This opinion was
IN CLERKS OFFICE
flied for record
eunsvE COURT,SEOE OF wiiav.on"^^5^
DATE OEC fl R »il(i
KaAA^'I' ^ Susan L. Carlson
CHIEF JUSTICE Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 95396-1
Respondent,
V. EN BANC
SHELLY MARGARET ARNDT,
Filed OEC fl 5
Petitioner.
STEPHENS, J.—^After an extensive trial, a jury convicted Shelly Amdt on
charges including aggravated first degree murder and first degree arson, and she
received a sentence oflife without the possibility ofparole. Amdt appealed, arguing
that her Sixth Amendment right to present a defense and her right to be free from
double jeopardy were violated. U.S. Const, amends. VI, V. The Court of Appeals
affirmed Amdt's conviction and sentence in an unpublished, divided opinion.' State
'There are two Court of Appeals opinions involving this case. In September 2018,
the Court of Appeals, Division Two, affirmed Amdt's conviction on the grounds that the
trial court did not abuse its discretion by concluding that research conducted by ajuror did
not contribute to the verdict. State v. Amdt,5 Wn. App.2d 341, 351,426 P.3d 804(2018),
review denied, 192 Wn.2d 1013 (2019).
State V. Arndt(Shelly Margaret), 95396-1
V. Arndt, No. 48525-7-II, slip op. at 37 (Wash. Ct. App. Dec. 12, 2017)
(unpublished), http://www. courts.wa.gov/opinions/pdf/D2%2048525-7-II%20
Unpublished%20Opinion.pdf.
We affirm. After a careful review of the record, we conclude that the trial
court's rulings limiting the testimony of Arndt's expert witness did not violate
Amdt's Sixth Amendment right to present a defense and were well within the court's
discretion. We further conclude that Amdt's convictions for both first degree
aggravated murder and first degree arson do not violate double jeopardy protections,
as our precedent is clear that when two crimes have separate purposes and effects,
multiple punishments are allowed.
FACTS AND PROCEDURAL HISTORY
On Febmary 23, 2014, a fire broke out in a two-story house that belonged to
Kelly O'Neil and her husband. At the time ofthe fire, there were eight people inside
the home: Kelly O'Neil, Shelly Amdt, Darcy Veeder Jr., Donald Thomas, O'Neil's
adult daughter Autumn Kriefels, and three children. Everyone except Veeder was
able to escape the fire. Veeder succumbed to smoke inhalation and died inside the
residence.
The O'Neil home was heated by a wood stove on the main floor. Downstairs
in the split-entry home there was a gas insert fireplace and baseboard heating, but
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State V. Arndt(Shelly Margaret), 95396-1
the power and gas to both were turned off. A vent between the upstairs and
downstairs was located near the wood stove. On the night ofthe fire, Arndt, Veeder,
and Thomas were the last occupants awake, and they fell asleep on couches in the
upstairs living room. O'Neil, Kriefels, and the children were sleeping in various
bedrooms.
Arndt testified that she woke to the smell of smoke and immediately woke
Thomas up to tell him that she smelled something. She also woke O'Neil, who
described a smell like burning tires and said she saw an orange glow coming from
the living room side of the downstairs area. O'Neil collected the three minor
children and ran outside. Upon realizing that Kriefels was still inside the home,
O'Neil ran back with Arndt to get Kriefels from her room. The house was engulfed
in flames within 30-45 seconds after they reached the driveway. Eventually, the fire
department arrived to control the fire. Veeder's body was found in the living room
on the second floor ofthe home.
After the fire department completed its work, the scene was turned over to
Kitsap County Fire Marshal David Lynam for investigation. The details ofLynam's
testimony, as well as the testimony of an insurance cohipany investigator and two
experts retained for trial, are a major focus in this appeal and are discussed below.
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State V. Arndt (Shelly Margaret), 95396-1
During the course of the investigation, suspicion fell on Arndt, who had prior arson
charges.^
The State charged Arndt with several crimes. First, it charged her with
aggravated first degree murder under RCW 9A.32.030(l)(a) and RCW 10.95.020
with the aggravating circumstance of first degree arson under RCW 10.95.020(11).
It also made special allegations of domestic violence under RCW 10.99.020 and
alleged an aggravating circumstance allowing for departure from the sentencing
guidelines under RCW 9.94A.535(3)(b), alleging the victim was a particularly
vulnerable person. Second, it altematively charged her with first degree murder
(felony murder) under RCW 9A.32.030(l)(c), again with special allegations of
domestic violence and a particularly vulnerable person aggravating circumstance.
Third, the State charged her with first degree arson under RCW 9A.48.020 with
special allegations of domestic violence and a particularly vulnerable person
aggravating circumstance. Finally, it charged her with six counts of second degree
^ Specifically, Amdt had a criminal history involving violation ofa no-contact order,
malicious mischief, assault in the fourth degree, and two prior arson charges. The first
arson allegation occurred in November 2011 and involved a fire in a home that Amdt
shared with Veeder and his father, Darcy Veeder Sr. Investigation into this 2011 fire
revealed that several pieces of clothing and blankets were placed on a TV and set on fire.
For the second arson, which also occurred in November 2011,Amdt pleaded guilty to arson
in the second degree. Amdt admitted that she intentionally set a box of towels on fire
because she was tired of living with Darcy Veeder Sr. and wanted to move into her
mother's house with Darcy Veeder Jr. For her arson m the second degree conviction, Amdt
received a sentence of nine months.
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State V. Arndt(Shelly Margaret), 95396-1
assault under RCW 9A.36.021, two of which included special allegations of
domestic violence.
Fire Investigation Testimony
The fire scene was analyzed by four investigators, including Fire Marshall
Lynam. See Am. Pet. for Review at 2-5. Because this ease is, in large part,
concerned with the defense expert's adherence to proper investigatory procedures
compared with the other investigations Conducted, a brief overview ofthe individual
investigators' work is necessary.
Fire Marshal David Lynam
Kitsap County Fire Marshal David Lynam is charged with investigating the
origin, cause, and circumstances offires within Kitsap County. 14 Verbatim Report
of Proceedings (VRP)(Oct. 26, 2015) at 2594. As the prosecution's chief expert
witness, Lynam testified to his qualifications and how he conducts all of his
investigations in accordance with National Fire Protection Association 921 (NFPA
921).^ See id, at 2586-99. In addition to following the guidance in NFPA 921,
Lynam testified:
The approach I have adopted and instructed all my deputies we adopt,
is . . .[your work] typically goes from the outside in, you want to evaluate
^ Nat'l Fire Prot. Ass'n, NFPA 921: Guide for Fire and Explosion
Investigations. This document is referenced throughout the testimony of all
investigators as the "standard" for fire investigation. A copy of this document does not
appear to be provided in the record.
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State V. Arndt(Shelly Margaret), 95396-1
the whole scene and condition that you have, and you are working from areas
of least damage to most damage.
Id. at 2599. As the public official who takes charge of the fire scene immediately
after the fire department, Lynam has the authority to exclude all private investigators
until his investigation is complete. Id. at 2595.
Lynam's investigation and resulting conclusions were challenged extensively
by the defendant's expert witness. Dale Mann. Because these conclusions are
discussed in depth relating to various evidentiary rulings, they will not be detailed at
this time. In summary,Lynam concluded that the fire started when someone ignited
a beanbag chair near a couch in the house's basement. Am. Pet. for Review at 2;
15 VRP (Oct. 27, 2015) at 2922-23.
Ed Iskra
Ed Iskra was under contract with Allstate Insurance and was tasked with
determining the origin and cause of the O'Neil residential fire to preserve the right
of Allstate to proceed against any defective appliance manufacturer. 9 VRP (Oct.
15, 2015) at 1552. Based on the results of his investigation, Iskra testified for the
prosecution.
On direct examination, Iskra described the procedures that he followed:
1 follow a systematic approach to my investigation. So I go out and do the
exterior, the interior, and from the inspection, if there's specific things that
may be—^that might be a cost factor for the—^besides my initial investigation.
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State V. Arndt(Shelly Margaret), 95396-1
for the insurance company, I call my claims adjuster and tell them what I
have and [wjould you like me to do certain things; yes or no?
Id. at 1554. As a first step in his investigation, Iskra called Lynam to determine if
Lynam had released the scene. He also testified that he spoke with both of the
O'Neils to get a sense of the activities that occurred before and during the fire (e.g.,
what electrical devices were plugged in, etc.). Iskra testified how his standard
procedure is to conduct his own investigation independent of any prior conclusions.
