statements to the police is equally applicable to Carol's testimonial hearsay admitted against Daniel. Her statements to police are testimonial hearsay as against Daniel and may not be admitted unless Daniel had the opportunity to cross-examine her. Because Daniel did not have the opportunity to cross-examine Carol, they are not admissible under Crawford. And the attempt to save these statements by use of the co-conspirator rule fails. Thus, the trial court erred in admitting Carol's statements to police against Daniel in violation of the Sixth Amendment.
C. State of Mind
Our previous discussion regarding Lisa's statements to Lisa's father, mother, boyfriend, and boyfriend's sister are equally applicable to Daniel's case. We hold that it was error to admit Mr. Dahm's testimony that Lisa told him she was planning to divorce Daniel after their bankruptcy became final; McKillop's testimony that Lisa planned on leaving for Arizona that day; Mrs. Dahm's testimony that Lisa did not want to go to Kapowsin because of Carol; Mrs. Dahm's testimony that Lisa told her that she fought with Carol over how to raise the children; and Detective Portmann's testimony that Lisa told Ms. Day that Daniel was getting weird and crazy and that Lisa needed to get out of there.
Given the inferential nature of the State's case, we note that this emotionally charged but ambiguous hearsay statement was particularly prejudicial to Daniel.
D. Remedy
We employ the same rationale with respect to Daniel that we did with Carol regarding the remedy for the State's violation of Daniel's Sixth Amendment rights. The State must show that the Sixth Amendment violations and improperly admitted victim's hearsay statements were harmless beyond reasonable doubt. Powell, 126 Wn.2d at 267. The constitutional harmless error test requires overwhelming evidence of guilt. Thompson, 151 Wn.2d at 808. For evidentiary errors, we apply the rule that the error is not prejudicial unless, within reasonable probabilities, the trial's outcome would have been materially affected had the error not occurred. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). The outcome would not have been affected if the evidence erroneously admitted is of minor significance in reference to the evidence as a whole. Bourgeois, 133 Wn.2d at 403.
Here, the State did not present overwhelming evidence of Daniel's guilt. The case was entirely circumstantial; the State did not present any eyewitnesses, any direct evidence, any trace evidence pointing to Daniel, or any confessions. Accordingly, the admission of Carol's testimonial hearsay statements as well as Lisa's hearsay statements was prejudicial and, therefore, reversible error.
Although we hold that Daniel's conviction should be reversed because of the Sixth Amendment violations and the improper admission of the victim's hearsay, we look as well to the cumulative error doctrine. Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors, even though individually not reversible error, cumulatively produced a trial that was fundamentally unfair. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000); In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, cert. denied, 513 U.S. 849 (1994). The defendant bears the burden of proving an accumulation of errors that would make a retrial necessary. Lord, 123 Wn.2d at 332.
Here, the trial court erred in admitting the notebooks and papers the Carlsons prepared for a possible divorce. On their own, the notebooks were duplicative of other evidence of Daniel's motive for killing Lisa. But when combined with the constitutional errors and Lisa's improper hearsay evidence, we find that the combined errors produced a trial that was fundamentally unfair. So, even if the admission of the notebooks, Lisa's hearsay, and Carol's testimonial hearsay did not warrant reversal on their own, we would reverse and remand for a new trial under the cumulative error doctrine.
As with Carol, we hold that substantial evidence supported the jury's verdict so that a new trial for Daniel would not be barred by double jeopardy. See In re Candelario, 129 Wn. App. at 10. We review the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. Green, 94 Wn.2d at 220-22.
Daniel admitted that he had a motive to kill Lisa. Construing the evidence in favor of the State, he was in Kapowsin for over an hour while Lisa was there, giving him the opportunity to kill Lisa and still get to work, leaving Carol to stage the murder scene. He admitted that he possessed a .22 caliber automatic pistol that the jury could have inferred was the murder weapon. He possessed a .22 caliber Marlin rifle that could have fired the fourth shot. Although four shots were fired at the murder scene, only three casings were found, with the inference being that the fourth was the one lodged in the .22 Marlin rifle. The staging of the murder scene implies someone who had a motive, such as Daniel, committed the crime. The jury could have inferred the blood on the clothing in the dryer came from a murderer with time to clean up. And the jury could have inferred, based on the timing of the murder and the bankruptcy, that the murder was premeditated. Based on these facts, there was sufficient evidence to support Daniel's conviction for first degree murder.
