IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE gs
STATE OF WASHINGTON, No. 68915-1-1
ro
Respondent,
v. UNPUBLISHED OPINION 9?
KEAYN DUNYA,
Appellant. FILED: January 20, 2015
Schindler, J. —A jury convicted Keayn Dunya of murder in the first degree of
Kriston Dunya. By special verdict, the jury found Dunya was "armed with a firearm at
the time of the commission of the crime." Dunya appeals, arguing (1) the DNA1 testing
violated his right to due process, (2) the court erred in allowing expert testimony on
infrared video analysis and reverse projection photogrammetry, and (3) the jury verdict
did not authorize the imposition of a firearm enhancement. We affirm.
FACTS
Keayn and Kriston Dunya married and had a child together, K.D. In 2010,
Kriston filed for dissolution of the marriage. Kriston sought joint custody of K.D. and
child support. Dunya would not agree to entry of the final orders in the dissolution
action. The dissolution trial was scheduled to begin on July 28, 2011.
1 Deoxyribonucleic acid.
No. 68915-1-1/2
Kriston worked at the Barnes & Noble store in Bellingham. On Saturday, July 2,
2011, Kriston and Amber Wilson worked the late shift at Barnes & Noble. Kriston and
Wilson made plans to go for a walk on July 3. Kriston was scheduled to be off work the
next day and return to work on July 4. Kriston left the store at approximately 11:30 p.m.
On July 3, Wilson sent Kriston several text messages but received no response.
On July 4, Kriston did not come to work or answer her phone. That evening,
Barnes & Noble supervisor Robinson Whitney drove past Kriston's apartment "to see if
she was home." Whitney saw the "outdoor light" on and noticed Kriston's car parked in
front of the building. When Kriston did not come to work on July 5, Whitney returned to
Kriston's apartment. Whitney knocked but there was no response. Whitney then
looked through a window and saw Kriston lying on the apartment floor. The door to the
apartment was unlocked. Whitney opened the door and yelled Kriston's name. When
Kriston did not respond, Whitney called 911.
The police found Kriston's purse near her body. The purse contained her
identification and credit cards. Scattered around the floor near her body were Vicodin
pills. The police also found fingertip pieces from a yellow rubber latex glove on the floor
and a bullet embedded in the carpet near her body. Kriston did not have any
prescriptions or bottles for Vicodin.
Detective Joseph Leighton met with Dunya on July 5. Dunya told Detective
Leighton that he and his son K.D. were with his girlfriend Kara Buchanan at her home
on Whidbey Island the entire July 4 weekend. Buchanan confirmed that Dunya had
been with her the entire weekend. Buchanan told Detective Leighton that Dunya and
No. 68915-1-1/3
K.D. arrived Friday evening, July 1, and left around 4:00 or 5:00 p.m. on Monday, July
4.
The medical examiner determined that the single gunshot wound to the chest
caused Kriston's death on July 3. The gunshot was from such close range that her face
was "tattoo[ed]" with gunpowder.
The police obtained surveillance videotapes from several nearby locations. The
video from an adjacent building showed that during the early morning hours of July 3, a
Toyota Avalon drove past Kriston's apartment and parked in a lot nearby. The Toyota
Avalon has a sunroof and an American flag decal on the left side of the rear bumper.
The right auxiliary light of the car is out and the driver's door mirror is broken off.
At approximately 4:51 a.m., a person gets out of the Toyota Avalon, puts on a
jacket, and grabs an object that appears to be a long barrel gun. The jacket has a hood
and two vertical stripes running from the neckline down the outer portion of the sleeves
to the cuffs. At approximately 4:53 a.m., the person walks toward Kriston's apartment
holding what appears to be a long barrel gun on the right side. Three minutes later at
approximately 4:57 a.m., the same person returns carrying the long barrel gun, gets into
the Toyota Avalon, and drives away.
On July 7, Buchanan called and left a voicemail for Detective Leighton. In the
message, Buchanan tells Detective Leighton that she shot Kriston and provides details
of the shooting that had not been released to the public. Buchanan states that she
plans to kill herself.
After receiving the voicemail, Detective Leighton contacted Island County police.
The Island County police found Buchanan at a beach on Whidbey Island with an empty
No. 68915-1-1/4
pill bottle of Vicodin and bleeding profusely from cuts to her wrists. An extra-large
hooded red jacket with stripes on both sleeves was in the backseat of Buchanan's
Dodge Durango. In the ambulance on the way to the hospital, Buchanan told Detective
Jana Bouzek that she did not harm Kriston and that she had never been to Kriston's
apartment.
Police searched Buchanan's residence. A gold Toyota Avalon that matched the
vehicle in the surveillance video was parked in the carport at Buchanan's home. During
a search of the house, police found a long barrel 20-gauge pump shotgun, a 20-count
package of yellow rubber latex gloves with one glove missing, and a bag of burnt plastic
debris.
On July 13, the State charged Dunya and Buchanan with the first degree murder
of Kriston while armed with a firearm. The police obtained DNA samples from both
Dunya and Buchanan.
