State of Washington v. Kelly Eugene Small ( 2017 )

FILED
MARCH 7, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31185-6-111
Respondent, )
)
v. )
) UNPUBLISHED OPINION
KELLY EUGENE SMALL, )
)
Appellant. )
SIDDOWAY, J. - Kelly Small appeals his convictions for first degree rape, first
degree burglary, and forgery. He contends the trial court erred when it admitted forensic
evidence of an indented writing, 1 imposed a 24-month sexual motivation enhancement,
and instructed the jury that it had a "duty" to find him guilty if the State proved the
crimes charged beyond a reasonable doubt. He raises four more alleged errors in a pro se
statement of additional grounds.
We remand for partial resentencing in light of the possibly mistaken application of
the enhancement, which was not mandatory at the time of Mr. Small's crimes. We
otherwise affirm.
1 An indented writing is the impression left on a piece of paper that is beneath
another piece of paper being written on. Bramlett v. True, 59 F. App'x 1, 5 (4th Cir.
2003).
No. 31185-6-111
State v. Small
FACTS AND PROCEDURAL BACKGROUND
In April 2009, Detective Jeff Koplin of the Omak Police Department was assigned
to an unsolved rape case. Seventy-five-year-old Barbra Murphy 2 had been violently
sexually assaulted in her home a little after midnight one morning in early 2006 by a man
who removed an air conditioner and entered through a window. Blood recovered from
her telephone, with which she struck the rapist, was sent to the state crime lab, which
performed DNA3 analysis and determined the major contributor was a white male. In
2007, the DNA evidence was entered into the Combined DNA Index System (CODIS)
and returned a positive match for as-yet unidentified DNA found at the scene of another
unsolved Omak crime, the 1998 rape and murder of Susan Burton.
In January 2010, Detective Koplin decided to try a new approach and began
interviewing male witnesses identified in the Burton file whose DNA had never been
obtained. One was the defendant, Kelly Small. Mr. Small had performed remodeling
work at Ms. Burton's apartment and had been given a key. When Detective Koplin
contacted him on Friday, January 15, 2010, Mr. Small agreed to speak and came in to see
the detective that afternoon. The detective told Mr. Small DNA evidence revealed that
the same individual committed both the Burton and Murphy crimes. The detective
discussed Mr. Small's connection with Ms. Burton and assured Mr. Small he was not a
2
We use pseudonyms for the victims of rapes discussed in the opinion.
3
Deoxyribonucleic acid.
2
No. 31185-6-111
State v. Small
suspect. But he still asked for addresses where Mr. Small had lived in the past, and Mr.
Small provided some. None was close to where Ms. Burton or Ms. Murphy had lived.
Detective Koplin also requested and obtained a voluntary DNA sample from Mr. Small.
On the Tuesday after the ensuing three-day weekend, Mr. Small's wife reported
Mr. Small missing. He had told her he was going to a building supply store but never
returned. She reported that some of his clothing, an electric razor, and the family's all-
terrain vehicle (ATV) were missing. Detective Koplin later discovered that Mr. Small
sold the ATV in Okanogan on the day he was reported missing for $3,000, after forging
his wife's name on the title.
In speaking with Ms. Small, Detective Koplin learned that omitted from Mr.
Small's recount of his residential history the prior Friday was the fact that the Smalls
lived in an apartment next door to Ms. Murphy's home between 2004 and May 2005. He
also learned that Mr. Small's best friend lived across the street from Ms. Murphy's home
at the time Ms. Murphy was assaulted.
Ms. Small soon quit responding to Detective Koplin's calls, and on January 30, the
detective learned that Mr. Small had returned home. He called Mr. Small, told him he
needed to verify his return in light of the missing person report, and traveled to the Small
home to see him. There, the detective read Mr. Small Miranda 4 warnings and Mr. Small
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
No. 31185-6-111
State v. Small
agreed to talk. Mr. Small told the detective he left town because he was stressed about
money and needed to get away and think. He said he sold the family ATV for travelling
money, drove to Seattle where he left his vehicle, telephone, and keys, and took a flight
to Los Angeles, then a bus to Corpus Christie, then Phoenix, and then Las Vegas. From
there he took a bus to Wenatchee and another to Spokane, where his daughter picked him
up and brought him back to Omak.
