Opinion
No. 52721-5-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-01597-9. Judgment or order under review. Date filed: 07/25/2003. Judge signing: Hon. George T Mattson.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
A Chaten — Informational only (Appearing Pro Se), Doc # 737908, Clallam Bay Corr. Center, 1830 Eagle Crest Way, Clallam Bay, WA 98326-9723.
Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
A jury convicted Adrian Chaten on three counts of rape in the first degree. Chaten claims the trial court erred in denying his motion to suppress the DNA evidence because the statute that requires convicted felons to provide deoxyribonucleic acid (DNA) for purposes of DNA identification, RCW 43.43.754, is an unconstitutional authorization for a warrantless search. Chaten also argues the trial court abused its discretion in excluding evidence of another suspect. Relying on Blakely v. Washington, Chaten contends that under RCW 9.94A.589(1)(b) the State should have proved beyond a reasonable doubt and a jury should have decided whether Chaten's convictions for three counts of rape were `separate and distinct criminal conduct.' Chaten also asserts the trial court erred in imposing $500 victim penalty assessment instead of a $100 assessment. We conclude the trial court did not err in denying Chaten's motion to suppress the DNA evidence and did not abuse its discretion in excluding other suspect evidence. In State v. Naomi Kinney, we recently held that the determination of whether multiple serious violent offenses are `separate and distinct' criminal conduct under RCW 9.94A.589(1)(b) is not a decision that must be proved beyond a reasonable doubt and decided by a jury under Blakely. We affirm Chaten's convictions and the trial court's decision that the three convictions for rape in the first degree were `separate and distinct' conduct under RCW 9.94A.589(1)(b). But based on the State's concession that the victim penalty assessment should be $100 rather than $500, we remand to correct the judgment and sentence accordingly.
___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d. 403 (2004).
We granted Chaten's motion to reconsider the unpublished opinion in State v. Chaten, No. 52721-5-I, slip op. (Wash.Ct.App., August 9, 2004) to address the question of whether the imposition of a consecutive sentence under RCW 9.94A.589(1)(b) is unconstitutional under Blakely.
No. 53093-3-I, slip op. (Wash.Ct.App. February 14, 2005).
FACTS
In the early morning of March 29, 1996, an armed man wearing a black ski mask and a red jacket forcibly entered Linda Short's apartment. The man raped Short vaginally and with the handle of a claw hammer and with a gun. He left Short bound and gagged, but she managed to call the police. Short told the police what had happened and described her attacker as a black man who wore a red jacket. Short also identified a number of missing items including her Bruce Lee videos, a jewelry box, and nearly $12,000 worth of jewelry. At Harborview Medical Center doctors examined Short and performed a rape kit. At the Washington State Crime Lab (WSCL) low levels of semen were isolated from the rape kit vaginal swabs and hammer. The semen was insufficient to do DNA Restriction Fragment Length Polymorphism (RFLP) testing. After 6 to 8 months of investigation, the case was inactivated.
In August of 2001, with advances in DNA testing, the WSCL used Polymerase Chain Reaction (PCR) to test the semen from the vaginal swabs and hammer to obtain a DNA profile. The DNA profile was then searched against the Washington State Patrol's (WSP) convicted felon database. The DNA profile from the swabs and hammer matched the DNA of Adrian Chaten, a convicted felon. Chaten's DNA profile was included in the database because of two prior felony convictions. In 1995, Chaten was convicted of attempted robbery and the court ordered him to provide DNA for purposes of identification and the WSP's convicted felon database. In 1998, Chaten was convicted of two counts of first degree rape and was again ordered to provide a DNA sample.
This technology amplifies a particular gene and can be used to test a far smaller sample than is needed for RFLP. See State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995); State v. Russell, 125 Wn.2d 24, 882 P.2d 747 (1994).
Based on the WSP database DNA match, on February 28, 2002, Chaten was charged with three counts of first degree rape, one count of first degree robbery, and one count of first degree burglary. The State sought additional DNA from Chaten to compare with the DNA profile extracted from the vaginal swabs and hammer because the WSCL required a new DNA sample to verify its results. Over Chaten's objection, the trial court granted the State's request. Pretrial, Chaten moved to suppress the DNA he was required to provide in 1995, 1998, and after being charged, as an unconstitutional violation of the Fourth Amendment. The trial court denied Chaten's motion.