Initially, because Lynam had not released the scene, Iskra conducted an
investigation of the exterior of the house, examined the locations where the fire
vented from the house,examined the resulting debris pile, and took photographs. He
detailed how his initial hypothesis, based on witness statements and exterior bum
pattems,led him to believe that the fire started on the outside deck. This hypothesis
was later disproved once he was able to gain access to the interior ofthe home a few
days later. Id. at 1560-61.
Iskra next detailed the systematic approach that he utilizes for examining the
interior of a fire scene:
I usually start from the front door,ifthat is accessible, sometimes it's not and
I've got to go in the back door, but I will go in—into the interior ofthe home
and go to what I determine the least area of damage and start my intemal
examination of the home from there and work to the most damage.
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State V. Arndt(Shelly Margaret), 95396-1
Id. at 1569. Using this approach, Iskra described his examination of the interior of
the house in detail. He discussed the possibility that the scene went to "flashover'"^
and reviewed the relevant training he had received to make a "flashover"
determination. Id. at 1569-1631.
Finally, Iskra discussed his need to rely on the reports and documentation of
other fire investigators because fire scenes are sometimes altered, e.g., from digging
or the removal ofelectrical components,in the process ofother investigations. Here,
Iskra initially characterized the cause of the fire as "undetermined," due to
"alterations ofthe scene and evidence being removed." Id. at 1633. After reviewing
Fire Marshall Lynam's "documentation, data,[and] evidence," to supplement what
he examined at the scene, Iskra changed his determination to "intentionally set." Id.
at 1635. He examined Lynam's reports and documentation detailing how the fire
was "dug out," and concluded that "[i]t was more likely than not that a fire was
started with a handheld devi[c]e to combustible materials." Id. at 1636.
Ken Rice
Ken Rice is a senior fire investigator for CASE Forensics who conducted a
technical review of Lynam's investigation. CASE Forensics is a privately held
"Flashover is when a room is totally preheated from a fire burning within a room.
Your heat layer lowers down, preheats all the furnishings within the room, and they
basically auto ignite pretty much at the same time. ... [Flashover] is when pretty much
everything in the room instantaneously ignites." 8 VRP (Oct. 14, 2015) at 1502-03.
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State V. Arndt(Shelly Margaret), 95396-1
forensic engineering firm that conducts failure analysis in multiple disciplines of
engineering. Rice testified for the prosecution concerning the requirements ofNFPA
921 and the scientific method. The first portion of Rice's testimony focused on the
conduct of fire investigations generally and the definition of different concepts
related to the field.
Rice testified about the rnethodology he used to conduct his technical review,
including examination ofall reports and photographs furnished to him. 10 VRP(Oct.
19, 2015) at 1894. Specifically, Rice reviewed the reports of defense expert Mann
and Fire Marshal Lynam. Rice discussed his review of the scene, via the
photographs he had received, in detail. Upon conclusion of his initial review. Rice
recommended that Lynam conduct additional testing due to his concern that an
ember may have traveled out ofthe upstairs fireplace, down a'floor vent, and ignited
a combustible material on the lower level. Rice and Lynam performed these
additional tests and concluded that it was not probable that an eiriber escaped the
fireplace and caused the house fire.
Additionally, as part of his technical review. Rice performed testing "to see
what smoke passage would look like in the upstairs room coming from the
downstairs through the vent." 13 VRP (Oct. 22, 2015) at 2383-84. Based on the
results ofthis testing. Rice was able to conclude, on a more probable than not basis.
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State V. Arndt(Shelly Margaret), 95396-1
that the fire did not occur directly below the vent. Rice also performed a furniture
ignition test and concluded that "it was very probable that something was ignited on
the left side of the sofa, caused the sofa to ignite, and caused the fire to spread from
left to right." Id. at 2386, 2402.
Based on his technical review and testing. Rice concluded that the fire was
incendiary in nature and that the area of origin was the "left side ofthe sofa near the
floor level." Mat 2406-27.
Dale Mann
Arndt retained Mann to review the fire investigation. Am.Pet. for Review at
4. Mann is a former state patrol crime lab supervisor and certified arson investigator.
During his review, Mann examined all available materialSj including Lynam's
reports, photos and other documents,police reports, coroner's reports, and firefighter
reports. Whether Mann adhered to acceptable investigation methods contained in
NFPA 921 became the primary issue in determining the admissibility of his
testimony.
Mann's testimony primarily challenged Lynam's determinations of the cause
and origin of the fire. Id. at 5. Due to the nature of his investigation, the trial court
limited Mann's testimony in a variety of ways, and he was unable to present his
opinion that the fire should have been classified as "undetermined" rather than
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State V. Arndt(Shelly Margaret), 95396-1
"incendiary." Id. These evidentiary rulings form the basis of one of the central
issues in this appeal. For this reason, like Lynam's conclusions, they are analyzed
in greater detail below.
Trial and Appeal
After a three month trial, ajury found Arndt guilty of all crimes as charged by
the State. Clerk's Papers(CP)at 430-32,433-41, 472-73. The trial court sentenced
Arndt to life without the possibility of parole per RCW 10.95.030(1). CP at 475.
The Court of Appeals affirmed Amdt's conviction and sentence. Arndt, slip
op. at 37. The court found no error with respect to most ofthe trial court's limitations
on Mann's testimony but held that the trial court wrongly excluded Mann's
testimony about his review of the police reports. Id. at 1. However, it found this
error harmless and held that Arndt was not denied her Sixth Amendment right to
present a defense. Id. Acting ChiefJudge Bradley Maxa dissented on this issue. Id.
at 38. As for Amdt's challenge to her convictions for both aggravated first degree
murder with a first degree arson aggravator and first degree arson, the Court of
Appeals found no double jeopardy violation, concluding that the two crimes are not
the same in fact or law. Id. at 1. After deferring consideration of Amdt's petition
for review for almost a year, pending State v. Allen, 192 Wn.2d 526, 431 P.3d 117
(2018), this court granted review. State v. Arndt, 193 Wn.2d 1001 (2019).
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State V. Arndt(Shelly Margaret), 95396-1
ANALYSIS
A. The Trial Court Acted within Its Discretion and Did Not Violate Amdt's Sixth
Amendment Right To Present a Defense by Limiting Her Expert Witness's
Testimony
Arndt argues that the trial court violated her constitutional right to present a
defense. Whether a Sixth Amendment right has been abridged presents a legal
question that is reviewed de novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d
576 (2010). However, the trial court's evidentiary rulings under ER 702 remain
subject to abuse of discretion review. State v. Yates, 161 Wn.2d 714, 762, 168 P.3d
359 (2007).
While Arndt asks this court to "unequivocally hold that violations ofthe right
to present a defense are reviewed de novo, with no deference to the trial court's
decision to exclude evidence," Am. Pet. for Review at 10, we recently adhered to a
two-step standard ofreview in State v. Clark, 187 Wn.2d 641,648-56,389 P.3d 462
(2017)(abuse of discretion review of evidentiary rulings and de novo review of
whether such rulings violated the defendant's right to present a defense). Here, as
in Clark, we apply this two-step review process to review the trial court's individual
evidentiary rulings for an abuse of discretion and to consider de novo the
constitutional question of whether these rulings deprived Arndt of her Sixth
Amendment right to present a defense.
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State V. Arndt(Shelly Margaret), 95396-1
Review ofEvidentiary Rulingsfor Abuse ofDiscretion
In Washington, expert testimony must satisfy both the Frye^ test and ER 702.^
State V. Copeland, 130 Wn.2d 244,256,922 P.2d 1304(1996). While concerns
the use of novel scientific methodology and guards against the admission of new
techniques until a "scientific consensus decides the methodology is reliable," Lakey
V. Puget Sound Energy, Inc., 176 Wn.2d 909, 918-19, 296 P.3d 860(2013), ER 702
concerns the use of existing scientific niethodology and excludes testimony "where
the expert fails to adhere to that reliable methodology." Id. Admissibility decisions
under ER 702 are reviewed for abuse of discretion. Yates, 161 Wn.2d at 762.
Arndt takes issue with the limitations the trial judge placed on Mann's
testimony due to the fact that he had not personally conducted a complete origin and
cause investigation of the scene. Am. Pet. for Review at 5. In placing these
limitations on Mann's testimony,thejudge clearly stated that her rationale was based
on Mann's failure to follow well established scientific methodology:
THE COURT: It is not a problem that he goes to the scene, as [the]
defense argues, but it is a problem when he starts to test....