When Detective Koplin asked Mr. Small about the whereabouts of his luggage,
Mr. Small said he had fallen asleep at the bus station in Las Vegas and his duffel bag was
stolen. For several reasons, the detective believed this was a lie. In an interview several
days later, Mr. Small admitted he left his duffel bag in his Las Vegas hotel room,
explaining, "it was full of dirty clothes, he had a long walk and he didn't want to carry it
with him." Report of Proceedings (RP) at 2932. 5 Detective Koplin contacted the hotel,
asked that it hold the bag, and arranged for Las Vegas police to collect it as evidence.
That same day, Detective Koplin received results from the DNA sample Mr. Small
had provided. The DNA was a match for the blood found on Ms. Murphy's telephone.
Mr. Small was arrested on February 2 and charged with the Burton and Murphy crimes.
Upon receiving Mr. Small's duffel bag from Las Vegas police, Detective Koplin
5
All references to the report of proceedings are to the consecutively numbered
report that begins with Mr. Small's February 11, 2010 arraignment and continues through
trial and sentencing.
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State v. Small
found that in addition to clothing and a shaving kit, it contained a red spiral notebook and
several receipts. One receipt, from a drugstore, reflected the purchase on January 23 of a
spiral notebook of the sort found in the bag. Noticing that the front cover and the first
page of the spiral notebook had impressions left from writing, Detective Koplin sent it to
the state crime lab for analysis. Using oblique lighting and electrostatic detection, crime
lab personnel recovered words from the indentations, which they concluded were in letter
format and were consistent with someone drafting two letters. They concluded from a
handwriting comparison that the impressions were made by Mr. Small.
After receiving images of the indented writing from the crime lab, Detective
Koplin pieced together the following phrases from the images of the inside front cover of
the notebook:
(1) "I'm sorry for everything I put you threw .... I put drinking and
partying and my friends first. Fuck I hate myself for it ... she is ... "
(2) "You were always a great wife and a wonderful mother. I just wish you
could say that you had 26 wonderful years, but I know you can't";
(3) " ... of your family and both of you take care of your mother. Cody
you're the man of the house ... "
(4) "Please tell your kids that I ... a ... wreck so they don't have to go
threw life like you two .... "
(5) "Savannah and Cody. I'm so sorry ... I really love you two ... weren't
very old";
(6) "You're great kids and I'm sorry I can't be there for you";
(7) "I know that I will never see my grandkid ever again, victory is an
angel, and Cody, I'm sorry that I will never see your son.";
(8) "I'm sorry. You take care of your mother Cody. You're the man of the
house now."
(10) [sic] "I wasn't always bad there was some good .... "
(11) "By the time ... "
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No. 31185-6-111
State v. Small
(12) "I'm not going to prison for life, I'm going to hell instead. I love all
ofyou, Bye!!"
Clerk's Papers (CP) at 451.
Detective Koplin pieced together the following from the images of the top page of
the notebook:
(1) "1-26-10";
(2) "To Marla, Savanna, and Cody"
(3) "Why I left because I don't want this to go to court and go on for
months in the news + paper. It better to ... hit the news paper tonse
then tell you what happen 12 years ago"
(4) "It was one of my all night drinking ... ";
(5) "I really do love all of you ... "
(6) "I wish I could take that night back ... "
(7) "I'm so sorry you have all gone threw this mess together ... "
(8) "I wish I could take that night back ... I can't ... I hate myself for
what I did ... I have to remember that night for ever and everything
I lost ... ";
(10) [sic] "I'm not going to prison for life because I know no one will
visit me ... "
(11) " ... drinking you drink like I did.";
(12) Various words are listed in this section, including: "some day", "you",
"I" "will" "know" "hate" "I" "mean" "ask" "me" "don't" "blame"
' ' ' ' ' ' ' ' ' '
"them", "you" ...
( 13) "take that day back . . ."
(14) "I hate myself';
(15) "-I know-I know that I will never see you ... Marla, Savanna +
Cody. I really do love you so much and I can't live with out you. I'm
so sorry I have to go know ... "
(16) " ... take my life ... "
(16) [sic]" ... I really did ... to grow old with you ... "
( 17) "I really do love you all with all my heart ... always have ... "
(18) "Kelly, Dad".
