FIL F- D
MU T OF
ZP1pEAL: S
2019 FEB 1 IIi Sc 37
C f
DE T
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 42659 -5 -II
Respondent, UNPUBLISHED OPINION
V.
DESHAN AKEEM WATSON,
0
BJORGEN, J. — Deshan Akeem Watson appeals the trial court' s denial of his motions for
post- conviction deoxyribonucleic acid (DNA) testing. He asserts that the trial court erred in
denying his motions, because they satisfied the requirements of the post- conviction DNA testing
statute, RCW _
1073.170_ Because_any_
error in the trial court' s consideration of Watson' s post _
conviction DNA testing motions is harmless, we affirm.
FACTS
Andrew Blaine lived in a house in Clark County, Washington with his brother, Joshua
Blaine, Ann Westelin, and Matthew Halligan. Halligan sold marijuana out of the home. Watson
denied knowing Halligan, but admitted that he may have purchased marijuana at his house.
No. 42659 -5 -II
On the morning of February 14, 2003, Andrews and Halligan were at home when Andrew
woke up and heard voices outside his closed bedroom door. Andrew opened his door and was
rushed" by a man in a black mask and black clothing. Report of Proceedings ( RP) at 149. The
man struck Andrew in the face with an object that appeared to be a firearm and pushed him onto
the floor. Andrew saw a different man, wearing a black ski mask and with corn rows in his hair,
wrestling with Halligan in Halligan' s bedroom. When the man who attacked Andrew walked
over to Halligan' s room, Andrew fled the house. Once outside, Andrew decided to return to the
house to help Halligan and found him on his bed with a puncture wound in his chest. Halligan
later died at the hospital. Officers found digital scales and sandwich bags containing green
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vegetable matter in Halligan' s bedroom. Officers also found a stocking cap, a neoprene face
mask and a handgun magazine in the house. Watson acknowledged that he used to own a cap
and face mask like those found in Halligan' s house, but stated that he had not seen the items
since November 2002. Watson further acknowledged that it was possible that the cap and face
mask found by police could be the same ones that he had owned. Neither Andrew, Joshua nor
Westelinrecognized the mask. -- - - --
s We refer to Andrew Blaine and Joshua Blaine by their first names. We intend no disrespect.
2
They additionally recovered a roll of duct tape. Fingerprints on the duct tape were traced to
Tricia Jolene Stuckey, who did not testify. Based on stipulated facts presented to the jury,
Stuckey was a clerk at a local 24 -hour food market and regularly smoked marijuana. She did not
recall selling the roll of duct tape and she did not recognize Halligan' s name, although she " may
have purchased marijuana from [ him] without knowing who he was." Report of Proceedings at
451.
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No. 42659 -5 -II
Washington State Patrol forensic scientist Will Dean tested the neoprene mask and wool
cap using short tandem repeat ( STR) testing. Dean found more than one person' s DNA on each
tested object, called a " mixed sample." RP at 471 -72. With respect to the mask, Dean
concluded that Watson' s DNA profile was a possible contributor to the mixed DNA sample.
Dean set the statistical comparison at 1 in 20 million, meaning approximately 14 people in the
United States would share that DNA profile. Dean classified Watson' s DNA profile as one of
two " major contributors" of DNA evidence on the mask. RP at 471 - 72, 525. Vanora Kean, a
defense DNA expert, acknowledged that Watson' s DNA profile was a contributor to the mixed
DNA sample found on the mask, but set a statistical comparison of 1 in 2 million.
Brandon Lockwood testified that a few days before February 14, he, Watson, and Ray
Suggs boarded a bus together and that, while riding the bus, Suggs told Watson that he had .
purchased marijuana from Halligan and knew where Halligan stored his marijuana. Lockwood
also stated that Watson and Suggs discussed how they " could go into [ Halligan' s] house and ...
hold him at gunpoint and scare him and just take his weed." RP at 320. Lockwood testified that
Watsori told Suggs that he could obtain arevolver and ski masks.- Lockwood -
further testified - - -- --
that both Suggs and Watson had corn row style hair at the time he rode the bus with them. A day
3
or two later, Lockwood learned of Halligan' s murder and spoke to the police.