5 Frye v. United States, 54 U.S. App. D.C. 46, 293 F. 1013 (1923).
® ER 702, Testimony By Experts:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
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State V. Arndt(Shelly Margaret), 95396-1
If he were to do an origin and cause, he would need to follow the
scientific method and eliminate various hypotheses.
Instead by focusing on one area, which seems to be this foosball area,
he's taking one hypothesis and testing it. And not eliminating, under the
scientific method, the entire scene.
19 VRP (Nov. 12, 2015) at 3650-51. None of the limitations plaeed on Mann's
testimony concerned the use of a novel scientific method with dubious credibility.
Instead, all objections to the exclusion of expert testimony centered on whether the
expert properly adhered to existing acceptable methodology. Such decisions fall
under ER 702 and are properly reviewed for abuse of discretion. Yates, 161 Wn.2d
at 762; Clark, 187 Wn.2d at 648.
Expert testimony is admitted under ER 702 when the trial court determines
(1) that the witness qualifies as an expert and (2) that the testimony will assist the
trier offact. InreDet. ofMcGary, 175 Wn. App.328,338-39,306 P.3d 1005(2013).
Trial courts are given a large degree offreedom when making these determinations,
subject to reversal only for a clear abuse of discretion. Yates, 161 Wn.2d at 762. "A
trial court abuses its discretion when its decision is manifestly unreasonable or
exercised on untenable grounds or for untenable reasons." State v. Lord, 161 Wn.2d
276,283-84,165 P.3d 1251 (2007). Specifically, an abuse ofdiscretion can be found
when the trial court "relies on unsupported facts, takes a view that no reasonable
person would take, applies the wrong legal standard, or bases its ruling on an
erroneous view ofthe law." Id. at 284. Because unreliable testimony does not assist
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State V. Arndt(Shelly Margaret), 95396-1
the trier of fact, it is properly excluded under ER 702. Lackey, 176 Wn.2d at 918.
In our review for abuse of discretion, we may affirm the trial court on any basis that
the record supports, including any theories "established by the pleadings and
supported by the proof," even ifthese theories were not originally considered by the
trial court. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027(1989).
Due to the highly fact-specific nature of the analysis required to determine if
the trial court abused its discretion, what follows is an individual discussion on each
category of exclusions/restrictions placed on Mann's testimony. After reviewing
these exclusions individually, it becomes clear that the trialjudge took issue with the
method Mann used to analyze the particular issues, not the fact that he selected
particular issues to investigate. On multiple occasions, the judge and counsel had
extensive discussions about Mann's adherence to accepted procedures and resulting
admissibility concerns. Because all of the trial judge's exclusion decisions were
supported by tenable reasons and based on correct statements of the law, we hold
that the trial court did not abuse its discretion in limiting the scope of Mann's
testimony.
1. Opening the Door
Arndt argues that the trial court erred when it "excluded Mann's opinion that
the fire should be classified as undetermined (rather than incendiary)." Am.Pet. for
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State V. Arndt(Shelly Margaret), 95396-1
Review at 6. Initially, Amdt argued that the State "opened the door" to Mann's
testimony challenging Lynam's conclusions about the fire's origin and cause:
MR. LaCROSS: They had witnesses testify that—expert witnesses
that Mr. Lynam did this investigation perfectly. It was a good investigation.
They opened the door for whether or not this investigation was done
properly. And that's what Mr. Mann is here to testify, that it wasn't done
properly.
18 VRP (Nov. 10, 2015) at 3411-12. The trial court dialogue then centered around
whether Mann conducted a proper origin and cause investigation in accordance with
the scientific method or whether he simply reviewed Lynam's investigation. See id.
at 3411-13, 3524-38. The State objected to Mann's testimony regarding the origin
of the fire:
So we would object—if what he did was simply a review in this case,
we would object to any—and didn't do an origin and cause determination,
we would object to any picture that he took, any testimony about layering,
any testimony about any of the scene investigations that he did. And we'd
ask that he be allowed only to testify about his review of Fire Marshal
Lynam's work.
Id. at 3525. In response to this objection, the trial court attempted to determine the
exact nature of Mann's testimony:
THE COURT:If he's going to say where the fire started, does he not
have to present a methodology for how and where it started?
MR. LaCROSS: As he has—he used the scientific method to
determine where the origin was, yes, the area.
THE COURT:So he went through a whole analysis ofhypotheses and
eliminated them one at a time, and is that written up in the report?
MR. LaCROSS: No.
THE COURT: That is the scientific method, is it not?
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State V. Arndt(Shelly Margaret), 95396-1
MR.LaCROSS: Not for what he did. He did an evaluation, a critique
of what the Fire Marshal did. ... It doesn't mean that he did an origin and
cause investigation....
THE COURT: My worry, Mr. LaCross,is that, as we've been arguing
this much of this day, you have repeatedly told me this is not an origin and
cause.
MR. LaCROSS: I still say that. It is not an origin and cause
determination.
THE COURT: But he's effectively eliminating and deciding whether
or not what the origin and cause was.
If he's saying it is in a certain area of the house, and if he's going
through and effectively double testing what's already been done by the Fire
Marshal, isn't he effectively—isn't he effectively trying to establish the
origin and cause?
MR. LaCROSS: No, he is not.
THE COURT: What is he doing then?
MR. LaCROSS: He is evaluating, again, the evaluation of the origin
and cause investigation of the fire marshal.
Id. at 3532,3536-37. In the end,based on the above discussion, the trial court issued
the following ruling:
THE COURT: So I'm going to allow the testimony from Dale Mann,
provided that there is no conclusion presented by Dale Mann as to what the
origin and cause would have been. He can go into the process. He can go
into what he observed. I'm not sure there's any authority to say he can't go
to the scene, provided he's not giving any conclusions as to the cause.
Id. at 3538.
As the Court of Appeals recognized, Arndt acknowledged that Mann did not
conduct a full origin and cause investigation similar to Lynam, Iskra and Rice.
Arndt, slip op. at 11. Further, there was no dispute at trial that fire causation must be
determined using the NFPA 921 origin and cause methodology. When the relevance
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State V. Arndt(Shelly Margaret), 95396-1
and helpfulness of expert testimony is debatable, there is no abuse of discretion in
excluding the testimony on tenable grounds. State v. Cheatam, 150 Wn,2d 626,652,
81 P.3d 830(2003). As the above discussions clearly evidence, the trial judge went
to some effort to determine the nature of Mann's investigation. Instead ofexcluding
Mann's testimony entirely, the trial judge placed specific limitations on his
testimony that were directly related to the limited nature of his investigation.
Because the judge's rulings were based on tenable grounds and relied on supported
facts, there was no abuse of discretion.
2. Melted Bucket bv the Couch
Arndt argues that the trial court erred when it excluded Mann's testimony
about the remains of a plastic bucket found near the proposed point of the fire's
origin. Pet'r's Suppl. Br. at 7. Because the bucket was made of a material that had
lower melting and boiling points than the fill material for the beanbag chair, Arndt
contends that the presence of the melted bucket disproved Lynam's hypothesized
ignition sequence and showed the overall inadequacy of Ljmam's investigation. Id.
at 3.
At trial, the State argued that Mann's manipulation ofthe bucket from the fire
scene constituted an investigation and was therefore problematic because Mann did
not follow established origin and cause protocols. 19 VRP(Nov. 12,2015)at 3658-
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State V. Arndt(Shelly Margaret), 95396-1
67. In response, there was another lengthy discussion between the parties and the
court regarding the bounds ofan origin and cause investigation. Id. Ultimately, both
sides were given the opportunity to make arguments specific to the bucket itself:
THE COURT: But there's still an issue of the bucket.
MR.LaCROSS: The bucket—again, he is there—
THE COURT: How is he not there with the foosball table and taking
the remnants there and having it tested? How is the bucket any different from
that?
MR.LaCROSS: Well, I guess, I'm—^I'm trjnng to articulate it. ... Is
he supposed to ignore it?
Should he have tumed around and walked away, and said, you know,
I can see something [there] that's really, really important but I'd better not
look at, because then ifI do, you know, my opinions and I've all of a sudden
tumed into this person that's unreliable and none of my opinions about the
entire investigation will have any validity. If I happen to look at this very
obvious evidence, should I walk away?
MS. MONTGOMERY [the State]: I have an answer to that. No.
But what he should do is also pick up the other obvious pieces of
information: ceilingfan, pedestal fan, baseboard heaters. Do his own testing
on those. You don't get to selectively ... pick out one thing that works for
you and ignore the things that don't. You don't get to do it. And that's
exactly what Dale Mann did here because it supports his conclusions.