CP at 451-52.
6
No. 31185-6-III
State v. Small
Before trial, and after extensive consideration, the trial court granted Mr. Small's
motion to sever trial of the counts related to the Burton crime from prosecution of the
2006 crimes. Mr. Small was eventually charged in this case with the attempted first
degree (premeditated) murder of Ms. Murphy, first degree rape, first degree burglary, and
forging the A TV title.
Following the severance ruling, Mr. Small moved in this case for an order
excluding all evidence of the indented writing. He argued, based on the reference to not
wanting to "tell you what happen [sic] 12 years ago," that the writing related to the
Burton crime and was irrelevant and prejudicial. The State argued that the writing
arguably related to both crimes and could reasonably be construed as a suicide note and
goodbye to family members, reflecting consciousness of guilt. 6
After further extensive consideration, the trial court ruled that the writing from the
inside front cover of the notebook-the first 11 phrases set forth above-would be
admitted, but that the writing from the notebook's top page-the next 18 phrases set forth
above, which spoke of"tell[ing] you what happen[ed] 12 years ago"-would not be.
At trial, the jury heard that Mr. Small's DNA was a match for the blood found on
Ms. Murphy's telephone. Ms. Murphy testified that in her effort to repel the rapist, she
6
At trial, the State offered and the court admitted the drugstore receipt found in
Mr. Small's duffel bag; the receipt reflected not only the January 23 purchase of a spiral
notebook, but the purchase of envelopes and a 32 ounce bottle of Drano as well.
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No. 31185-6-111
State v. Small
struck him with a rubber mallet and later with the telephone. Mr. Small's sister testified
that around the time frame of Ms. Murphy's assault, she observed a gash on the side of
Mr. Small's head. Detective Koplin told jurors that in providing a residential history, Mr.
Small omitted the fact that he had lived next door to Ms. Murphy. He told jurors that Mr.
Small's best friend lived across the street from Ms. Murphy at the time she was assaulted.
Jurors heard that Mr. Small left Omak without any word to his family within days
of providing the DNA sample that he knew would be compared to DNA recovered from
Ms. Murphy's home. (All evidence concerning the Burton crime was excluded by a court
order granting defense motions in limine.) The jury also heard that despite having
reported Mr. Small missing, his family did not notify the police when he returned.
Detective Koplin told jurors that Mr. Small told two different stories about what
happened to his duffel bag. The jury heard about the receipt, the notebook and some of
its indented writing-in accordance with the court's ruling, it heard about only the
writing found on its inside cover.
On the first day of deliberations, the jury deliberated to guilty verdicts on the
charges of first degree rape, first degree burglary, and forgery, and in special verdicts,
made findings that Mr. Small's conduct during the rape manifested deliberate cruelty, his
victim was particularly vulnerable or incapable of resistance, the burglary was committed
with sexual motivation, and was committed at a time when Ms. Murphy was in the home.
But it was unable to reach a verdict on the attempted first degree murder charge. In notes
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No. 31185-6-111
State v. Small
sent to the court by the presiding juror on the second day of deliberations, it was revealed
that after reaching a verdict on everything else, juror 12 struggled with the definition of
"intent" as it related to the attempted first degree murder charge. The court's response
directed jurors to its instruction defining "act[ing] with intent or intentionally," and
instructed them to continue deliberating. RP at 2595. After the jury remained
deadlocked, the court declared a mistrial on the attempted first degree murder charge.
At sentencing, the court found that an exceptional sentence was warranted for
reasons that the parties dispute in part, and that we examine further below. Mr. Small
appeals.
ANALYSIS
Forensic evidence of indented writing
We first address Mr. Small's challenge to the court's decision to admit a portion of
the indented writing over his objection. "A trial court's ruling on the admissibility of
evidence is reviewed for abuse of discretion." State v. Darden, 145 Wash. 2d 612, 619, 41
P .3d 1189 (2002). "A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or untenable reasons." Teter v. Deck, 174
Wn.2d 207,215,274 P.3d336 (2012).