On February 3, 2005, the State charged Watson by amended information with first degree
murder and second degree assault. The State also alleged that Watson was armed with a firearm
3 Lockwood initially testified that he recalled officers " coming and talking to" him about the bus
ride. RP at 326, 412. On cross -examination, he testified that he initiated a call to the police after
speaking with his mother and sister.
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No. 42659 -5 -II
during the commission of both offenses. A jury returned verdicts finding Watson guilty of first
degree murder and second degree assault and returned special verdicts finding that he was armed
with a firearm during the commission of both offenses.
On May 12, 2011, Watson filed a motion pursuant to RCW 10. 73. 170 for post- conviction
DNA' testing of the face mask found at the crime scene. Watson argued that a more accurate
form of DNA testing was available and that retesting the mixed DNA sample from the mask
could eliminate him as a potential match. The trial court denied Watson' s motion in a letter
ruling on May 18, 2011, on the ground that " DNA testing was completed, and the defense had
their own DNA expert at trial." Supp. CP at 39. After Watson filed an appeal, we advised him
that the trial court' s letter denying his request for post- conviction DNA testing "[ was] not a
decision of the trial court appealable as a matter of right" and that he needed a final order from
the trial court denying his motion in order to proceed with his appeal. Supp. CP at 41.
On July 5, 2011, the trial court denied Watson' s request to enter a final order, and we
subsequently dismissed his appeal. On September 12, 2011, Watson filed a second request for
post -conviction-DNA testingwith the trial court forthe same reasons-set out-in-his- original - -- - -- - - - - - -
motion. The trial court responded that "[ n] o action" would be taken on the motion. Supp. CP at
50. On October 6, 2011, Watson again appealed the trial court' s response to his motion, and we
accepted his appeal. Watson timely appeals the trial court' s denial of his motion for post-
conviction DNA testing.
ANALYSIS
Watson contends that the trial court abused its discretion by denying his motions for post-
conviction DNA testing. Because Watson' s motions failed to satisfy the substantive
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No. 42659 -5 -II
requirements of the post- conviction DNA statute, RCW 10. 73. 170, any error in the trial court' s
consideration of his motions was harmless and, thus, we affirm the trial court' s ruling.
We review a trial court' s ruling on a motion for post -conviction DNA testing for an abuse
of discretion. State v. Thompson, 173 Wn.2d 865, 870, 271 P. 3d 204 ( 2012). A trial court
abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v.
Magers, 164 Wn.2d 174, 181, 189 P. 3d 126 ( 2008).
RCW 10. 73. 170 allows a convicted person serving a prison sentence to request post-
conviction DNA testing, stating in relevant part:
1) A person convicted of a felony in a Washington state court who currently is
serving a term of imprisonment may submit to the court that entered the judgment
of conviction a verified written motion requesting DNA testing, with a copy of the
motion provided to the state office of public defense.
2) The motion shall:
a) State that:
i) The court ruled that DNA testing did not meet acceptable scientific
standards; or
ii) DNA testing technology was not sufficiently developed to test the
DNA evidence in the case; or
iii) The DNA testing now requested would be significantly more accurate
than prior DNA testing or would provide significant new information;
b) Explain - why DNA evidence is- material- to the -- identity of--the--- - — —
perpetrator of, or accomplice to, the crime, or to sentence enhancement; and
c) Comply with all other procedural requirements established by court
rule.
3) The court shall grant a motion requesting DNA testing under this
section if such motion is in the form required by subsection ( 2) of this section, and
the convicted person has shown the likelihood that the DNA evidence would
demonstrate innocence on a more probable than not basis.
To be entitled to post- conviction DNA testing under RCW 10. 73. 170, the " person
requesting testing must satisfy both procedural and substantive requirements." State v. Riofta,
166 Wn.2d 358, 364, 209 P. 3d 467 ( 2009). Specifically,
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No. 42659 -5 -II
The motion must state the basis for the request, explain the relevance of
the DNA evidence sought, and comply with applicable court rules. RCW
10. 73. 170( 2)( a) -(c). If the petitioner satisfies these procedural requirements, the
court must grant the motion if it concludes the petitioner has shown the
likelihood that the DNA evidence would demonstrate innocence on a more
probable than not basis." RCW 10. 73. 170( 3).
Riofta, 166 Wn.2d at 364.