On July 15, Dunya's attorney filed a "Notice of Appearance, Demand for
Discovery, Not Guilty Plea and Demand for Jury." The Notice of Appearance requests
copies of all police records, witness statements, police notes, "copies of any reports or
laboratory or fingerprint tests, autopsy reports, photographs and breathalyzer or blood
test," and "all documents, writings and things that are evidence." The Notice of
Appearance also asked for "a list of all persons . .. having knowledge or information
concerning the incident(s)[,] any and all search warrants, supporting affidavits, and
returns executed in the investigation," and "notice before any evidence or potential
evidence relating to the above action is released by the Plaintiff or destroyed or before
any testing of said evidence occurs."
No. 68915-1-1/5
The Washington State Patrol Crime Laboratory (WSPCL) determined that the
weapon used to kill Kriston was likely a 12-gauge shotgun. Toxicology reports found no
drugs or alcohol in her system at the time of death.
On August 30, WSPCL forensic scientist Mariah Low informed Bellingham Police
Department Evidence Superintendent Les Gifts that she had obtained a very small
amount of DNA from two of the yellow latex glove pieces found near Kriston's body.
Low told Superintendent Gifts that she believed she could extract a DNA profile but the
test would likely consume the entire sample. Following WSPCL protocol, Low
requested authorization to perform the DNA testing.
On September 7, 2011, the prosecutor sent a written response authorizing Low
to perform DNA testing.
I am writing about the [State v. Dunya & Buchanan] case and
evidence that has been sent to your laboratory for examination. In
speaking with Sergeant Les Gifts he has indicated that the following items
cannot be examined for DNA without potentially consuming the samples:
1. Shotgun #100140
2. Pieces of rubber/latex gloves #100067
3. Gloves #100332
4. Blood
I would ask you to go ahead with your analysis, notwithstanding the
fact that the samples may be consumed in the process.
On October 10, the WSPCL issued a report on the DNA testing. The glove
pieces contained a mixed sample of DNA from at least two people. The DNA profile of
Dunya matched the profile of the major contributor of the DNA on the glove pieces.
There was not enough information to determine the minor contributor. The WSPCL
produced copies of all documentation related to the DNA testing and analysis to the
defense.
No. 68915-1-1/6
The defense filed a motion to suppress the DNA evidence. Dunya argued the
prosecutor's failure to notify the defense that the test would result in consumption of the
entire DNA sample violated his right to due process.2 The prosecutor submitted an
affidavit stating that his failure to notify the defense of the DNA testing was an
unintentional "oversight."
The court found "no showing of bad faith" and denied the motion to suppress.
However, the court ruled that the defense could "inquire thoroughly about the
circumstances" concerning the DNA testing at trial.
Before trial, Buchanan pleaded guilty to the lesser charge of rendering criminal
assistance in the first degree and agreed to testify against Dunya.
The State called approximately 18 witnesses to testify at trial. The court admitted
into evidence more than 100 exhibits, including video clips and stills from the
surveillance tapes, evidence seized at the crime scene and during the search of
Buchanan's house, phone records, and the voicemail from Buchanan to Detective
Leighton confessing that she killed Kriston. The defense theory was that Buchanan or
an unknown person killed Kriston.
Nancy Parker lived in the apartment above Kriston. Parker testified that in the
early morning hours of July 3, she heard "a male voice mumbling for a couple
minutes, ... a very brief scream and then ... a bang-bang that at that time Ithought
was a door slamming." Parker testified that after the "bang-bang" noise there was
silence.
2Dunya also argued the prosecutor's failure to notify the defense before authorizing the DNA
testing violated the WSPCL policies and procedures. However, there was no dispute theWSPCL
followed adopted policies and procedures before conducting DNA testing.
No. 68915-1-1/7
Detective Richard Schwallie testified about the police investigation and the video
obtained from the surveillance cameras located at the adjacent building. Detective
Schwallie explained that because of the lack of ambient light in the early morning hours
of July 3, the cameras were in "night mode" and used "an infrared illuminator and
infrared filter to capture the images." Detective Schwallie testified about his experience
with infrared imaging. Detective Schwallie said infrared mode "throws out the color
component," resulting in "a distortion of tone."
The court admitted into evidence video clips and still shots of the individuals in
the surveillance video. Detective Schwallie testified that the person shown in the
surveillance video at approximately 5:00 a.m. on July 3 appeared "to have a darker
complexion" compared to other people captured on the surveillance video earlier that
morning or the night before.
Detective Schwallie testified that he used reverse projection photogrammetry to
determine the height of the person in the video. Buchanan was approximately 5 feet 3
inches tall and Dunya was approximately 5 feet 10 inches tall. Using the same cameras
at the same location and camera angle, Detective Schwallie recorded a female officer
between 5 feet 3 inches and 5 feet 4 inches tall, and a male officer who was 5 feet 10
inches tall. Detective Schwallie testified that the height of the person in the video on
July 3 was "closer to five foot ten and . . . definitely appeared to be a larger body build
than our 5-foot four female." The court admitted into evidence still shots from the
cameras showing the height of the two officers as compared to the person in the video.
The still shots are superimposed over images of the person in the video.
No. 68915-1-1/8
Detective Michael Mozelewski testified that Whidbey Island is located
approximately 87 miles from Bellingham and it takes approximately one hour and 54
minutes to drive from Whidbey Island to Bellingham.
Amber Wilson testified that Kriston was seeking custody of K.D. and that Kriston
wanted to move back to Missouri with her son. The attorney representing Kriston in the
dissolution action testified that Dunya objected to the order of child support and "refused
to sign" any temporary orders.