Before trial, Mr. Small moved to exclude evidence of all of the indented writing
on the notebooks. The court and the lawyers recognized in arguing the motion that the
remorse and suicidal thoughts reflected in the indented writing on the front cover,
9
No. 31185-6-111
State v. Small
including the reference to "not going to prison for life," but "going to hell instead" could
reflect consciousness of guilt of the Murphy assault, or the Burton assault and murder, or
both, or neither. RP at 451. Mr. Small now argues that because the court knew the
writing might relate to multiple events or to another event, the evidence had "zero
tendency to make it more or less probable" that it reflected consciousness of guilt for the
Murphy murder. Br. of Appellant at 25. He contends the evidence should have been
excluded as irrelevant. We disagree.
Relevant evidence is "evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." ER 401. "The threshold to admit
relevant evidence is very low[; e]ven minimally relevant evidence is admissible."
Darden, 145 Wash. 2d at 621.
"It is an accepted rule that evidence of the flight of a person, following the
commission of a crime, is admissible and may be considered by the jury as a
circumstance, along with other circumstances of the case, in determining guilt or
innocence." State v. Bruton, 66 Wash. 2d 111, 112,401 P.2d 340, 341 (1965). "The
rationale of the principle is that flight is an instinctive or impulsive reaction to a
consciousness of guilt or is a deliberate attempt to avoid arrest and prosecution." Id.
Likewise, "[V]oluntary statements by one suspected or accused of crime relating
to facts or circumstances which indicate a consciousness of guilt ... are receivable in
10
No. 31185-6-111
State v. Small
evidence as admissions against interest." State v. Barnett, 70 Wash. 2d 420, 424, 423 P.2d
527 ( 1967). Such statements are admissible "even though explanations from the persons
making the statements might well render them less damaging or even innocuous." Id.
Finally, "courts have frequently held admissible evidence that the accused, after
the crime was committed, attempted to commit suicide." Dale Joseph Gilsinger,
Annotation, Admissibility ofEvidence Relating to Accused's Attempt to Commit Suicide,
73 A.L.R. 5th 615 (1999). Thoughts of suicide and threats of suicide have been held
admissible on the same rationale. Id. at§§ 4-5 (citing cases).
Evidence that days after Mr. Small provided DNA to compare to the Murphy
crime scene he wrote an apparent suicide note, expressing remorse and a desire not to go
to prison, unquestionably has a tendency to make it more probable that he committed the
crime than it would be without the evidence. The fact that he might have another
explanation for the note does not make it irrelevant. Cf State v. Piche, 71 Wash. 2d 583,
585,430 P.2d 522 (1967) (that defendant may, at the time of escape, be charged for other
offenses, "does not render proof of the escape irrelevant"). The fact that damaging
evidence "might induce one on trial for a crime to take the witness stand in explanation of
it gives no ground for excluding such evidence, for this objection could be made against
nearly all competent and material evidence tending to establish guilt or tending to
connect the defendant with ... events and circumstances from which guilt may
reasonably be inferred." Barnett, 70 Wash. 2d at 424.
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No. 31185-6-111
State v. Small
The trial court did not err in finding the evidence relevant.
Mr. Small argues, alternatively, that the evidence should have been excluded
under ER 403 because its probative value was substantially outweighed by the danger of
unfair prejudice or misleading the jury. "' "[U]nfair prejudice" is that which is more
likely to arouse an emotional response than a rational decision by the jury.'" State v.
Cronin, 142 Wash. 2d 568, 584, 14 P.3d 752 (2000) (alteration in original) (quoting State v.
Gould, 58 Wash. App. 175, 183, 791 P.2d 569 (1990)).
While Mr. Small characterizes his argument as concerned with unfair prejudice,
his real contention is that the State misled the jury because it did not disclose that Mr.
Small could have been concerned about the fact that his DNA was going to be compared
with evidence found at the Burton murder scene. The State wanted to tell the whole
DNA story, and it argued that it should be able to, relying on the res gestae and common
scheme and plan exceptions to ER 404(b). But over the State's opposition, the defense
successfully moved for orders in limine excluding evidence about Ms. Burton, her
murder, any other pending charges against Mr. Small, or any DNA analysis other than
that tying him to the Murphy assault. If the State "misled" the jury, it was because Mr.
Small asked that evidence about his full understanding of the planned DNA analysis be
withheld from jurors.