The State later dismissed the robbery and burglary charges.
At trial, in addition to the DNA evidence, the State presented the testimony of Brandon Ollivier, the son of Chaten's long-time girlfriend. Ollivier testified that in March 1996, Chaten borrowed his pellet gun and red jacket and they drove to Short's apartment complex. Chaten told Ollivier to wait in the car and honk the horn if the police showed up. About 45 minutes later, Chaten returned with Bruce Lee videos, a jewelry box, and jewelry. He put the videos, jewelry box and jewelry in the backseat of the car and then hid Ollivier's red jacket in a nearby bush. He was breathing heavily and told Ollivier something had gone wrong, he had to `tie them up' and they needed to `lay low' until the police drove by. Ollivier and Chaten drove to a nearby apartment complex and hid the gun under a dumpster. At trial, the mother of Chaten's girlfriend testified that her daughter had given her a gold herringbone necklace. Short identified the necklace as one that was stolen from her apartment on the night of the rape.
Record of Proceedings (RP) at 1305.
Later on in the day, Chaten, Ollivier and a third person returned to Short's apartment complex and got the jacket. A day or two later Chaten and Ollivier returned to the other apartment complex to get the gun, but it was gone.
The jury found Chaten guilty on all three counts of first degree rape, and he received a standard range sentence.
ANALYSIS Fourth Amendment Challenge
Chaten argues the statute that requires convicted felons to provide DNA, RCW 43.43.754, is unconstitutional because it authorizes a warrantless search without probable cause in violation of the Fourth Amendment. The Washington State Supreme Court in State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993), held that a previous version of RCW 43.43.754 did not violate the Fourth Amendment because it served a special need beyond normal law enforcement.
Chaten argues the Court's analysis in Olivas is undermined by recent United States Supreme Court cases Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), cert. denied, 121 S. Ct. 1239 2003); City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000); and Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004). This court in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004) considered and rejected Chaten's argument that Ferguson, Edmonds, and Lidster undermine the Supreme Court's decision in Olivas. The decisions in Olivas and Surge are persuasive and controlling and we conclude the trial court properly denied Chaten's motion to suppress the DNA evidence.
Chaten also relies on United States v. Miles, 228 F.Supp. 2d 1130 (E.D. Cal. 2002) a District Court decision that held the federal DNA act was unconstitutional as applied. The Miles decision is an anomaly and has not been followed by other federal courts. See, e.g., U.S. v. Kimler, 335 F.3d 1132 (10th Cir. 2003), cert. denied, 124 S. Ct. 945 (2003), Vore v. U.S. Dept of Justice, 281 F.Supp.2d 1129 (D.Ariz. 2003); Miller v. U.S. Parole Comm'n, 259 F.Supp.2d 1166 (D.Kan. 2003).
Other Suspect Evidence
Chaten contends the trial court erred in excluding evidence and testimony about another suspect, Lovelle Goodrum.
A few weeks prior to the rape in 1996, Goodrum and Short had a brief sexual relationship. Short told police detectives Goodrum was a likely suspect. She said Goodrum had the same scent, same skin tone, and was roughly the same size as the man who raped her. Short said the man `kind of sounded' like Goodrum and wore a similar black shirt. Short also told the police that Goodrum had martial arts training so he could have kicked in the door and said that because her dog did not bark, she believed the rapist was someone familiar. In addition, after the rape, Goodrum talked to Short and said that a mutual friend, Terrie Lyn, had told him about the rape. Lyn, however, assured Short that she had not said anything about the rape to Goodrum. Goodrum also told Short that `someone had been watching her and that was probably someone she knew.'
Clerk's Papers (CP) at 173.
CP at 172.
The detectives investigated Goodrum as a possible suspect and interviewed him in April 1996. Goodrum told the detectives that at the time of the crime he was at his apartment with his friend Colette Corwin and roommate William Simon. Subsequent interviews with Corwin and Simon and further investigation confirmed Goodrum's alibi. Short also later learned that Lyn lied to her and in fact had told Goodrum and others about the rape. Before trial, the State filed a motion to exclude evidence of other suspects, including Goodrum. Chaten sought to introduce evidence of Goodrum as a suspect based on the reasons Short gave the police. The trial court granted the State's motion and excluded the other suspect evidence. The trial court concluded Chaten failed to meet his burden to establish the necessary connection between the evidence regarding Goodrum and the crime. We review the trial court's decision to exclude other suspect evidence for an abuse of discretion. State v. Russell,125 Wn.2d 24, 75, 882 P.2d 747 (1994); State v. Mak, 105 Wn.2d 692, 710, 718 P.2d 407 (1986). Discretion is abused if it is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Elmore, 139 Wn.2d 250, 285, 985 P.2d 289 (1999).