Buchanan testified that she met Dunya in August 2010 and they began dating in
April 2011. Buchanan said she went to Bellingham every Wednesday to spend the
night with Dunya and he would come to her house on Whidbey Island on "various
weekends," often with his son K.D. Buchanan said Dunya told her he had been
divorced for several years. Buchanan said she was in love with Dunya.
Buchanan testified that in late May or early June 2011, Dunya described his
"dark side" and said that "he was going to kill his wife." Buchanan said she did not "take
him seriously."
Q. Did he ever mention that he would be doing something to Kriston
Dunya, his wife, or he led you to believe his ex-wife?
A. Urn, there was once earlier in the relationship when we were driving
down the Island, we were talking about personality traits and he
mentioned he had a dark side, if I couldn't handle it, don't ask about
it. And I sort of shrugged my shoulders and rolled my eyes and I
said, okay, I can deal with it. Tell me what it is. And he said he
was going to kill his wife and I just laughed it off. I didn't think
anything of it.
Q. Did you take him seriously at that point at all?
A. Not in that regard, no.
Buchanan said that Dunya and K.D. spent the July 4 holiday weekend with her
on Whidbey Island. But Buchanan testified that when she woke up around 3:00 a.m. on
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No. 68915-1-1/9
July 3, Dunya was not in bed. When Buchanan got up around 6:00 a.m., Dunya still
"wasn't there" and she noticed that his cell phone was on the nightstand. Buchanan
checked on K.D. and then went outside. Buchanan said Dunya's truck was parked
outside but her gold Toyota Avalon "was gone." Buchanan testified that Dunya had
never taken her car before and had not mentioned anything about leaving early in the
morning.
After Buchanan went back inside, she checked Dunya's cell phone and
discovered "text messages from multiple women." Buchanan said it appeared that
Dunya "had multiple relationships other than ours." Buchanan was upset and called her
husband in Minnesota to tell him she thought her relationship with Dunya was over.
The cell phone records show that at 6:22 a.m. on July 3, Buchanan called a number in
Minnesota. The call from Buchanan on Whidbey Island to her husband in Minnesota
lasted 25 minutes.
Buchanan testified that Dunya returned later that morning driving her Toyota
Avalon. Dunya parked the car in the carport. Buchanan testified that Dunya put her red
jacket with stripes on the sleeves into the washing machine. Shortly after Dunya
returned, Buchanan saw him next to the Toyota with his left hand on the trunk of the car
and his right hand holding a five-gallon bucket wrapped in a clear garbage bag. When
Dunya saw Buchanan, he told her to "get back in the house." Buchanan watched from
the window as Dunya took the bucket and a fire extinguisher to the backyard. After
Dunya and K.D. left the next morning, Buchanan found a burn spot in the grass and a
hard piece of plastic.
No. 68915-1-1/10
On July 6, Buchanan drove to Dunya's apartment in Bellingham to take care of
K.D. while Dunya was at work. After she received a call from the Bellingham Police
Department, she immediately sent Dunya a text message. In the text, Buchanan asked
Dunya why the police wanted to talk to her. Dunya responded that the police wanted
Buchanan to "confirm that he was with [her] that weekend" and that she "was to let them
know that he was."
On July 7, Buchanan decided to call Dunya and confront him about seeing other
women.
I said give me a detail. Keayn give me a detail. What happened. And
instead of telling me he was having an affair, what he said was single shot
to the chest, blood splatter all over the apartment. And I don't remember
ending the conversation on the phone.
Buchanan testified that after the call, she went home, "grabb[ed] my pills and an
Exacto knife," drove to the beach, and swallowed 90 Vicodin pills.3 After taking the
Vicodin, Buchanan called Detective Leighton and confessed to killing Kriston.
Buchanan said that she confessed because she did not want K.D. to grow up without a
father and K.D. "was [her] only concern at that point." Buchanan explained that in order
to convince the police she had killed Kriston, she included as many details as she could
remember based on what she observed, what Dunya had told her, and the questions
the police had asked her.
On cross-examination, Buchanan stated that she had "an aspect of [her]
personality" she referred to as "monster" that "comes out to protect [her] inner child."
Buchanan testified that she sometimes referred to her "monster" in conversations and
text messages with Dunya and others but did not remember talking to the police about
3 Buchanan testified she had a Vicodin prescription for chronic plain and had shared her
medication with Dunya after he told her he had been in a car accident.
10
No. 68915-1-1/11
it. But Buchanan said there was "no way monster could hurt anybody" because
"[mjonster is a protector not a danger."
Emily Mowrey dated Dunya from April 2010 to May 2011. Mowrey testified that
Dunya told her he had been divorced for several years and he was in a custody dispute
with Kriston.
Shellie Stevens testified that she dated Dunya off and on for approximately five
years. Stevens said Dunya told her he was divorced. Stevens testified that after
Kriston's murder, Dunya sent her a text message saying the newspapers were wrong
and he and Kriston were not married. Stevens testified that in May 2011, Dunya told
her he was concerned Kriston would get custody of K.D. and take K.D. back to Missouri.
According to Stevens, Dunya said "something about. . . Kriston needing to die
or. . . needing to kill her." Stevens gave Dunya a hug and told him he "could never do
that." In response, Dunya said, "I have to."