Id. at 3665-66. Once again, the court ruled to allow the testimony with express
limitations:
THE COURT: I tend to agree with that. He can testify that he saw a
bucket, but he doesn't get to test it. And the testing would be lifting the
bucket and detailing his observations.
Id. at 3666-67.
ER 702 expressly allows for the exclusion ofexpert testimony when an expert
fails to adhere to reliable methodology. McGary, 175 Wn. App. at 339. The
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State V. Arndt(Shelly Margaret), 95396-1
conclusion that Mann conducted selective testing and did not follow the procedures
specified by NFPA 921 and the scientific method is well supported by the record, as
evidenced in the excerpts above. The trial judge gave Arndt ample opportunities to
defend the procedures used in Mann's investigation and specifically heard
argumentation about the manipulation of the bucket itself. Because the limitations
placed on Mann's testimony regarding the bucket relied on supported facts and were
not "manifestly unreasonable," there was no abuse of discretion. See, e.g., Lord,
161 Wn.2d at 283-84.
3. Plastic Container
Arndt argues that the trial court erred when it excluded Mann's opinion that
the area around the basement hearth had not been properly examined and prevented
Mann from explaining the significance of a second "melted plastic remnant" that he
had discovered adhered to the floor. Pet'r's Suppl. Br. at 8. We disagree. The
record clearly supports the fact that Mann was able to testify to photographs taken
ofthe basement hearth and explain their significance:
[MR. MANN:] The second thing of interest here is that the fireplace
hearth here is—still has quite a bit of debris on it. And the Fire Marshal said
that that was layered down to clean, but it's obvious that it was not.
[MR.LaCROSS]: And so what's significant about it not being layered
down?
[MR. MANN:]If you don't layer that down to the ceramics, you have
no idea what was actually present on that ceramic hearth prior to the fire.
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State V. Arndt(Shelly Margaret), 95396-1
And you would never have a chance to see evidence of those if you
don't layer all the way down to that ceramic hearth. And that process was
not done by the Kitsap County Fire Marshal.
20 VRP (Nov. 16, 2015) at 3859. Additionally, Mann was able to testify that he
found remnants of a plastic container by the hearth and about the significance ofthe
fact that the bottom side of the plastic was in pristine condition. Arndt, slip op. at
13. For these reasons, Arndt fails to show an abuse of discretion by the trial court
on this issue.
4. Polystyrene Test Results
Arndt argues that the trial court erred by excluding Mann's "lab test results
showing the presence of polystyrene around the foosball table and the absence of
polystyrene at the hypothesized point of origin." Pet'r's Suppl. Br. at 8. The court
and the parties engaged in a lengthy discussion about the procedures for polystyrene
testing and the relationship of polystyrenes to the origin and cause of the fire. 18
VRP (Noy. 10, 2015) at 3564-79. As the record makes clear, Arndt was giyen
multiple opportunities to demonstrate the admissibility of the polystyrene test
results:
THE COURT:I'm persuaded by the State's argument on this issue.
Certainly, it may be that—^that he tested for polystyrenes there, but it
is not relevant unless it can be connected. And there's not been a sufficient
connection to a bean bag chair.
We know that the testimony has been that styrenes or polystyrenes are
abundant.
MR.LaCROSS: Can I have my fourth or fifth bite at this apple?
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State V. Arndt(Shelly Margaret), 95396-1
THE COURT: No. Well, okay. Go ahead.
MR. LaCROSS: It is absolutely critical to show that they did not
follow the scientific procedure. Did not investigate other potential causes
and origin.
And this shows—it clearly shows that they did not layer over here.
When it was layered over here, lo[] and behold there is polystyrene that is
found.
THE COURT: What does that mean?
THE COURT: What is your witness going to say that polystyrene
means?
Is he just going to say it is polystyrene, or is he going to say it was
polystyrene that came from the bean bag chair?
MR.LaCROSS: He will say it is a polystyrene. He's not going to say
that it came from a bean bag chair.
Id. at 3573-75. In addition to a lack of relevance due to Mann's inability to connect
the polystyrene to the beanbag chair, the court also excluded Mann's polystyrene
testing due to Mann's failure to comply with the scientific method.
THE COURT: And ifI were to allow him to testify to the polystyrene
testing,that effectively allows this witness to go through a fire scene and pick
out areas that he believes are important for purposes of this litigation to
advance or diminish certain aspects of the scene.
19 VRP (Nov. 12, 2015) at 3650-51. Because the trial judge clearly articulated her
rationale, relied on supported facts, and took a reasonable view under the governing
standards, there was no abuse of discretion. See, e.g., Lord, 161 Wn.2d at 283-84.
The judge made clear that Mann's polystyrene testing was excluded because it was
not relevant and not reliable. Both of these exclusions are justified under ER 702.
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State V. Arndt(Shelly Margaret), 95396-1
5. Flashover
Amdt argues that the trial court erred when it excluded Mann's opinion that
the room went to "flashover" because this fact had the potential to skew the fire
marshal's investigation. Pet'r's Suppl. Br. at 8. In accordance with the court's
previous evidentiary rulings, Mann was able to testify to errors in the investigation
and the potential impacts of a "flashover":
[MR. MANN:] It was apparent that fairly early in their investigation they
zeroed in on what they call "lowest area of bum" as the origin ofthe fire.
And really, in my opinion, didn't recognize the fact that the room
didn't go to flashover. And the lowest area of bum, particularly in the case
of flashover, may not be the origin of the fire.
When a room gets to—goes into flashover, you need to be careful and
investigate the entire room.
20 VRP (Nov. 16, 2015) at 3814. As the Court of Appeals recognized and quoted
in its opinion, Mann was also able to testify to the fact that signs of"flashover" were
present at the scene. Arndt, slip op. at 16; 20 VRP (Nov. 16, 2015) at 3827-28.
Finally, Mann was able to offer the following testimony on direct examination:
[MR.LaCROSS:] So from your review ofthe Kitsap County Fire Marshal's
investigations, were there any indicators, as to whether or not flashover
occurs when you look at a fire scene, missing?
[MR. MANN:] I believe that that fire scene had practically every post-fire
indicator for flashover. And it had many indicators in the sequence, if you
look at the timeline offlashover.
So, yes,it had many—there's nothing at all inconsistent with anything
about that fire to indicate that it did not go to flashover.
20 VRP (Nov. 16, 2015) at 3894. A plain reading of the record shows that Amdt
was able to put forth testimony regarding the effect of a "flashover" on the
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State V. Arndt (Shelly Margaret), 95396-1
investigation and the potential for a "flashover" to have occurred in this case. While
this testimony was subject to some limitations, these limitations were well within
the trial court's discretion, and Mann was allowed to offer testimony supporting a
theory of"flashover."
6. Review of Reports
Arndt argues that the trial court erred by excluding Mann's conclusions drawn
from his review of police, fire department, and coroner reports. Pet'r's Suppl. Br. at
8. An examination of the record shows that the court properly considered the
expert's adherence to approved methodology under ER 702:
THE COURT: Where in the scientific literature does it say that a fire
marshal needs to go through the police reports and verify every statement
and essentially track a police investigation?
I suppose that's really what it comes down to when we get to this sort
of thing.
Is the Fire Marshal expected to follow a coroner's report or to follow
a police report to consistently cross-check facts?
Is that in the fire literature under 921 saying that that is the scientific
method?
MR.LaCROSS: There is nothing-—^there is nothing in the NFPA 921
that says you have to go and verify with—check with the investigating
sheriffs department or anything like that.
THE COURT: If that's the case, does that not then supplant this
witness's opinion, not necessarily expert, what he might think should be done
compared to somebody else? Does that qualify as an expert opinion?
MR. LaCROSS: Yes, it is still—it is—it is information that is
available, that is whether—^whether or not, you know, this person actually,
for example, smoked. It shows—the information that Fire Marshal took has
to be validated. Now it doesn't say how you have to validate it....
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State V. Arndt(Shelly Margaret), 95396-1
MS. MONTGOMERY [the State]: He has no basis under 921 or the
peer review or anything. He has shown no authority for him to testify to any
of this as an expert.
THE COURT: And certainly that is evidence that has come in through
other witnesses. We've had testimony as to, you know, what was asked of
various people. And I don't know it requires expert testimony to get there.
THE COURT: All right. Well, I stand by my previous ruling.
MR. LaCROSS: Which was?
THE COURT: That this witness will not get into his review of the
particular police reports and the coroner's report.