Because it is determinative of the issues before us, we address only the substantive
requirement of RCW 10. 73. 170. In contrast with the " lenient.' procedural requirements of RCW
10. 73. 170( 2), the substantive requirement of RCW 10. 73. 170( 3) is " onerous." Riofta, 166
Wn.2d at 367.
In determining whether a convicted person " has shown the likelihood that
the DNA evidence would demonstrate innocence on a more probable than not
basis," a court must look to whether, viewed in light of all of the evidence
presented at trial or newly discovered, favorable DNA test results would raise the
likelihood that the person is innocent on a more probable than not basis. The
statute requires a trial court to grant a motion for postconviction testing when
exculpatory results would, in combination with the other evidence, raise a
reasonable probability the petitioner was not the perpetrator.
Riofta, 166 Wn.2d at 367 -68.
Here.-the trial -
court denied Watson's first motion for post- conviction DNAtesting-in-a- -
letter ruling that stated, " DNA testing was completed, and the defense had their own DNA expert
at trial." Supp. CP at 39. In response to Watson' s second motion, the trial court merely
responded that "[ n] o action" would be taken. Supp. CP at 50. The trial court' s letter ruling and
its response to Watson' s second motion are unclear as to whether it had properly evaluated the
likelihood that a favorable DNA test would demonstrate Watson' s innocence by a preponderance
of the evidence. However, even assuming without deciding that the trial court' s stated reasons
for denying Watson' s motion were inadequate under the statute, we hold that any error would be
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No. 42659 -5 -II
harmless. Nonconstitutional error requires reversal only if, "
within reasonable probabilities," the,
outcome of the proceeding " would have been materially affected had the error not occurred."
State v. Crenshaw, 98 Wn.2d 789, 800, 659 P. 2d 488 ( 1983) ( citing State v. Tharp, 96 Wn.2d
591, 637 P. 2d 961 ( 1981)). Here, Watson cannot demonstrate that the outcome of his proceeding
STR4
would have differed had the trial court made a proper inquiry because, even if a new Y - test
eliminated Watson as a possible contributor to the DNA sample taken from the mask, it would
not demonstrate his innocence on a more probable than not basis.
At trial, the State presented Lockwood' s testimony that he had heard Suggs and Watson
plan to steal marijuana from Halligan using a revolver and face masks. Lockwood' s description
of Suggs' s and Watson' s hair matched Andrew' s description of one of the men who had attacked
him and Halligan. Additionally, Watson admitted that he may have purchased marijuana at
Halligan' s house in the past. Watson also admitted that he had owned a mask and cap that
resembled those found by the police at Halligan' s home and that the mask and cap found by
police could have been the same cap and mask that he owned. This all constitutes evidence of
Watson' s guilt-that wouldnot-beeundermined by a newDNA test eliminating himas a
contributor to the DNA found on the mask.
In his brief on appeal, Watson concedes that even if his " DNA was eliminated from the
mask, it would not preclude him being the second person in the house." Br. of Appellant at 16.
He nonetheless argues that he meets the substantive requirement of RCW 10. 73. 170( 3) because a
4 In October 2009, the Washington State Patrol added Y -STR analysis technology to its DNA
testing technology. See http:// www.wsp . a.gov.forensics /docs. crimelab news 0610. pdf.
w
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favorable DNA test would " eliminate [ him] as a donor in the mind of the jurors." Br. of
Appellant at 16. RCW 10. 73. 170( 3), however, requires more. than a showing that a DNA test
may result in evidence favorable to the petitioner; to receive a new DNA test, the petitioner must
show that the " DNA evidence would demonstrate innocence on a more probable than not basis."
RCW 10. 73. 170( 3) ( emphasis added). As our Supreme Court has noted, " The legislature' s use
of the word `innocence' indicates legislative intent to restrict the availability of postconviction
DNA testing to a limited class of extraordinary cases where the results could exonerate a person
who was wrongfully convicted of a crime." Riofta, 166 Wn.2d at 369 n.4. In light of all the
evidence presented at trial, and by Watson' s own concession on appeal, a favorable DNA test
would not exonerate him of his convictions. Accordingly, we hold that any error in the trial
court' s consideration of Watson' s motion for post- conviction DNA testing was harmless and we
affirm.
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 in accordance with RCW
rtissoor ere .
B ' RGE J.
u
We concur:
1VIAAA, J.
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