For the reasons we have stated, Daniel's conviction should be reversed and remanded for a new trial. We now turn to evidentiary issues that may arise upon retrial.
IV. Evidentiary Issues A. Daniel's Statements at Murder Scene
Daniel argues that the trial court should have excluded his statements to police in the hours immediately after the murder because police did not read him his Miranda warnings. Daniel's argument fails.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Miranda warnings are required when an interview is (a) custodial (b) interrogation (c) by a state agent. State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004). Turning to the first requirement, a person is in custody when a reasonable person in those circumstances would believe that his freedom is curtailed to a degree associated with formal arrest. Lorenz, 152 Wn.2d at 37. The relevant inquiry is not the suspect's actual belief but whether a reasonable person would believe that his freedom was actually curtailed. State v. Sargent, 111 Wn.2d 641, 649, 762 P.2d 1127 (1988). Thus, the defendant is not in custody merely because he is under suspicion. Lorenz, 152 Wn.2d at 37.
We review the trial court's factual findings at a suppression hearing for substantial evidence. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Substantial evidence is evidence sufficient to persuade a rational person of the truth of the finding. Mendez, 137 Wn.2d at 214. And we review the trial court's conclusions of law regarding custody de novo. Lorenz, 152 Wn.2d at 36.
Here, the trial court entered a factual finding that Daniel was free to move around. Although one officer testified that he would have prevented Daniel from leaving, the trial court's finding is supported by testimony from several officers that Daniel voluntarily remained and even assisted with the investigation. He was free to exit the police car and move around. When Daniel asked if he could see his mother, one officer asked him to stay while they searched his house; he again voluntarily agreed to stay. Accordingly, substantial evidence supports the trial court's finding that Daniel was free to go and that a reasonable person would not have believed his freedom was actively curtailed. Therefore, Daniel was not in custody for purposes of Miranda. The court did not err in finding his statements admissible.
B. Comment on Silence
Daniel argues that the State improperly commented on his Fifth Amendment right to silence by eliciting that Daniel did not call the police in the six months after initially reporting Lisa's death. The State replies that the testimony only related Daniel's conduct and was therefore not an improper comment on Daniel's silence. The State is correct.
The Fifth Amendment prohibits the State from commenting on the silence of a defendant so as to infer guilt from a refusal to answer questions. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). As the court explained in a companion case to Lewis, the purpose of the right is "to spare the 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." State v. Easter, 130 Wn.2d 228, 241, 922 P.2d 1285 (1996) (quoting Doe v. United States, 487 U.S. 201, 213, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1998)).
This record does not support Daniel's argument that the State commented on his right to silence. In fact, the State introduced no evidence that Daniel refused to answer any of the officer's questions. Quite the contrary, Daniel told his friends that he was fully participating in the investigation and was calling the police regularly. The challenged testimony from Detective Lind and Detective Karr, merely reveals that Daniel did not call the police to check on the investigation after his wife's murder. But this is conduct and admission of this evidence did not reveal, 'directly or indirectly' Daniel's 'knowledge of facts relating him to the offense.' Easter, 130 Wn.2d at 241. The trial court did not err. Daniel argues that because the State introduced his statements that he was participating in the investigation, it cannot impeach those statements. But this argument is not well taken. The credibility of Daniel's alibi for the night of the murder was a direct and central issue in the case. The State was therefore entitled to impeach Daniel's credibility through statements to friends inconsistent with his actions. Bourgeois, 133 Wn.2d at 401-02 (noting the State may impeach a witness whose credibility is an inevitable central issue). There was no error.