19 VRP (Nov. 12, 2015) at 3758-60. As evidenced by the record, the court clearly
understood the issue and applied the correct legal standard under ER 702. Because
Mann's expert testimony regarding review of applicable police, fire department, and
coroner reports did not accord with accepted methodology, the court did not abuse
its discretion when it excluded this testimony^
7. Demonstrative Exhibit
Arndt argues that the trial court erred when it excluded photographic evidence
demonstrating how burning liquids pool and create protected areas during a fire.
^ Of note, the Court of Appeals did find an abuse of discretion in this instance and
agreed with Arndt that the tilal court erroneously "excluded Mann's opinions drawn from
his review of police reports and coroner's reports as a part of his evaluation of Lynam's
investigation." Arndt, slip op. at 25. Nonetheless, the Court of Appeals found this error to
be harmless and concluded there was no violation of Amdfs right to present a defense. Id.
at 25-27. Because trial courts are given a large degree of freedom when making these
evidentiary determinations and are subject to reversal only for a clear abuse of discretion,
Yates, 161 Wn.2d at 762, we find that no abuse of discretion occurred. Nonetheless, we
agree with the Court of Appeals that even if Mann's testimony about the reports should
have been allowed, the exclusion is harmless because "the discrepancies were apparent to
the jury" through other expert testimony. Arndt, slip op. at 25-27.
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State V. Arndt(Shelly Margaret), 95396-1
Pet'r's Suppl. Br. at 8. Despite the fact that the use of demonstrative or illustrative
evidence is favored, the trial court is given wide discretion in detefmining whether
to admit demonstrative evidence. In re Pers. Restraint of Woods, 154 Wn.2d 400,
426, 114 P.3d 607 (2005). In order to be admissible, demonstrative evidence must
utilize experimental conditions that are substantially similar to the facts of the case
at hand. State v. Hultenschmidt, 125 Wn. App. 259, 268, 102 P.3d 192 (2004).
Ultimately, the test for admissibility of an experiment as evidence is '"whether it
tends to enlighten the jury and to enable them more intelligently to consider the
issues presented.'" Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d
99, 107, 713 P.2d 79 (1986)(quoting Sewell v. MacRae, 52 Wn.2d 103, 107, 323
P.2d 236 (1958)).
In making an admissibility determination regarding Mann's photographs
demonstrating the bum pattems ofpooling liquids, the court had significant concems
about the similarity:
THE COURT: So I'm not sure I'm understanding what an ignitable
liquid has to do with this case.
I understand your witness may have wanted to set a fire, butjust from
yOur very words right now, you are saying this is what happens when you
put ignitable liquid from that picture and what remains. I don't see how that
has a bearing on this case.
If your witness wants to testify to the protected area, the subflooriiig
ofa protected area, and what it looks like after burning,that can be testimony.
And if he's got some evidence to show what it looks like, just generally
speaking as somebody in his field, that's perfectly fine too. This is what I'm
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State V. Arndt(Shelly Margaret), 95396-1
sajdng. This is what he did. He took ignitable liquid and lit it on fire and
wants to show it. 1 don't see the relevancy.
THE COURT: Well, he can testify to protected areas and what they
looked like generally based on his training and experience.
But to present what I think can only be described as a test oftaking an
accelerant and somehow pouring it in a circle to leave a certain pattern, I'm
not seeing the bearing on that.
Now,he can testify to his observations based upon his experience and
training as to what a protected area would look like; that would be fine.
That's allowed.
20 VRP(Nov. 16,2015)at 3971-73. On multiple occasions,the trial court expressed
concern with the dissimilarity of the demonstrative evidence, in addition to other
relevancy concerns. See id. at 3965-4005. Instead of excluding the evidence
wholesale,the trial court provided ample opportunities to present the same testimony
in another medium. Id. at 3971-73. Ultimately, because Maim's photographs
involved experimental conditions that were not sufficiently similar to the case at
hand, primarily due to the presence ofan ignitable liquid, the trial court acted within
its discretion to exclude the exhibits.
8. Smoke Visibility
Lastly, Arndt argues that the trial court erred when it "prevented Marm from
critiquing Lynam's conclusion that smoke would have been immediately visible in
the living room had an accidental fire started in the basement directly below the
fireplace insert." Pet'r's Suppl. Br. at 8. The Court of Appeals found this argument
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State V. Arndt(Shelly Margaret), 95396-1
to be "factually meritless as Mann testified on the subject and presented the
information that he gathered." Arndt, slip op. at 29.
Mann was allowed to testify at length regarding his efforts to evaluate
Lynam's conclusion that there was no visible smoke:
[MR. MANN:] Well, to me, when I started looking at the whole discussion
about how an apparent smoke would be upstairs, we had a very quickly
building fire downstairs and an open stairway. It seems obvious to me that
there is smoke upstairs in any case.
Because shortly after that, Donny was awoken, he went down to the
foyer, and saw smoke coming up as well as flames. That would be highly
unusual not to be able to smell smoke 30 to 60 seconds prior to that.
So to me, the question of: Was there noticeable smoke upstairs? Is
kind of a non-sequitur. The whole discussion didn't make a lot of sense to
me.
But what I began to do was just look at the hypothesis that Dormy
should have noticed smoke when he walked by the vents by the fireplace in
the living room. And that's kind of what I'm evaluating at this point. Just
given the fact that maybe there wasn't smoke already coming up the staircase
and shouldn't Donny have seen smoke coming through the vents.
20 VRP (Nov. 16, 2015) at 3897-98. In addition, Mann was also able to detail his
efforts to detemiine how much light was present on the night in question and why
these facts would matter in an investigation:
[MR. MANN:]I was gathering data to evaluate the hypothesis that there
was sufficient light to see smoke. So this was just a question of how
much light could there be in that house. Even though I don't have a
specific answer at this point,I'm illustrating some ofthe things one would
need to consider to answer that question.
Id. at 3899. When the State objected to this testimony, the judge refused to strike it
from the record. Id. at 3902. Given the testimony allowed, Arndt fails to state any
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State V. Arndt(Shelly Margaret), 95396-1
grounds to find an abuse of discretion, and the Court of Appeals correctly concluded
that this claim was factually mcritless.
Having carefully reviewed the trial record, we conclude that the trial court
exercised appropriate discretion in making the above-described admissibility
detenninations. We are mindful that "[t]he trial court has a gatekeeping function
under the rules of evidence." State v. Ellis, 136 Wn.2d 498, 540, 963 P.2d 843
(1998). This necessarily entails making judgment calls as to what thejury may hear.
Id. at 541 (noting judges "must not abdicate our gatekeeping role by receding from
. difficult decisions and letting the jury decide how much weight to give to evidence
that is in fact irrelevant"). Because the trial court's decisions were based on tenable
grounds, and the rationale was clearly stated in the record, the evidence rulings did
not constitute an abuse of discretion.
Sixth Amendment Right To Present a Defense
Because a defendant's constitutional right to present a defense is not absolute,
see, e.g., Jones, 168 Wn.2d at 720, the State's interest in excluding evidence must
be balanced against the defendant's need for the information sought to be admitted.
Id. In some instances regarding evidence of high probative value, "it appears no
state interest can be compelling enough to preclude its introduction consistent with
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State V. Arndt(Shelly Margaret), 95396-1
the Sixth Amendment and Const, art. 1 § 22." State v. Hudlow,99 Wn.2d 1,16,659
P.2d 514(1983).
As an example, in Jones, the trial court interpreted a rape shield law to
preclude the defendant from presenting any evidence that the victim had voluntarily
engaged in an "all-night, drug-induced sex party." Jones, Wn.2d at 721. This
court reversed, noting that this testimony was "evidence ofextremely high probative
value; it is Jones's entire defense." Id. While we held that the rape shield statute
was inapplicable as a matter of law, we also observed that even if the statute did
apply, the fact that the "sex party evidence" was Jones's entire defense.meant that^
the statute could not be invoked to bar the admiission of such,evidence' without
violating the Sixth Amendment.^ /J. at 723-24.
Unlike in Jones, Amdt's proffered evidence was not excluded entirely and
Mann was able to testify at length for the defense, disputing Lynam's conclusions
and proposing an alternative ignition sequence. See 19 VRP (Nov. 12, 2015) at
3573-3794;20 VRP(Nov. 16,2015)at 3797-4036;21 VRP(Nov. 17,2015)at 4040-
^ Even though Jonej was resolved using a statutory interpretation analysis,this court
still weighed the State's interest in exclusion versus the probative value of the evidence to
the defendant. See Jones, 168 Wn. 2d at 721. Because the evidence that Jones sought to
admit was of "extremely high probative value, . . . no State interest can possibly be
compelling enough to preclude [its] introduction" and "the trial court violated the Sixth
Amendment when it barred such evidence." Id.