Before Low testified, the parties entered into a written stipulation concerning the
authorization to conduct DNA testing on the latex glove pieces. The stipulation states:
Ms. Low will testify that she notified the Bellingham Police Department and
the Whatcom County Prosecuting Attorney's Office that testing for DNA in
the pieces of latex glove found in the apartment of Kriston Dunya would
consume any DNA that was available on those pieces of evidence. She
received a letter from the Prosecuting Attorney's Office authorizing her to
conduct the test for any available DNA. She assumed that this information
of the consumption of any available DNA would be passed on to the
defense attorney, and now understands that this notification was not
brought to the attention of [defense counsel].
Low testified that she extracted DNA from the pieces of the rubber latex glove but
the quantity of the DNA was "very low," only .102 nanograms. Because the DNA testing
would consume the entire sample, she sought authorization before proceeding. Low
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No. 68915-1-1/12
testified that the prosecuting attorney authorized her to conduct the DNA testing. Low
assumed the defense was notified because "whenever we are going to consume more
than half of an evidence item," it is laboratory policy to "allow a defense hired individual
to come in and observe that testing if they so chose to do that."
Low testified that she generated over 100 pages in notes, photos, and other
documentation concerning the DNA testing to allow a forensic expert to review her
notes and see exactly what she did. Low testified that the DNA test of the sample
extracted from the glove pieces generated a mixed profile, meaning "it came from at
least two individuals." Low compared the DNA profile to the reference samples taken
from Dunya and Buchanan. Low determined that the DNA profile matched the DNA
profile for Dunya. Low stated that the probability of finding someone else with the same
DNA profile as she found on the glove pieces that matched Dunya was "one in 100
quintillion." Low testified that she was not able to make a comparison to the second
"minor component" of the DNA profile.
The defense conducted an extensive cross-examination of Low and the
procedures and methods used for the DNA testing and analysis. Low explained that
because the DNA sample was so small, she had to "amplif[y]" the sample by making
copies of the DNA to reach 1.02 nanograms. Low also testified that the "reagent blank,"
a separate tube that is processed along with the sample to detect contaminates,
indicated the presence of contaminant DNA but it was such a low level of contaminant,
it was not possible to determine the source. Low testified that the contaminant had "no
[e]ffect on the results."
12
No. 68915-1-1/13
Low also testified about DNA testing performed on the red jacket recovered from
Buchanan's car. Low stated there were at least two contributors to the DNA and one
contributor was male. Low was able to exclude Dunya as a possible contributor to the
DNA profile on the jacket. Low testified she could not exclude or include Buchanan as a
possible contributor.
Dunya did not testify. The defense called two witnesses, the police officer who
rode with Buchanan to the hospital after the suicide attempt, Detective Bouzek, and Dr.
Donald Riley.
Detective Bouzek testified Buchanan said that "she didn't harm Kriston," and that
"she hadn't been to [Kriston's] home and she hadn't seen her that previous weekend."
But when Detective Bouzek asked Buchanan "whether or not monster hurt [Kriston],"
Buchanan said that "the monster might have or could have hurt [Kriston], but she would
like to think that she didn't hurt anyone."
Dr. Riley testified that based on his review of the DNA testing on the glove
pieces, he did not "trust" the results. Dr. Riley stated Low's notes indicate that the DNA
sample on the glove pieces and the reference sample from Dunya were probably stored
together, and that could have contaminated the "very, very small" amount of DNA on the
glove pieces. According to Dr. Riley, "the general assumption would be that the results
are due to contamination."
In closing, the prosecutor argued the evidence established beyond a reasonable
doubt that Dunya killed Kriston at approximately 5:00 a.m. on July 3 with a 12-gauge
shotgun. The prosecutor asserted the evidence showed Buchanan could not have been
in Bellingham at 5:00 a.m. because her cell phone established she was on Whidbey
13
No. 68915-1-1/14
Island at 6:22 a.m. The State also argued Buchanan was not the right height or build to
be the person on the surveillance video and only Dunya had a motive to kill Kriston.
Defense counsel argued that the evidence showed Buchanan killed Kriston
because she was "obsessed with having a life with [Dunya and K.D.]" Defense counsel
argued that the physical evidence, particularly the DNA from the glove pieces, was not
reliable. The attorney asserted the evidence showed the DNA evidence was likely
contaminated. The attorney also argued the WSPCL violated its standard operating
procedures by testing the evidence without notifying the defense.
The jury convicted Dunya of murder in the first degree. By special verdict, the
jury found that Dunya was armed with a firearm at the time of the commission of the
crime. The court imposed a standard range sentence of 320 months together with the
firearm enhancement of 60 months.
ANALYSIS
DNA Testing
Dunya argues denial of his motion to suppress the DNA evidence violated his
right to due process. Specifically, Dunya asserts the prosecutor's authorization to
conduct the DNA testing precluded independent verification by the defense.
We review an alleged due process violation de novo. State v. Mullen, 171 Wn.2d
881, 893-94, 259 P.3d 158 (2011). Due process requires the State to preserve material
exculpatory evidence. U.S. Const, amend. XIV; Wash. Const, art. I, § 3; California v.
Trombetta. 467 U.S. 479, 485-89, 104 S. Ct. 2528, 81 L Ed. 2d 413 (1984); State v.
Wittenbarqer, 124 Wn.2d 467, 475, 880 P.2d 517 (1994) (citing Brady v. Maryland. 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)).