C. Profiler
Daniel and Carol assert that the trial erred in admitting Mark Safarik's testimony that the murder scene was staged. Specifically, they argue (1) that Safarik's testimony as a crime scene analyst was based on a novel scientific theory, (2) that Safarik's testimony was not helpful to the jury and should have been excluded under ER 702, and (3) that his testimony was irrelevant to the murder. Because Safarik was a qualified crime scene expert and his opinion was helpful to explain inconsistencies at the crime scene, we hold that the trial court properly allowed his testimony.
We review the trial court's admission of evidence for abuse of discretion. Pirtle, 127 Wn.2d at 648. We also review the trial court's decision regarding an expert's qualifications for abuse of discretion. In re the Detention of Twining, 77 Wn. App. 882, 891, 894 P.2d 1331, review denied, 127 Wn.2d 1018 (1995).
First, Daniel and Carol argue that Safarik was not qualified to testify because no scientific community generally accepts his methodology. They correctly note that Safarik was not a psychiatrist, psychologist, forensic pathologist, or medical doctor. But that does not mean that Safarik was not qualified via his experience or that his methodology was not acceptable. In fact, Washington courts have often noted that '[p]ractical experience is sufficient to qualify a witness as an expert.' State v. Farr-Lenzini, 93 Wn. App. 453, 461, 970 P.2d 313 (1999).
Here, Safarik's experience and education qualified him to interpret forensic evidence at crime scenes. He testified that he had personally been involved in 3,000 homicide investigations. In addition, he has taught between 5,000 and 10,000 law enforcement officers nationally and internationally about violent crime scene analysis. Based on these facts, the trial court did not abuse its discretion in allowing Safarik to testify as an expert on crime scene analysis.
Moreover, Safarik relied on accepted methodologies. For example, in his extended discussion on how he concluded that the victim had been moved from where she was actually shot, he relied on the forensic analysis of the bloodstains. Most of his testimony is based on his examination of the crime scene photographs, investigative reports, witness statements, and forensic reports. Based on his own lengthy experience with homicides, he then formulated his opinion that the crime scene in this case was staged or altered by the murderer and that staging was uncommon.
Our Supreme Court's decision in State v. Russell, 125 Wn.2d 24, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995), supports the admission of Safarik's testimony. In Russell, the court upheld the admission of two experts' testimony about the rarity of posing victims. Russell, 125 Wn.2d at 68-69. The experts relied on two computer databases to conclude that posing was rare. Russell, 125 Wn.2d at 69. The court rejected the defendant's argument that the computer programs were based on a novel scientific theory but were 'nothing more than sophisticated record-keeping systems' and therefore the Frye test was not necessary. Russell, 125 Wn.2d at 70. In this case, Safarik based his testimony on his own experience, not on a novel scientific theory that needed to be tested for admissibility under the Frye test.
In Washington, novel scientific evidence is admissible if it has been generally accepted in the relevant scientific community. State v. Jones, 130 Wn.2d 302, 306-07, 922 P.2d 806 (1996). The test is named after Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Second, Daniel and Carol argue that Safarik's testimony was not helpful to the jury under ER 702. ER 702 provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact 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.
We review the trial court's admission of evidence under ER 702 for abuse of discretion. State v. Greene, 139 Wn.2d 64, 70, 984 P.2d 1024 (1999).
Here, Safarik had specialized knowledge of crime scenes derived from his years of law enforcement experience and education. And an ordinary juror would not be aware of how often crime scenes are staged nor what forensic evidence to look at to determine if a crime scene was staged. Safarik's testimony assisted the jury in understanding why Lisa was incongruously posed with a sexual device and the house was apparently ransacked. Accordingly, the trial court did not abuse its discretion in allowing the testimony of Safarik to help the jury understand the crime scene.