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State V. Arndt(Shelly Margaret), 95396-1
4162. For example, Mann was able to articulate the fact that origin and cause were
incredibly difficult to determine when a room went to "flashover":
And they found that somewhat less than six percent of the people could
correctly identify even the quadrants ofthe fire in these one-room bum cells.
And these bum cells would have [a] trash can, a bureau, a bed, they would
be carpeted. Very simple furnishings.
But because of the effects of these extremely high heat fluxes that
occur at flashover, it really begins to disguise fire pattems.
19 VRP (Nov. 12, 2015) at 3706. Mann followed this discussion by testifying that
"flashover" likely occurred in this case:
This is significant because it shows the main part of the floor, most of the
floor in the family room/rec room following the Kitsap County investigation.
... All this kind—these pattems here are all concrete that chipped up. It
means it got very hot. ... It said we had a tremendous amount of energy or
a broad area that was radiating down to the floor. We know that doesn't bum
as well as newspaper, so we know we had more than 20 kilowatts per square
meter of energy, and that is a classic definition offlashover.
20 VRP (Nov. 16, 2015) at 3827-28. This testimony illustrates how, despite the
limitations placed on Mann's testimony by the court's evidentiary mlings, Amdt was
able to present relevant evidence supporting her central defense theory: that the fire
marshal's investigation was fundamentally flawed and that the proposed origin and
ignition sequence was incorrect.
Unlike in Jones, where the court was concerned that application of a rape
shield statute eliminated the defendant's entire defense, Jones, 168 Wn.2d at 724,
Amdt was able to advance her defense theory, including through Mann's testimony
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State V. Arndt(Shelly Margaret), 95396-1
rebutting the State's expert's conclusions. In this regard, the case is more similar to
Clark, which also involved limitations on expert testimony(on the basis ofrelevancy
rather than ER 702), but the defendant remained able to offer evidence to support
his defense theories. 187 Wn.2d at 653-54. We conclude that Arndt suffered no
violation of her Sixth Amendment right to present a defense.
In sum, applying Clark's two part standard of review, we hold that the trial
court did not abuse its discretion in limiting Mann's testimony but properly exercised
its gatekeeping function and correctly applied ER 702. Despite placing significant
limitations on the expert testimony of Mann,the trial court did not deprive Arndt of
her Sixth Amendment right to present a defense. We affirm the Court of Appeals
on this issue.
B. Amdt's Right To Be Free from Double Jeopardy Was Not Violated When the
Trial Court Entered Convictions for Both Aggravated First Degree Murder
with a First Degree Arson Aggravator and First Degree Arson
When the Court of Appeals considered Amdt's double jeopardy claims, it did
so prior to our decision in Allen. Arndt, slip op. at 34-36. The Court of Appeals
drew a distinction between the elements of the crimes at issue and aggravating
circumstances, and concluded that the two crimes were not the "same in law." Arndt,
slip op. at 36. We affirm Amdt's convictions on a different rationale. Because the
two convictions at issue have independent purposes and effects, we find that the
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State V. Arndt(Shelly Margaret), 95396-1
legislature clearly intended to allow the imposition of multiple punishments in this
instance.
Claims of double jeopardy present questions of law, and our review is de
novo. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). Because the
legislature has the power to define criminal conduct and assign punishment, the first
step in determining whether a defendant has suffered multiple:punishments for the
same offense is to determine what punishments the legislature has authorized. State
V. Calle, 125 Wn.2d 769,776,888 P.2d 155(1995). In order to qualify as the "same
offense" for double jeopardy purposes, the two offenses must be the same both in
, lav/ and in fact.. Id. at 111. Multiple punishments may implicate double jeopardy
y.concems, regardless of whether the sentences received are served concurrently. Id.
at 773.
In this case, the dispositive question is whether the legislature intended to
impose separate punishments for first degree murder aggravated by the commission
of first degree arson and first degree arson itself. See State v. Freeman, 153 Wn.2d
765, 771, 108 P.3d 753 (2005). "If the legislature authorized cumulative
punishments for both crimes, then double jeopardy is not offended." Id. We follow
four analytical steps to determine legislative intent regarding whether cumulative
punishment is authorized: (1) consideration of any express or implicit legislative
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State V. Arndt(Shelly Margaret), 95396-1
intent,(2) application of the Blockburger,^ or "same evidence," test,(3) application
ofthe "merger doctrine," and(4)consideration of any independent purpose or effect
that would allow punishment as a separate offense. 7(5?. at 771-73.
"Ifthere is clear legislative intent to impose multiple punishments for the same
act or conduct, this is the end ofthe inquiry and no doublejeopardy violation exists."
State V. Kelley, 168 Wn.2d 72, 77, 226 P.3d 773 (2010). Legislative intent may be
express,see RCW 9A.52.050,'° or implied. Freeman, 153 Wn.2d at 771-72. Neither
RCW 10.95.020 (definition of Capital punishment—^Aggravated first degree
murder) nor RCW 9A.48.020 (Arson in the first degree) contains any express
language allowing multiple punishments. The State argues that legislative intent for
separate punishment is nonetheless clearly evidenced. It relies on legislative
inaction in the face of cases dating back to 1995 "that hold that separate punishment
of substantive offenses was proper even when they were also aggravating
circumstances under RCW 10.95.020." Suppl. Br. of Resp't at 5. Generally, the
legislature's failure to amend a statute after judicial construction of such statute
signals legislative agreement with the construction. See State v. Edwards, 84 Wn.
^ Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
See, e.g., RCW 9A.52.050 ("Every person who,in the commission of a burglary
shall commit any other crime, may be punished therefor as well as for the burglary, and
may be prosecuted for each crime separately.").
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State V. Arndt(Shelly Margaret), 95396-1
App. 5,12-13,924 P.2d 397(1996). We have previously construed the use ofRCW
10.95.020's aggravators as intending cumulative punishments, not constituting a
violation of double jeopardy, see State v. Brett, 126 Wn.2d 136, 181, 892 P.2d 29
(1995)(holding no violation of double jeopardy when defendant was charged with
aggravated first degree murder and first degree felony murder), and the legislature
has never amended the statute in response to our precedent.
The question is whether we must reconsider this precedent in light of our
recent decision in Allen, 192 Wn.2d 526. In Allen, this court held that "RCW
10.95.020 aggravating circumstances are elements ofthe offense of aggravated first
degree murder for double jeopardy purposes." Id. at 544. As noted, because the
Court of Appeals opinion in this case predated ^//en by a year, the Court of Appeals
did not consider any potential conflict with Allen in its analysis of our double
jeopardy precedent. See Arndt, slip op. at 34-36. Instead, the Court of Appeals
concluded that, because aggravating factors are not elements of first degree mtirder,
the "same evidence" test is inapplicable. Arndt, slip op. at 35.
We recognize that our decision in Allen alters the Blockburger equation and
eclipses the Court of Appeals' reasoning. It does not, however, change the central
protections afforded by the Fifth Amendment. The Fifth Amendment protection
from double jeopardy protects against multiple convictions for the same offense and
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State V. Arndt(Shelly Margaret), 95396-1
multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684,
688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). "The double jeopardy clause does
not prohibit the imposition ofseparate punishments for different offenses." State v.
Noltie, 116 Wn.2d 831, 848, 809 P.2d 190(1991)(emphasis added).
In Allen, we explicitly addressed the difference in analysis between multiple
prosecutions and multiple punishments. 192 Wn.2d at 541. Significantly, we
distinguished Kelley, 168 Wn.2d 72, a case that considered "whether imposition-of
a firearm enhancement where use of a firearm was an element of the underlying
offense violated the double jeopardy prohibition on multiple punishments for the
same offense." Allen, 192 Wn.2d at 542. The court in Allen examined Kelley's
argument that because an "enhancement" could be considered an "element" of
greater offense, an unintended, redundant punishment was created in violation of
double jeopardy. Allen, 192 Wn.2d at 542. "We concluded that since 'none of[the
Apprendi cases]'^^'^ concern the double jeopardy clause,' their holdings did not
apply." Id. (alteration in original) (quoting Kelley, 168 Wn.2d at 82). For this
reason, the court in Allen concluded that 'Kelley did not concern the same legal
question presented here. Kelley claims he was wrongfully subjected to multiple
punishments, while Allen faces multiple prosecutions." Id.