14
No. 68915-1-1/15
Whether destruction of evidence violates due process depends on the nature of
the evidence and the motivation of law enforcement. Wittenbarqer. 124 Wn.2d at 475-
77 (citing Trombetta. 467 U.S. at 489; Arizona v. Younqblood. 488 U.S. 51, 58, 109 S.
Ct. 333, 102 L. Ed. 281 (1988)). "Material exculpatory evidence" must possess "an
exculpatory value that was apparent before it was destroyed" and be "of such a nature
that the defendant would be unable to obtain comparable evidence by other reasonably
available means." Wittenbarqer. 124 Wn.2d at 475 (citing Trombetta. 467 U.S. at 489).
By contrast, "potentially useful" evidence is "evidentiary material of which no
more can be said than that it could have been subjected to tests, the results of which
might have exonerated the defendant." Younqblood, 488 U.S. at 57; Wittenbarqer. 124
Wn.2d at 477. For example, in Younqblood. the destroyed semen samples taken from
the victim were only "potentially useful" because their exculpatory value was not
apparent before testing. Younqblood. 488 U.S. at 56 n*.
The DNA extracted from the glove pieces was potentially useful not material
exculpatory evidence. As in Younqblood. the DNA evidence had no apparent
exculpatory value without testing.
In Younqblood. the police negligently failed to preserve semen samples collected
from the victim and the victim's clothing. Younqblood. 488 U.S. at 58. Notwithstanding
the State's negligence, the Court held that the defendant could not demonstrate the
State acted in bad faith by destroying the potentially useful evidence and, therefore,
there was no due process violation. Younqblood. 488 U.S. at 58.
The defendant has the burden of showing that the failure to preserve "potentially
useful" evidence "was improperly motivated." Wittenbarqer. 124 Wn.2d at 478. Where,
15
No. 68915-1-1/16
as here, the evidence is only "potentially useful" to the defense, the failure to preserve
the evidence does not violate due process unless the defendant can show the State
acted in bad faith. Wittenbarqer. 124 Wn.2d at 477 (citing Younqblood. 488 U.S. at 58).
Bad faith is shown when "the police themselves by their conduct indicate that the
evidence could form a basis for exonerating the defendant." Younqblood. 488 U.S. at
58. Mere negligence is insufficient to establish bad faith. Younqblood. 488 U.S. at 58;
United States v. Tercero. 640 F.2d 190, 193 (9th Cir. 1980). "Bad faith" in this context
requires some showing of "connivance." United States v. Loud Hawk. 628 F.2d 1139,
1146 (9th Cir. 1979). Compliance with departmental destruction policies is evidence of
good faith. See, e^, United States v. Barton, 995 F.2d 931, 935-36 (9th Cir. 1993);
United States v. Heffinqton. 952 F.2d 275, 280-81 (9th Cir. 1991); United States v.
Westerdahl. 945 F.2d 1083, 1087 (9th Cir. 1991); Mitchell v. Goldsmith. 878 F.2d 319,
322 (9th Cir. 1989). But "the destruction of evidence ... in violation of explicit policy
and procedures . . . [does] not ipso facto establish bad faith." State v. Groth, 163 Wn.
App. 548, 559-60, 261 P.3d 183 (2011) (citing United States v. Montgomery. 676 F.
Supp. 2d 1218, 1245 (D. Kan. 2009); United States v. Elliot. 83 F. Supp. 2d 637, 647
(E.D. Va. 1999); State v. Durnwald. 163 Ohio App. 3d 361, 371, 2005-Ohio-4867, 837
N.E.2d 1234).
Below, the prosecutor admitted his authorization to conduct DNA testing without
notifying the defense "was an oversight," and stated his "main purpose . .. was to get
the testing concluded as soon as possible and obtain results for the State and the
defense." The prosecutor's affidavit states, in pertinent part:
Your affiant was involved in the investigation of the murder of Kriston
Dunya and the subsequent charging of the [State v. Dunya & Buchanan]
16
No. 68915-1-1/17
matter. The investigation of the murder of Kriston Dunya immediately
implicated Keayn Dunya and Kara Buchanan. Due to this fact, both were
charged with Murder in the First Degree on July 13, 2011. At this time
there had been no examination of evidence by the Washington State
Patrol Crime laboratory. Evidence, including pieces of a latex glove found
at the crime scene, a coat believed to have been involved and a shotgun,
and various swabs taken from suspects for DNA analysis and swabs
taken from the victim's body at the autopsy, were sent to the Laboratory
on the 13th day of July, 2011.
I believed that it was critical to obtain the analysis of the items
submitted as soon as possible in order to make a determination as to the
culpability of the two people charged. Ms. Buchanan had admitted to the
shooting, but there was concern as to what her involvement was in the
murder and also the involvement of Mr. Dunya. We had a video tape that
we believed showed Keayn Dunya approaching the building in which the
victim was located with a long firearm, and also leaving the vicinity of the
building within three minutes of arrival. I hoped that the laboratory
analysis would provide further evidence to ascertain each of the
Defendant's roles in this crime.
I received notice from Sergeant Les Gitts of the Bellingham Police
Department that testing would not proceed with the latex glove pieces, the
gun, or the glove, unless authorization by means of a "letter of
consumption" was provided to the lab. I wrote Forensic Scientist Mariah
Low a letter on September 7, 2011, authorizing the examination even
though the sample might be consumed during the testing. On other
occasions I have moved the court for an order authorizing this testing, but
it was an oversight that I just sent a letter. If a case is under investigation I
would ordinarily send a letter and if it was charged I would often seek a
court order. The main purpose of sending the letter was to get the testing
concluded as soon as possible and obtain results for the State and the
defense.