Finally, Daniel and Carol contend that the trial court should have excluded Safarik's testimony under ER 402 because it was not relevant. Specifically, they argue that Safarik relied on speculation and conjecture and that his testimony was not relevant to understanding the forensic evidence. This argument fails. Safarik relied on his experience and the forensic evidence in coming to his conclusions. And his explanation was relevant to explaining various aspects of the crime scene. As the State noted in its closing argument, a reasonable inference from the staging of a crime scene is that an obvious suspect wished to divert attention. Therefore, the trial court did not err in admitting this evidence.
D. Demeanor
Both Daniel and Carol argue that the trial court improperly allowed the prosecution's witnesses to testify about their reactions to the murder and Carol's reactions to being arrested.
We note that Carol does not argue that her reaction at her arrest was not relevant. We therefore express no opinion on whether a defendant's arrest three years after a murder was relevant to consciousness of guilt.
They argue that this evidence constituted an improper comment on their guilt. The State responds that witnesses are allowed to give factual observations about the defendants' reactions and that those factual observations do not constitute impermissible opinions of guilt. The State's position is correct. As described above, we review the trial court's admission of evidence for an abuse of discretion. Pirtle, 127 Wn.2d at 648.
A witness may not express an opinion on the defendants' guilt. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001); State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Thus, for example, Division Three found improper a police officer's testimony, based on his training to detect lies, that the defendant was not genuine. State v. Barr, 123 Wn. App. 373, 383, 98 P.3d 518 (2004), review denied, 154 Wn.2d 1009 (2005). A witness may, however, testify about a defendant's reaction if it is prefaced by a proper foundation, such as personal observations of the defendant's conduct that are factually recounted to the jury. State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988). And evidence of consciousness of guilt is generally admissible if relevant. See, e.g., State v. Allen, 57 Wn. App. 134, 143, 788 P.2d 1084 (1990).
Personal observations of the defendant during and immediately after stressful events are admissible. In State v. Stenson, 132 Wn.2d 668, 724, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998), our Supreme Court held that a paramedic's personal observations of the defendant's conduct were admissible. These statements included the paramedic's observations that the defendant was calm, not crying, not stuttering, and not excited. Stenson, 132 Wn.2d at 721. In addition, the Stenson court cited to a Division One case in which the court upheld the admission of a social worker's opinion that the defendant's behavior 'was somewhat unusual from what I normally saw.' Stenson, 132 Wn.2d at 723-24 (citing State v. Craven, 69 Wn. App. 581, 585, 849 P.2d 681 (1993)). Division One reasoned that the witness in that case gave an adequate factual foundation for her opinion. Craven, 69 Wn. App. at 586.
Here, Daniel challenges the following statements: Deputy Ruder's statement that Daniel appeared calm, and was 'maybe too helpful,' 19 RP (Feb. 3, 2003) at 1443; Deputy Lind's testimony that Daniel appeared relatively calm and soft spoken; Detective Karr's observation that Daniel appeared very nervous and fidgety; Detective Portmann's testimony that Daniel appeared calm and collected during his interrogation; and finally Deputy Barnes's testimony that he did not think Daniel displayed much grief for having lost his wife.
Most of these statements do not express an opinion on the defendant's guilt. The officers were merely recounting what they observed. For example, Deputy Ruder testified that Daniel was too helpful while explaining how Daniel kept offering suggestions on the investigation; his testimony was an attempt to describe Daniel's behavior, not indicate that Daniel was lying. Therefore, his testimony had a proper factual foundation. Deputy Barnes's testimony, however, does express a personal opinion without adequate factual foundation that Daniel did not display enough grief for an innocent person. Deputy Barnes's view of how much grief is appropriate invades the province of the jury. But the trial court recognized this and ordered the jury to disregard his statements. We presume that juries follow the trial court's instructions to disregard improper evidence. Russell, 125 Wn.2d at 84. Therefore, we hold the trial court did not err.
Daniel does not now argue that the comment was so prejudicial that the instruction did not cure the prejudice.