Apprendi V. New Jersey,530 U.S. 466,120 S. Ct. 2348,147 L. Ed.2d 435(2000).
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State V. Arndt(Shelly Margaret), 95396-1
Like Kelley, Amdt's case concerns multiple punishments, not multiple
prosecutions. The double jeopardy analysis in Allen does not apply to cases
involving multiple punishments. Id. Kelley continues to apply and affirms the
principle that "cumulative punishments may be imposed for the same act or conduct
in the same proceeding if that is what the legislature intended." Kelley, 168 Wn.2d
at 83. Accordingly, Allen does not prohibit the imposition of multiple punishments
if legislative intent can be found in one of the four double jeopardy analytical steps
articulated in Lreemaw. 153 Wn.2d at 771-73.
Because there is no express or implied articulation of legislative intent, we
proceed to application of the Blockburger "same evidence" test. Id. at 772.
"'[E^here the.same act or transaction constitutes a violation oftwo distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only
one, is whether each provision requires proofofafact which the other does not.'"
In re Pers. Restraint ofOrange, 152 Wn.2d 795, 817, 100 P.3d 291 (2004)(quoting
Blockburger, 284 U.S. at 304). Despite the Court of Appeals reasoning, the State
admits that the convictions at issue in this case are the same under Blockburger
because "aggravated murder as charged reqidred proof of every element of first-
degree arson." Suppl. Br. of Resp't at 7-8. However, the State correctly observes
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State V. Arndt(Shelly Margaret), 95396-1
that Blockburger is not dispositive and that our analysis must continue to determine
whether the legislature intended multiple punishments. Id.
Because Blockburger is not dispositive of legislative intent, we next look to
merger analysis. Freeman, 153 Wn.2d at 772. "Under the merger doctrine, when
the degree of one offense is raised by conduct separately criminalized by the
legislature, we presume the legislature intended to punish both offenses through a
greater sentence for the greater crime." Id. at 772-73. One exception to the merger
doctrine, however, is when overlapping offenses have independent purposes or.
effects. State V. 99 Wn.2d 413, 421, 662 P.2d 853 (1983). In such
instances, separate punishments are allowed. Id. "To establish an independent
purpose or effect of a particular crime, that crime rhust injure the person or property
of the victim or others in a separate and distinct manner from the crime for which it
also serves as an element." State v. Harris, 167 Wn. App. 340, 355, 272 P.3d 299,
revzew 175 Wn.2d 1006 (2012).
This independent purpose or effect exception applies here. Amdt was charged
with aggravated first degree murder for the death of a single victim, Darcy Veeder
Jr. In contrast, her conviction for first degree arson, in addition to resulting in the
death of Veeder, also destroyed the O'Neils' home and was "manifestly dangerous"
to the other occupants: O'Neil, Thomas,Kriefels, and the minor children. See RCW
-38-
State V. Arndt(Shelly Margaret), 95396-1
9A.48.020(l)(a). Indeed,the arson charge included a separate aggravator for impact
on persons other than the victim, CP at 354-55. The presence of additional victims
places this case inside the "independent effect" exception to the merger doctrine that
allows for the imposition ofseparate punishments. For this reason, allowing both of
Amdt's convictions to stand does not constitute a violation of double jeopardy.
Additionally,in our merger analysis, we find that in the consideration ofthese
two crimes, an independent purpose exists on an abstract level that also prevents the
merger of the two offenses and allows for the imposition of multiple punishments.
See Freeman, 153 Wn.2d at 773. Here, the two statutes in question are located in
different chapters of the criminal code and are intended to protect different societal
interests. In Calle, this court found support for its conclusion that the legislature
intended separate punishments for the crimes ofrape and incest where(1)the statutes
served different purposes and (2) the statutes were located in different chapters of
the criminal code. 125 Wn.2d at 780.
While this case is not exactly like Calle, the two crimes charged here also
have separate purposes and are set forth in different parts of the criminal code.
Because the primary purpose of the arson statute is to protect property, it is located
in chapter 9A.48 RCW (consisting of offenses primarily intended to protect
property). In contrast, because the primary purpose ofthe aggravated murder statute
-39-
State V. Arndt (Shelly Margaret), 95396-1
is to protect human life, aggravated first degree murder is found in two different
chapters dedicated to this end, chapter 9A.32 RCW (Homicide) and chapter 10.95
RCW (Capital punishment—^Aggravated first degree murder). This provides an
additional indication that the legislature clearly intended separate punishments for
the crimes of aggravated first degree murder with an arson aggravator and of first
degree arson. We hold that the two crimes do not merge and the imposition of
multiple punishments does not violate double jeopardy.
In sum, because this case concerns the imposition of multiple punishments
and not multiple prosecutions, there is no conflict with our recent holding in Allen.
See Allen, 192 Wn.2d at 542; see also Kelley, 168 Wn.2d at 83. The legislature
clearly intended multiple punishments for the crimes of aggravated first degree
murder and of first degree arson. Because the crimes affected different victims and
have independent purposes, the two offenses do not merge. As a result, we affirm
the Court of Appeals, albeit on different reasoning, and reject Amdt's double
jeopardy argument.
CONCLUSION
The trial court did not abuse its discretion in limiting the testimony of defense
expert Mann, and Arndt was not denied her Sixth Amendment right to present a
defense as a result of the evidentiary rulings. Arndt was able to offer relevant
-40-
State V. Arndt(Shelly Margaret), 95396-1
admissible testimony to rebut the State's theory, investigation, and cause and origin
determinations, and to support her defense theory.
Arndt's convictions for both first degree aggravated murder and first degree
arson did not violate her right to be free from double jeopardy. The legislature
clearly intended multiple punishments for these crimes, and despite the factual
overlap, the crimes do not merge because they have separate purposes and effects.
Because this case involves multiple punishments and not multiple prosecutions, it is
not affected by our holding in Allen. We affirm the Court of Appeals on both issues
and uphold Amdt's convictions.
-41-
State V. Arndt(Shelly Margaret), 95396-1
-g-
WE CONCUR:
■ rVh
-42-
State V. Arndt (Shelly M.)
No. 95396-1
MADSEN,J.(dissenting)—A defendant has a constitutional right to present a
defense. U.S. CONST, amends. VI, XIY; WASH. CONST, art. I, §§ 3, 22. Shelly Arndt was
stripped of that right based on a fundamental misunderstanding of the testimony of her
expert witness, Dale Mann. Mann was hired to review the State's arson investigation and
the conclusions of its experts; he determined both were flawed. Yet, because Mann did
not conduct a separate origin and cause inquiry into the fire, the trial court precluded him
from presenting his critique to the jury. This was error. Mann was called to testify not as
to the cause and origin of the fire that ended the life of Arndt's boyfriend, but to highlight
the weaknesses in the State's theory of the case. He was not required to conduct a
separate inquiry because his testimony was not that there was a separate cause of the fire,
but that investigators overlooked critical evidence that called their conclusions into
question.
The majority finds no problem with the trial court's reasoning. I disagree. The
partial exclusion of Mann's testimony violated Arndt's constitutional right to present a
defense, and because it was the only evidence Arndt provided to refute the State's
investigation, that constitutional error was not harmless. I respectfully dissent.
No. 95396-1
Madsen, J., dissenting
Exclusion ofPortions of Mann's Testimony
Shelly Amdt engaged Dale Mann, an undisputed expert witness, to poke holes in
the State's theory ofthe ease. Fire Marshal David Lynam initially investigated the fire.
He concluded that it was intentionally set by someone igniting a beanbag chair near a
couch, which caught fire and spread flames through the house. Mann examined the seene
and located the remnants of a plastic bucket near the coueh, which Lynam's investigation
overlooked. Because the bucket was stuck to the floor, Mann pried it loose with a shovel
and noted that the heat from the fire melted it to that location. Mann found this
significant because the type of plastie used in the bucket(polyethylene) melted at a lower
temperature than the material in the beanbag chairs (polystyrene). Consequently, Marm
reasoned, the bueket should have been thoroughly consumed if a beanbag chair had been
ignited nearby.
Mann also tested debris from the seene, and while he found residue on a foosball
table in the basement, he did not find polystyrene residue near the eouch. This evidence
would have contradicted Lynam's point of origin theory. Based on this evidenee, Mann
eoncluded that the cause of the fire was undetermined and that the State's investigation
was incomplete.
Generally, expert testimony must satisfy both the Frye^ test and ER 702. State v.