The in limine rulings did not prevent Mr. Small from offering evidence that he had
a different, and thereby relevant and admissible concern when he fled: viz., that he was
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No. 31185-6-111
State v. Small
concerned about his DNA being compared to evidence found at the scene of the rape and
murder of Ms. Burton, not about it being compared to evidence found at the scene of the
crime against Ms. Murphy. Even without Mr. Small taking the stand, his lawyer could
have inquired of Detective Koplin about this relevant, admissible other reason why his
client might have been remorseful, suicidal, and talking about going to hell rather than to
prison. The State would not have objected on ER 404(b) grounds.
For obvious reasons Mr. Small did not offer the evidence, but what is important is
that he could have. In the context of flight evidence, the prevailing view is that it may be
offered even if the defendant contends his flight was motivated by conscious guilt of a
different offense, even if offering that explanation "puts a defendant at an enormous
disadvantage." Clifford S. Fishman, 2 JONES ON EVIDENCE§ 13:5, at 477 (7th ed.
1994). 7
If a defendant has an innocent or mitigating explanation for evidence that might
otherwise incriminate, he or she must decide whether or not to take the stand. Ohler v.
7
Where evidence of flight could be explained by any of several pending charges
against a defendant, the treatise explains:
The prevailing view appears to favor admissibility, leaving it to the
jury to decide the weight the evidence is to be given. This obviously puts a
defendant at an enormous disadvantage: to explain, during his trial for a
particular crime, that he fled or escaped to avoid trial for an unrelated
crime, is not likely to win much sympathy from the jury, while revealing
evidence of an uncharged act that otherwise would be inadmissible.
Fishman, supra, at 477-78.
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No. 31185-6-111
State v. Small
United States, 529 U.S. 753, 757, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000). "The
criminal process, like the rest of the legal system, is replete with situations requiring 'the
making of difficult judgments' as to which course to follow." McGuatha v. California,
402 U.S. 183, 213, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971) (citing McMann v.
Richardson, 397 U.S. 759, 769, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)).
We reject Mr. Small's contention that his decision not to offer evidence of a
different source of guilt and remorse rendered evidence of the indented writing unfairly
prejudicial.
Sexual motivation enhancement
Mr. Small next argues the trial court erred when it added 24 months to his total
period of confinement under RCW 9.94A.533(8) because the statute authorizes (and
mandates) additional time where there is a finding of sexual motivation only "for felony
crimes committed on or after July 1, 2006." The burglary of Ms. Murphy's home,
alleged and found to be sexually motivated, occurred in February 2006.
The State concedes that the mandatory 24-month addition to the sentence was not
authorized given the date of the crime, but points out that the State had also asked the
court to impose an exceptional sentence in light of the jury's finding of sexual motivation
for the burglary. Because an addition to the sentence would be authorized as an
exceptional sentence under RCW. 9.94A.535(3)(f), the State argues that the erroneous
reliance on RCW 9.94A.533(8) was harmless. It argues that remand "is necessary only if
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No. 31185-6-111
State v. Small
it is not clear whether [the] trial court would have imposed the same sentence based on
valid factors alone" and contends that in this case, "the court's intent to impose [an]
exceptional sentence[ was] clear." Br. ofResp't at 35-36 (citing State v. Smith, 82 Wn.
App. 153, 161, 916 P.2d 960 (1996)).
It is not clear to us that the court would have imposed a discretionary exceptional
sentence based on the sexual motivation finding. The court did not increase Mr. Small's
sentence at all based on one of the aggravating circumstance found by the jury (that Ms.
Murphy was in her home at the time of the burglary), and in orally announcing its
sentencing decision, it thrice characterized the 24-month increase for the sexual
motivation finding as mandatory, not discretionary. See RP at 2 81 7-18 ("The Court is
also required to add," "There's a 24-month required for," and, "The Court is also required
to impose an additional sentence, under 9.94A.533(8) because of sexual motivation
involved in the burglary.").
We find no indication that the trial court would have imposed an exceptional
sentence for the burglary count 8 had it realized that the addition of 24 months presently
required by RCW 9.94A.533(8) did not apply. We remand for resentencing on the
burglary count.
8
The trial court would have to impose 267 additional months for the burglary
conviction to reach the same sentence of 380 months, since it ran the burglary sentence
concurrently.