Dunya's attorney argued that the prosecutor's failure to notify the defense of the
planned testing constituted "some form of mismanagement," but conceded the
prosecutor's oversight was not deliberate.
And I don't think - again I [cannot] find any justification why this
would have been done quote, deliberately. But nonetheless, and so I
think it's recognized by the plaintiff that this was an oversight and clearly it
damages Mr. Dunya's ability to defend this particular piece of information
because the information, this sort of crime lab testimony potentially can be
very impressive upon a jury.
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No. 68915-1-1/18
The court ruled the authorization to conduct DNA testing did not violate due
process.
It seems to me that what we have here is not a due process violation;
there is no violation of discovery. It is an issue of consumption, not
obstruction that was not entirely exculpatory it was inculpatory.
It seems there is no showing of bad faith. The evidence before me
indicates the lab protocol was followed that we do not have a Criminal
Rule 8.3 situation.
Oversight does not in each and every case constitute
mismanagement, and I will not in this instance craft a de facto
exclusionary rule.
Dunya contends the trial court erred in finding there was "no showing of bad
faith." Dunya asserts the failure to notify the defense before conducting the DNA testing
and the failure to request a court order before authorizing the testing establishes bad
faith. Substantial evidence supports the finding that there was no showing of bad faith
and the prosecutor was merely negligent in failing to contact the defense.
State v. Copeland. 130 Wn.2d 244, 922 P.2d 1304 (1996), and Younqblood are
analogous. In Copeland. an FBI4 agent followed FBI policy and "discarded the
remainder of DNA extracted from the crime sample after it was subjected to DNA
testing." Copeland. 130 Wn.2d at 279. The court concluded that the discarded
evidence was not material exculpatory evidence because "there was no evidence that
any retest results would have been exculpatory." Copeland. 130 Wn.2d at 280. The
court did not address whether the agent acted in bad faith but noted that the defendant
failed to show that the policy itself constituted bad faith. Copeland. 130 Wn.2d at 280-
81.
The out-of-state case Dunya relies on, Freeman v. State, 121 So.3d 888 (Miss.
2013), is distinguishable. In Freeman, the prosecutor lost key evidence that by court
4 Federal Bureau of Investigation.
18
No. 68915-1-1/19
order the State had to preserve. Freeman, 121 So.3d at 895. The Mississippi Supreme
Court concluded that the prosecutor's conduct violated due process because the State
could give "no legitimate reason as to why it failed to follow the court order and preserve
the video." Freeman. 121 So.3d at 896.5
We conclude Dunya has not shown the authorization to proceed with DNA
testing and the failure to preserve potentially useful evidence violated his right to due
process.
Opinion Testimony
Dunya contends improper opinion testimony about the person in the surveillance
video impermissibly invaded the province of the jury and denied him a fair trial. The trial
court has broad discretion to determine the admissibility of testimony. City of Seattle v.
Heatlev. 70 Wn. App. 573, 579, 854 P.2d 658 (1993).
We review decisions on the admissibility of evidence under an abuse of
discretion standard. State v. Maqers. 164 Wn.2d 174, 181, 189 P.3d 126 (2008). A
court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or reasons. Maqers. 164 Wn.2d at 181. A reviewing court will find
an abuse of discretion only if it concludes that no reasonable person would have ruled
as the trial judge did. State v. Atsbeha. 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
Even if evidence is erroneously admitted, reversal is not warranted "unless, within
reasonable probabilities, the outcome of the trial would have been materially affected
had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).
As a general rule, no witness, lay or expert, may "testify to his opinion as to the
guilt of a defendant, whether by direct statement or inference." State v. Black. 109
5 Footnote omitted.
19
No. 68915-1-1/20
Wn.2d 336, 348, 745 P.2d 12 (1987). Such testimony has been characterized as
unfairly prejudicial because it "invad[es] the exclusive province of the finder of fact."
Black, 109 Wn.2d at 348. But testimony that is not a direct comment on a defendant's
guilt, is otherwise helpful to the jury, and is based on inferences from the evidence is not
improper opinion testimony. State v. Sanders. 66 Wn. App. 380, 388, 832 P.2d 1326
(1992). Whether testimony constitutes an impermissible opinion on guilt will generally
depend on the record and the circumstances of each case, including the type of witness
involved, the specific nature of the testimony, the nature of the charges, the type of
defense, and the other evidence before the trier of fact. Heatlev. 70 Wn. App. at 579.
Expert testimony in the form of an opinion is admissible under ER 702 if" '(1) the
witness qualifies as an expert, (2) the opinion is based upon an explanatory theory
generally accepted in the scientific community, and (3) the expert testimony would be
helpful to the trier of fact.'" State v. Willis. 151 Wn.2d 255, 262, 87 P.3d 1164 (2004)
(quoting State v. Swan. 114 Wn.2d 613, 655, 790 P.2d 610 (1990)). Expert testimony is
helpful to the jury if it concerns matters beyond the common knowledge of the average
layperson and is not misleading. State v. Thomas. 123 Wn. App. 771, 778, 98 P.3d
1258 (2004). "Courts generally 'interpret possible helpfulness to the trier of fact broadly
and will favor admissibility in doubtful cases.'" Moore v. Haqqe. 158 Wn. App. 137,
155, 241 P.3d 787 (2010) (quoting Miller v. Likins. 109 Wn. App. 140, 148, 34 P.3d 835
(2001)). We review the trial court's evaluation of a proposed expert witness's
qualifications for abuse of discretion. State v. Perez. 137Wn. App. 97, 108, 151 P.3d
249 (2007).