Carol, in turn, challenges the following statements: Chief Hannah's testimony that she seemed frightened and upset, vomited, and, based on his experiences in over 500 death notifications, had an unusual reaction after being informed of Lisa's death; Mrs. Dahm's testimony that Carol failed to contact Lisa's family after the murder; Detective Karr's testimony that Carol appeared calm and 'cold,' 37 RP (Mar. 5, 2003) at 4025; and Detective Portmann's testimony that she appeared composed during questioning.
This testimony, like that in Stenson and Craven, was factually based. For example, with regard to Carol, the prosecution witnesses relied on their personal observations. Detective Karr testified that Carol seemed 'matter of fact' in her interactions with him. 37 RP at 4025. This observation came in the midst of Detective Karr's recollection of Carol's statements to him describing Carol's alibi story. Moreover, with regard to Chief Hannah's testimony, the State only elicited that Carol's reaction was unusual after the defense asked Chief Hannah whether people exhibited different reactions after being informed of someone's death. The defense therefore opened the door as to whether Carol's reaction fit within the normal range of reactions to such news. Accordingly, with regard to these observations, we hold that there was no error.
E. .22 caliber Marlin rifle
Daniel and Carol argue the trial court erred in admitting evidence regarding the .22 caliber Marlin rifle and Daniel's possession of a .22 caliber handgun that he allegedly purchased and sold in the months before the trial. They rely on State v. Rupe, 101 Wn.2d 664, 704-05, 683 P.2d 571 (1984), a case in which the State used the defendant's ownership of guns in a sentencing hearing to argue that he was dangerous. They contend that Rupe stands for the proposition that evidence of guns not used in a crime must be excluded. Their arguments fail.
The admissibility of evidence about a gun or about the defendant's possession of a weapon turns on its relevance. State v. Hoffman, 116 Wn.2d 51, 92, 804 P.2d 577 (1991). In Hoffman, the court noted that '[g]uns do not necessarily have to be used in the commission of a crime to be admissible.' Hoffman, 116 Wn.2d at 92. Evidence of a gun is admissible if it has probative value to an issue in the case. Hoffman, 116 Wn.2d at 92. And the trial court has wide discretion in determining whether such evidence is relevant and admissible. Hoffman, 116 Wn.2d at 92.
Although the Marlin rifle was not the murder weapon, the State introduced evidence that a bullet hit the lamp at the scene. The State also introduced evidence that the bullets that killed Lisa could not have hit the lamp. The State also introduced evidence that the bullets in the Marlin rifle were consistent with the bullets that struck the lamp. Moreover, the Marlin rifle had malfunctioned when it was last fired, leaving the casing still in the weapon, and potentially explaining why police found only three casings at the scene. A jury could reasonably infer that the Marlin was involved in the murder. Therefore, the trial court did not abuse its discretion in allowing testimony relating to the Marlin rifle.
Also, evidence regarding Daniel's possession of a .22 handgun is admissible. Testimony that establishes a defendant possessed a gun of the type used to kill the victim is relevant. State v. Luvene, 127 Wn.2d 690, 708, 903 P.2d 960 (1995). Thus, Daniel's admission about buying a .22 automatic pistol before the murder is properly admissible.
F. Telephone Call
Carol argues that the trial court erred in admitting evidence that someone in Carol's house called a family law attorney the day after the murder. Carol argues that this constituted a comment on Carol's right to retain an attorney. We do not reach this question because we hold that the phone call was not relevant to this case. The State only introduced evidence that someone at Carol's house called a family law attorney. It did not produce evidence that Daniel or Carol made that call, that they actually spoke to an attorney, or that the phone call related in some way to the murder. Because we have held that there was no family conspiracy to murder Lisa, this phone call is not relevant and should be excluded.
Because we have reversed and remanded the matter for retrial, we do not address other arguments related to the trial, including claims of prosecutorial misconduct, issues raised in Daniel's and Carol's Statements of Additional Grounds, ineffective assistance of counsel claims, denials for mistrials, or sentencing issues.
See RAP 10.10.
Both convictions are reversed and remanded for new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J. and PENOYAR, J., concur.