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No. 31185-6-III
State v. Small
Constitutionality of instruction that jurors may have a "duty"
to find guilt
Finally, Mr. Small argues that the trial court committed manifest constitutional
error reviewable for the first time on appeal when it instructed the jury that "[i]f you find
from the evidence that each of these elements has been proved beyond a reasonable
doubt, then it will be your duty to return a verdict of guilty." CP at 197. He
acknowledges that Division One of this court rejected his arguments in State v.
Meggyesy, 90 Wash. App. 693, 958 P.2d 319 (1998), abrogated on other grounds by State
v. Recuenco, 110 P.3d 188, 154 Wash. 2d 156 (2005), but submits that Meggyesy was
wrongly decided. Br. of Appellant at 29-30 n.21.
Mr. Small makes this argument in an opening brief filed in June 2013. This
appeal was thereafter stayed because of a possible public trial issue that had been
presented for resolution in other cases and is now moot.
In the meantime, Mr. Small's challenges to the pattern instruction have been
rejected by each division of this court at least twice. State v. Moore, 179 Wash. App. 464,
318 P.3d 296 (2014) (Division One); Meggyesy, 90 Wn. App 693 (Division One); State v.
Bonisisio, 92 Wn. App 783, 964 P.2d 1222 (1998) (Division Two); State v. Brown, 130
Wash. App. 767, 124 P.3d 663 (2005) (Division Two); State v. Wilson, 176 Wash. App. 147,
307 P.3d 823 (2013) (Division Three); and State v. Nicholas, 185 Wash. App. 298, 341
P.3d 1013 (2014) (Division Three). In Nicholas, 185 Wash. App. 298, this court opened its
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No. 31185-6-111
State v. Small
opinion, "' We thought that this issue was resolved.'" Id. at 299 (quoting State v. Moore,
179 Wash. App. 464,465,318 P.3d 296 (2014).
At this point, it has been resolved. 9 The trial court did not err in giving the pattern
to-convict instruction with its "duty to return a verdict of guilty" language.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Small raises four. Some
are raised for the first time on appeal: his second (that Detective Koplin ignored Mr.
Small's request to call his lawyer at the time he provided the court-ordered saliva sample)
and portions of his third (that juror 12 reached verdicts on rape, burglary and forgery
without understanding the meaning of "intent" and that the jury's deliberations on those
three counts were too short to be fair). "RAP 2.5(a) states the general rule for appellate
disposition of issues not raised in the trial court: appellate courts will not entertain them."
State v. Guzman Nunez, 160 Wash. App. 150, 157, 248 P.3d 103 (2011), rev 'don other
grounds, 174 Wn.2d 707,285 P.3d 21 (2012} (citing State v. Scott, 110 Wash. 2d 682, 685,
757 P.2d 492 (1988)). We will entertain only those grounds raised by Mr. Small's SAG
9
Mr. Small states that in State v. Smith, 174 Wash. App. 359, 298 P.3d 785 (2013),
we suggested that the term "should" is a better term in the context of describing the
State's burden of proof than is "duty." Br. of Appellant at 48-49. But in Smith, we were
presented with an instruction that if the jury had a reasonable doubt it "should" return a
verdict of not guilty, instead of that it had a "duty" to do so. The instruction in that case
presented a risk that jurors could conclude from the court's instruction that "while jurors
with lingering doubts should return a verdict of not guilty, they did not have to." Smith,
174 Wash. App. at 369. Smith has no application here.
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No. 31185-6-111
State v. Small
that were preserved.
Unlawful search and seizure: second buccal swab. Several weeks before trial, the
State filed a motion for an order requiring Mr. Small to provide a sample of his saliva for
DNA testing, despite already having the sample he voluntarily provided in 2010.
"Swabbing a cheek to procure a DNA sample constitutes a search under the Fourth
Amendment [to the United States Constitution] and article I, section 7" of the
Washington Constitution. State v. Garcia-Salgado, 170 Wash. 2d 176, 184, 240 P.3d 153
(2010). Warrantless cheek swabs are per se unreasonable under both constitutions. Id.