A criminal defendant has the constitutional right to present a defense consisting of relevant evidence that is not otherwise inadmissible. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). However, the defendant has no right to admit irrelevant evidence. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). The defendant has the burden of showing that the other suspect evidence is admissible. State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986). The other suspect evidence must tend to clearly point to someone besides the defendant as the guilty party. Russell, 125 Wn.2d at 77; Mak, 105 Wn.2d at 692, 716; State v. Kwan, 174 Wash. 528, 533, 25 P.2d 104 (1933). The evidence must establish a nexus between the other suspect and the crime. State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993). The evidence must do more than encourage the jury to speculate about other possible suspects. Rehak, 67 Wn. App. at 163; State v. Drummer, 54 Wn. App. 751, 755, 775 P.2d 981 (1989). Chaten relies on State v. Clark, 78 Wn. App. 471, 898 P.2d 854 (1995), to argue that because the case against him was circumstantial, he is entitled to rely on circumstantial evidence to meet his burden to introduce other suspect evidence. In Clark, the defendant presented evidence of the other suspect's motive, opportunity, and ability to commit the arson for which the defendant had been charged. Clark, 78 Wn. App. at 474-476. Although the evidence was circumstantial, the court in Clark concluded the other suspect evidence was admissible because it clearly pointed to someone other than the defendant as the guilty party. Clark, 78 Wn. App. at 480. Unlike Clark, because of Goodrum's uncontroverted alibi, Chaten could not present evidence of Goodrum's opportunity and ability to commit the crime. The trial court's decision to exclude evidence of Goodrum was not an abuse of discretion.
The other suspect had warned his ex-wife (the defendant's girlfriend) to `watch it' because he knew how to start fires without detection. Clark, 78 Wn. App. at 475. He also told his ex-wife it was `too bad' the defendant was in jail for something he did not do. Id.
Chaten also relies on Clark for the proposition that in cases based on circumstantial evidence, there is a different standard for the introduction of other suspect evidence. Chaten misinterprets Clark. Clark does not say that when the State's case is based on circumstantial evidence, the defendant may introduce any circumstantial evidence that tends to identify someone else as the guilty party. The other suspect evidence must clearly point to someone else as the perpetrator of the crime. Clark, 78 Wn. App. at 480 (`trail of evidence' pointing to other suspect was `sufficiently strong').
Consecutive Sentence
Chaten was convicted by a jury on three counts of rape in the first degree. The trial court decided under RCW 9.94A.589(1)(b) that the jury's conviction on three counts of rape in the first degree were multiple serious violent offenses and `separate and distinct criminal conduct.' The trial court imposed a standard sentence for each of the three counts to be served consecutively for a total of 415 months. Chaten contends that under Blakely the question of whether the three convictions for rape were `separate and distinct conduct' under RCW 9.94A.589(1)(b) must be proved beyond a reasonable doubt and decided by a jury. This same argument was rejected in and is controlled by our recent decision in Kinney. In Kinney, we held Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) do not apply to the determination of whether multiple serious violent offenses are separate and distinct criminal conduct under RCW 9.9A.589(1)(b).
RCW 9.94A.589(1)(b) provides:
(b) Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under
(a) of this subsection.
Victim Penalty Assessment
The State concedes the trial court erred when it imposed for a $500 victim penalty assessment rather than $100 as required under an earlier version of the statute.
An amendment to RCW 7.68.035(1)(a), effective June 6, 1996, raised the amount of the victim penalty assessment from $100 to $500. State v. Humphrey, 139 Wn.2d 53, 55, 983 P.2d 1118 (1999). The amendment applies prospectively to offenses committed on or after June 6, 1996. Humphrey, 139 Wn.2d at 55.
Conclusion
We affirm Chaten's conviction for three counts of rape in the first degree and trial courts decision to impose a consecutive sentence under RCW 9.94A.589(1)(b) but remand to correct the judgment and sentence to impose a $100 rather than a $500 victim penalty assessment.