20
No. 68915-1-1/21
Before trial, the defense filed a motion in limine to exclude testimony that the
person in the surveillance video was Dunya. During the pretrial hearing on the motions
in limine, the defense agreed the person in the video appeared to be "about" 5 feet 10
inches tall and "appears to be darker skin," but argued it was not clear it was Dunya.
The person depicted in the video is sort of lacking any kind of facial
features. I mean, I think generically it can be described as a male about
five-ten; appears to be darker skin but we can't say if it is Hispanic,
African-American, Native American, East Indian; appears to be wearing
gloves but you can't say for sure; appears to be holding something that is
sort of similar in appearance to a gun but you can't say for sure. I mean if
all there was, was just the image on the video and nothing else in the
state's case, it would be near impossible to say well, that's Mr. Dunya.
The defense asked to exclude "any law enforcement or lay witness testimony as
far as what this video tape depicts other than just the basics necessary for the
foundation for its admissibility," but agreed the State could elicit testimony that the
suspect in the videotape was "dark complexioned because that's pretty obvious."
Consistent with the defense position, the court ruled that the State could present
testimony that the suspect appeared to have a darker skin tone than other people
observed on the video surveillance.
During trial, defense counsel objected to Detective Schwallie testifying about the
skin tone of the person in the surveillance video, arguing it"falls within the subject
matter of the motions in limine" and that it was "beyond the scope of this witness's
expertise." After permitting defense counsel to conduct voir dire concerning the
background and training of Detective Schwallie, the court overruled the objection.
21
No. 68915-1-1/22
Dunya contends the court erred in allowing Detective Schwallie to testify as an
expert.6 Dunya contends Detective Schwallie was not qualified to testify as an expert
on infrared video images and reverse projection photogrammetry.
Detective Schwallie testified that he had been with the Bellingham Police
Department for 20 years, he received extensive training in video analysis, forensic
Photoshop, and digital and video image comparison, and he had more than 8 years of
experience as a forensic video analyst for the police department. Detective Schwallie
testified that his training involved looking at infrared images captured on a variety of
security cameras. Detective Schwallie explained that infrared "throws out the color
characteristics of an image, ... it basically works off of the reflective material or the
reflectiveness of the materials that the objects are made of." Detective Schwallie also
testified that he had experience using reverse projection photogrammetry to determine
the height of objects or people in a video.
Based on his training and experience, Detective Schwallie testified that the
suspect in the video appeared "to have a darker skin tone" compared to others on the
video, appeared to be closer to 5 feet 10 inches tall than 5 feet 4 inches, and had a
build that was "more consistent with our 5-foot 10 male than with our 5-foot three or 5-
foot four female." Based on his training and knowledge of how different types of objects
and materials appear under infrared lighting, as well as his 20 years of professional
experience with the police department, Detective Schwallie testified that the suspect
appeared to be carrying a long barreled firearm.
6 For the first time on appeal, Dunya contends the court erred in allowing Detective Schwallie to
testify because he was not identified as an expert witness before trial as required by CrR 4.7(a)(2)(ii).
Absent manifest constitutional error, we do not consider arguments raised for the first time on appeal.
RAP 2.5(a)(3); State v. Powell. 166 Wn.2d 73, 84, 206 P.3d 321 (2009).
22
No. 68915-1-1/23
The court did not err in concluding Detective Schwallie qualified to testify as an
expert witness. Detective Schwallie had specialized knowledge of infrared video, had
analyzed the surveillance video using reverse projection photogrammetry, and was
better able to compare the skin tone and height and build of the individuals in the video.
Detective Schwallie's testimony was helpful to the jury and relevant to identifying the
person in the video. Because the surveillance video was recorded in infrared mode, the
color and tone of the images was distorted. As the court observed, the video images
differed from "what would be seen with ... the naked eye or some other type of
footage."7
Detective Schwallie's testimony was neither a direct or implicit opinion of Dunya's
guilt, nor was his comment that the person in the video appeared to have "a darker
complexion" an impermissible appeal to racial prejudice. The record establishes
defense counsel specifically agreed that Detective Schwallie could testify that the
person in the video appeared "dark complexioned."
Dunya also argues the court erred in admitting still shots from the video
comparing the height of two police offers to the person in the video. Dunya did not
object to admission of the video still shots at trial. "[A]gain, there is no objection far as
the showing of this -- these images on the screen as has previously been done, but we
would like to reserve objection to what we do with the actual disk itself." Defense
counsel later clarified that the concern was with jurors "maipulat[ing]" the images on the
discs during deliberations. The court confirmed that it could have the parties reconvene
7 The court also did not abuse its discretion in ruling Detective Schwallie was qualified to testify
that the object the suspect was carrying was a long barreled firearm. See State v. Ortiz, 119 Wn.2d 294,
310, 831 P.2d 1050 (1992) ("Practical experience is sufficient to qualify a witness as an expert.").