CrR 4.7(b)(2)(vi) creates a limited exception to the warrant requirement and permits a
trial court to order a criminal defendant to allow the State to take samples from the
defendant's body where the following requirements are met:
[A] CrR 4.7(b)(2)(vi) order must be entered by a neutral and detached
magistrate; must describe the place to be searched and items to be seized;
and must be supported by probable cause based on oath or affirmation; and
there must be a clear indication that the desired evidence will be found, the
method of intrusion must be reasonable, and the intrusion must be
performed in a reasonable manner.
Garcia-Salgado, 170 Wash. 2d at 186.
Mr. Small argued in opposition to the State's motion that since the State already
had possession of a sample for DNA testing, it must show an actual need for a further
sample. The State's motion had expressed only vague concerns, based on Mr. Small's
retention of a consulting DNA expert and certain defense requests, that Mr. Small might
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No. 31185-6-III
State v. Small
challenge the validity of the earlier-provided sample and testing. The State conceded it
was unaware of any problem with its testing, which it would have been required to
reveal. 10
The trial court found that the State had made the showing required by CrR
4.7(b)(2)(vi) and Garcia-Saldago, including by demonstrating probable cause through
Detective Koplin's sworn probable cause report and the affidavit of a deputy prosecutor.
The court's principal concern was with delay and possible prejudice to Mr. Small; in that
connection, it ordered Mr. Small to provide the sample but reserved the right to suppress
the further analysis if it unfairly prejudiced Mr. Small or did not permit adequate trial
preparation.
The trial court "[found] no legal authority supporting Defendant's argument that
the State must show necessity or certainty for collecting another saliva sample. The
State's purpose is reasonable. No showing beyond that is required." CP at 609.
In his SAG, Mr. Small renews this argument and also argues conclusorily that the
State did not demonstrate facts and circumstances supporting a reasonable inference that
he was probably involved in criminal activity and that evidence of the crime could be
10
The defense later argued to the jury at trial that the initial DNA testing was
suspect due to a contamination issue that arose in connection with some of the crime lab
work, and because Mr. Small's original buccal swab had been sent to the lab along with a
swab from another suspect.
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No. 31185-6-111
State v. Small
found at the place to be searched. See State v. Neth, 165 Wash. 2d 177, 182, 196 P.3d 658
(2008).
The probable cause report and prosecutor's affidavit demonstrate probable cause.
The argument that the State was required to demonstrate an actual need for the second
sample continues to suffer its original infirmity: Mr. Small still lacks any legal authority
that supports the argument. The court did not err in granting the State's motion.
Juror misconduct. It was reported by the presiding juror on the second day of
deliberations that juror 12 wanted a further definition of "intent" and later, that juror 12
admitted to fellow jurors that he looked up "intent" in a dictionary the night before. Mr.
Small contends that this juror misconduct deprived him of a fair trial and the court should
have declared a mistrial on all counts. Mr. Small moved for a mistrial in the trial court
based on juror 12's misconduct but he suggested "alternatives" and arguably agreed with
the course of action ultimately taken by the court. RP at 2747, 2751. We will
nonetheless consider this issue.
A trial court should grant a mistrial when an irregularity in the trial proceedings is
so prejudicial that it deprives the defendant of a fair trial. State v. Babcock, 145 Wn.
App. 157, 163, 185 P.3d 1213 (2008). Because the trial judge is in the best position to
determine the prejudice of circumstances at trial, an appellate court reviews the decision
to grant or deny a"mistrial for abuse of discretion. Id.
In this case, the trial court refused to declare a mistrial because its instruction 11 to
20
No. 31185-6-111
State v. Small
the jury defined when "[a] person acts with intent or intentionally," the jury had
deliberated to a verdict on three of the counts before juror 12 consulted the dictionary,
and the trial court intended to remind jurors to follow instruction 11. CP at 199 (Jury
Instruction 11 ). The court explained to counsel that it viewed the misconduct as
harmless, "because they have to use [the court's] definition." RP at 2749. It then called
in the jury and told them, in part:
Intent is defined in Instruction number 11. You must base your decision on
the instructions and evidence you have received. So the definition of intent
that you must use, the legal definition of intent is ... in Instruction 11. The
law does not permit me to give you any other instruction about the
definition of intent, or to interpret that instruction for you. This is the
definition of intent. Please use Instruction number 11.
The jury will go back to the jury room and continue deliberating,
please.
RP at 2755.
Among the factors examined in determining whether a trial irregularity deprived a
defendant of a fair trial is whether the irregularity can be cured by an instruction-an
instruction that the jury is presumed to follow. Babcock, 145 Wash. App. at 163. The trial
court's direction to the jury to use the definition in instruction 11 could not have been
clearer, and we presume it was followed. The trial court did not abuse its discretion in
denying the motion for a mistrial.
Unlawful search and seizure of duffel bag. Finally, Mr. Small renews his
argument made in the trial court that the warrantless search of his duffel bag was
21
No. 31185-6-III
State v. Small
improper because he never abandoned it. He claims to have had a reasonable expectation
of privacy in luggage left behind in a hotel room, given the hotel's policy of holding
items in lost and found for 30 days. He asks us to reverse and remand for a new trial at
which the evidence discovered in the bag will be excluded.
Courts employ a two-prong test to determine whether a defendant had a reasonable
expectation of privacy in the contents of items searched: "(1) Did he 'exhibit an actual
(subjective) expectation of privacy by seeking to preserve something as private?' and (2)
'[d]oes society recognize that expectation as reasonable?"' State v. Evans, 159 Wn.2d
402,409, 150 P.3d 105 (2007) (alteration in original) (quoting State v. Kealey, 80 Wn.
App. 162, 168, 907 P.2d 319 (1995)).
When denial of a motion to suppress is challenged, we review the trial court's
findings of fact under the substantial evidence standard and review its conclusions of law
de novo. State v. Levy, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006). Substantial evidence
is evidence sufficient to persuade a fair-minded, rational person of the truth of the
finding. Id. Unchallenged findings are verities on appeal. Id.
Mr. Small has failed to designate the trial court's findings and conclusions on the
suppression motion as part of the record on review, so we rely on the findings and
conclusions stated by the trial court when it orally denied the motion. See RP at 606-09.
We note that Mr. Small improperly relies on the trial record for this argument on appeal.
The only evidence we consider in reviewing a pretrial decision is the evidence that was
22
No. 31185-6-111
State v. Small
presented to the court in connection with the motion.
Luggage is recognized as a "' traditional repository of personal belongings
protected under the Fourth Amendment.'" Evans, 159 Wash. 2d at 409 (quoting Kealey, 80
Wash. App. at 170). But even for items in which a reasonable expectation of privacy
exists, "One of the exceptions to the warrant requirement is for voluntarily abandoned
property." Id. at 407.
There is a reasonable expectation of privacy in a motel room during one's tenancy,
but "[t]his expectation ... does not survive the expiration of the tenancy, unless the motel
has accepted late payment and/or tolerated overtime stays in the past." State v. Davis, 86
Wn. App. 414,419,937 P.2d 1110 (1997).
The trial court found that Mr. Small stayed at the Las Vegas hotel for
approximately seven days and left without paying for the last day's charge for his room,
taking some property with him, but leaving his duffel bag behind. The court found that
when interviewed by police, Mr: Small said he left the bag behind because it was just
dirty clothes. Substantial evidence supports these findings.
The trial court perceived Mr. Small as conceding he knew or should have known
that the hotel would open and inventory the bag, but in any event, the trial court found
that to be the only reasonable expectation:
When you leave something behind at a hotel, they're going to open it up
and look at it. You do not expect it to be held privately. You're not-You
just abandon it. You left it there. The hotel doesn't have any obligation to
23
No. 31185-6-111
State v. Small
not let anybody look at it. The reason the hotel holds onto is to avoid--to
provide it to the customer who happens to leave something behind, and
they have a blanket policy, apparently, whether it's your cell phone cord,
your shaver, one of your bags, whatever it is, they keep it up to 30 days, but
you don't have privacy in it because they look at it, they inventory it. They
don't assume any obligation for holding it privately. They don't assume
any-holding it in privacy.
So there's no--The defense has offered no evidence that he expected
the bag to be preserved as private, or that he intended to retrieve it. There
is no evidence that society would recognize the privacy of a duffel bag
abandoned in these circumstances. There just is no privacy issue here.
RP at 607-09.
The trial court's findings support its conclusion that the duffel bag was abandoned.
We affirm the convictions and remand for resentencing on the burglary count. 11
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J.
j
11
Because Mr. Small partially prevailed, his motion asking that we deny the State
costs on appeal is moot.
24