23
No. 68915-1-1/24
and play the discs for the jury. Absent manifest constitutional error, we do not consider
arguments raised for the first time on appeal. RAP 2.5(a)(3). An alleged evidentiary
error is not of constitutional magnitude. State v. Powell. 166 Wn.2d 73, 84, 206 P.3d
321 (2009).
Firearm Enhancement
Relying on State v. Williams-Walker. 167 Wn.2d 889, 225 P.3d 913 (2010),
Dunya argues the court did not have the authority to impose the firearm enhancement
because the instruction for the special verdict states the jury must decide whether
Dunya was "armed with a deadly weapon." Because the jury instructions complied with
Washington Practice: Washington Pattern Jury Instructions: Criminal (WPIC)
defining a deadly weapon to include a firearm and the special verdict form specifically
asks the jury to find whether Dunya was "armed with a firearm," we disagree.
We review a challenge to a jury instruction de novo, evaluating the jury
instruction "in the context of the instructions as a whole." State v. Bennett. 161 Wn.2d
303, 307, 165 P.3d 1241 (2007). " 'Jury instructions are sufficient when they allow
counsel to argue their theory of the case, are not misleading, and when read as a whole
properly inform the trier of fact of the applicable law.'" Keller v. City of Spokane. 146
Wn.2d 237, 249, 44 P.3d 845 (2002) (quoting Bodin v. City of Stanwood, 130 Wn.2d
726, 732, 927 P.2d 240 (1996)). Instructional error is harmless when, beyond a
reasonable doubt, the jury verdict would have been the same absent the error. State v.
Brown. 147 Wn.2d 330, 341, 58 P.3d 889 (2002).
The State charged Dunya with murder in the first degree with a firearm
enhancement under RCW 9.94A.533(3)(a). The jury instructions complied with the
24
No. 68915-1-1/25
WPIC. Specifically, WPIC 2.07.02, defining the deadly weapon sentence enhancement
for purpose of the special verdict, and WPIC 2.10, defining "firearm." 11 WPIC 2.07.02,
at 48 (3d ed. 2008); 11 WPIC 2.10, at 52 (3d ed. 2008).
Jury instruction 15 states:
For purposes of a special verdict the State must prove beyond a
reasonable doubt that the defendant was armed with a deadly weapon at
the time of the commission of the crime charged in Count I.
A pistol, revolver, or any other firearm is a deadly weapon whether loaded
or unloaded.[8]
Jury instruction 16 states, "A 'firearm' is a weapon or device from which a
projectile may be fired by an explosive such as gunpowder."
The note on use for WPIC 2.07.02 recommends using the instruction "in those
cases in which an enhanced sentence for use of a deadly weapon is sought under...
RCW 9.94A.533 ... and the only weapon allegedly used by the defendant is a firearm."
11 WPIC 2.07.02 note on use at 48. The comment to WPIC 2.10 notes that the
"firearm" definition applies "to firearm enhancements under RCW 9.94A.533(3)." 11
WPIC 2.10 comment at 52.
811 WPIC 2.07.02 states, in pertinent part:
DEADLY WEAPON—DEFINITION FOR SENTENCE ENHANCEMENT—SPECIAL
VERDICT—FIREARM
For purposes ofa special verdict the State must prove beyond a reasonable
doubt that the defendant was armed with a deadly weapon at the time of the commission
of the crime [in Count ].
Apistol, revolver, or any other firearm is a deadly weapon whether loaded or
unloaded.
(Alteration in original.)
25
No. 68915-1-1/26
The juryfound by special verdict that Dunya was "armed with a firearm" during
the commission of the crime. The special verdict form states, in pertinent part:
We, the jury, return a special verdict by answering as follows:
QUESTION: Was the defendant, KEAYN DUNYA, armed with a firearm at
the time of the commission of the crime of Murder in the First Degree as
charged in Count I?
ANSWER: YES (Write "yes" or "no").
In Williams-Walker, the Washington State Supreme Court considered "whether a
trial court may impose a firearm enhancement in the absence of a jury finding bv special
verdict that the defendant used a firearm." Williams-Walker. 167 Wn.2d at 898.9 In the
three consolidated cases, the trial court imposed a firearm enhancement after the jury
was asked to find by special verdict whether the defendant was armed with a "deadly
weapon." Williams-Walker, 167 Wn.2d at 898. Because the jury returned answers to
the deadly weapon special verdict forms, the court reasoned that the jury "authorized
only a deadly weapon enhancement, not the more severe firearm enhancement."
Williams-Walker. 167 Wn.2d at 898. The court held that "[f]or purposes of sentence
enhancement, the sentencing court is bound by special verdict findings," and that a
firearm sentence enhancement "must be authorized by the jury in the form of a special
verdict." Williams-Walker, 167 Wn.2d at 900.
Here, the jury found bv special verdict that Dunya used a "firearm" in committing
the crime. Although jury instruction 15 states that "[f]or purposes of a special verdict the
State must prove beyond a reasonable doubt that the defendant was armed with a
deadly weapon" rather than a "firearm," the instructions told the jury that a "deadly
9 Emphasis in original.
26
No. 68915-1-1/27
weapon" includes a "firearm" and further defined "firearm" in a separate instruction.10
The instructions properly informed the jury of the applicable law and that in order to
return this special verdict, it had to find beyond a reasonable doubt that Dunya
committed his offense while armed with a "firearm."
We affirm.
yjLt^MiiLi (
WE CONCUR:
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