Copeland, 130 Wn.2d 244, 256, 922 P.2d 1304 (1996). The Frye test is used to prevent
the admission of novel seientific methods, as new teehniques should be scrutinized until a
'Frye v. United States, 54 U.S. App. D.C. 46, 293 F. 1013 (1923).
2
No. 95396-1
Madsen, J., dissenting
"scientific consensus decides the methodology is reliable." Lakey v. Puget Sound
Energy, Inc., 176 Wn.2d 909, 918-19, 296 P.3d 860(2013). After making a
determination under Frye, we look to whether the evidence is admissible under ER 702 to
decide whether the expert's testimony is relevant. See Copeland, 130 Wn.2d at 256
(citing State v. Cauthron, 120 Wn.2d 879, 889-90, 846 P.2d 502(1993)). Admissibility
under BR 702 is reviewed for abuse of discretion.
Admissibility under Frye is reviewed de novo and is a mixed question of law and
fact. Id. at 255. A party may request a ''Frye hearing" if there is a question regarding a
scientific method. Similarly, a party may object under Frye if there is any question
regarding the use of a scientific method. Like a Frye determination itself, a deeision to
have a Frye hearing is reviewed de novo. However, if the evidence is essentially a
defendant's entire defense, or has "extremely high" probative value, no state interest will
warrant its exclusion under the Sixth Amendment to the United States Constitution. State
V. Jones, 168 Wn.2d 713, 721, 230 P.3d 576 (2010).
In my view, ER 702 alone applies in this case because the State did not object to
Mann's testimony under Frye, the trial court did not hold a Frye hearing, and the court
did not base its exelusion ruling on Frye. Indeed, the trial court's basis for excluding
Mann's testimony was ER 702: Mann failed to perform a full origin and cause
investigation, thus failing to follow "reliable methodology." Lakey, 176 Wn.2d at 918-
19. But, as Mann repeatedly explained, he was retained solely to evaluate Fire Marshal
Lynam's work. To accomplish this, Mann reviewed Lynam's investigation and visited
No. 95396-1
Madsen, J., dissenting
the scene to collect data. He had no independent hypothesis on the origin or cause ofthe
fire. The Mann investigation sought to verify whether Lynam's conclusions were proper,
not to provide a competing theory of causation.
A full origin and cause investigation was not necessary, nor was it required. The
State offered a theory on the cause ofthe fire, as required to meet its burden of proof. A
defendant carries no burden of proof and is required to prove nothing. State v. Camara,
113 Wn.2d 631,638, 781 P.2d483(1989)(citing/« re Winship, 397 U.S. 358,90 S. Ct.
1068,25 L. Ed. 2d 368 (1970)), overruled in part on other grounds by State v. W.R., 181
Wn.2d 757, 336 P.3d 1134(2014). Requiring Amdt's expert to undertake an
urmecessary causation inquiry shifts the burden away from the State and onto the defense
and is unquestionably improper. State v. Emery, 174 Wn.2d 741, 760,278 P.3d 653
(2012)(citing State v. Gregory, 158 Wn.2d 759, 859-60, 147 P.3d 1201 (2006)).
Instead, I would hold Mann's testimony was relevant and admissible under ER
702. Mann was an undisputed expert with extensive training and experience as a fire and
arson investigator. His testimony would have challenged the opinions and conclusions of
the State's experts and explained the significance of evidence the State's investigators
overlooked. Lakey, 176 Wn.2d at 918 (testifying witness must be an expert, and the
testimony must assist the trier offact); State v. Thomas, 123 Wn. App. 771, 778,98 P.3d
1258(2004)("Expert testimony is helpful if it concerns matters beyond the common
knowledge of the average layperson."(citing State v. Farr-Lenzini, 93 Wn. App. 453,
461,970P.2d313 (1999))).
No. 95396-1
Madsen, J., dissenting
Moreover, Mann's investigation was essentially Amdt's only defense. The State's
experts asserted that Arndt lit the flame, igniting the beanbag chair and couch, and so
committed arson as well as the other charged crimes. Mann's testimony on the plastic
bucket and lack of expected residue near the couch would have undercut critical points of
the State's theory. Excluding it violates the Sixth Amendment right to present a defense
and was an abuse of discretion.
Harmless Error
A constitutional error is harmless if'"it appears beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.'" State v. Brown, 147
Wn.2d 330, 341, 58 P.3d 889(2002)(internal quotation marks omitted)(quoting Aet/er v.
United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). "An error is not
harmless beyond a reasonable doubt where there is a reasonable probability that the
outcome of the trial would have been different had the error not occurred." State v.
Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995)(citing State v. Benn, 120 Wn.2d 631,
649, 845 P.2d 289(1993)). "A reasonable probability exists when confidence in the
outcome of the trial is undermined." Id.
As discussed above, when the evidence is essentially a defendant's entire defense,
then there is no state interest that will supersede the defendant's right to present the
defense. Here, Amdt's only defense to the Lynam investigation was Mann's testimony
contradicting and questioning Lynam's conclusions. The majority holds that Mann was
still able to dispute some of Lynam's conclusions, thus Amdt was able to present a
No. 95396-1
Madsen, J., dissenting
defense. This misses the point. Mann was able to contradict the Lynam investigation
only by pointing out discrepancies in the report. He was unable to directly challenge the
investigation by providing data on the plastic bucket and lack of expected plastic residue
Mann determined by visiting the scene. This is the only direct evidentiary challenge to
Lynam's findings. Thus, it was Amdt's entire defense to the Lynam investigation, which
was critical to the State's case. Excluding it was not harmless error, and the exclusion
violated Amdt's constitutional right to present a defense.
Double Jeopardv
Another critical issue here is whether double jeopardy applies to an aggravator of
first degree arson in a first degree murder conviction. The majority holds that because
the legislature clearly intended separate punishment for the crimes of first degree murder
with an aggravator of first degree arson and first degree arson itself, double jeopardy is
not implicated. When considering whether cumulative punishment is appropriate, we
look to (1) consideration of express or implicit legislative intent,(2) application ofthe
"same evidence" test,(3) application of the "merger doctrine,"(4) consideration of any
independent purpose or effect that would allow punishment as a separate offense. See
State V. Freeman, 153 Wn.2d 765, 771-73, 108 P.3d 753 (2005).
It should be noted that the State admits the aggravator and the crime fall under the
same evidence mle. That is "where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other
No. 95396-1
Madsen, J., dissenting
does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
We must also consider that the landscape of criminal jurisprudence has changed
over the years. The Supreme Court held that any fact that increases the mandatory
minimum sentence is an element of the crime that must be submitted to the jury. See
Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314(2013). By
broadly holding so, arguably an aggravator is considered an "element" of the crime
because it increases the length of punishment for a defendant. But there are other
elements involved in first degree murder that may distinguish the aggravator and the
crime as two separate offenses. However, the State conceded in the lower appellate court
that first degree felony murder and aggravated first degree murder with first degree arson
as the aggravator are based on the same conduct. It should follow that first degree arson
and aggravated first degree murder with first degree arson as the aggravator also
constitutes the same conduct.
Blockburger and the same evidence tests control unless there is "a clear indication
of contrary legislative intent." State v. Calle, 125 Wn.2d 769, 778, 888 P.2d 155 (1995)
(emphasis added){diimg, Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137,
67 L. Ed. 2d 275 (1981)). In other words, overcoming Blockburger is an uphill battle.
No. 95396-1
Madsen, J., dissenting
Despite the majority's stretch to find such evidence, what little it uncovers does not
overcome Blockburger as clearly contrary legislative intent. See majority at 36-37, 39.^
This court has recently examined double jeopardy in a similar context. In State v.
Muhammad,No. 96090-9(Wash. Nov. 7, 2019), the prosecutors charged Bisir Bilal
Muhammad with felony murder predicated on first degree rape as well as first degree
rape. Muhammad challenged this as a violation of double jeopardy under Blockburger
and the same evidence tests. A majority of this court agreed that Blockburger applied. I
see no appreciable difference between felony murder predicated on rape and rape, and
that of aggravated first degree murder with an arson aggravator and first degree arson.
Amdt also argues that her convictions should have merged. The merger doctrine
applies "where the degree of one offense is elevated by conduct constituting a separate
offense." State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212(2008). The Court of Appeals
rejected the merger argument based on a hypertechnical nuance: the aggravator did not
"elevate" the degree of the offense. But the aggravator effectively increased the
punishment expected by Arndt and, as noted above, is considered an element of the
offense under United States Supreme Courtjurisprudence. The aggravator adds
additional elements to the crime and correspondingly elevates the "degree" of
^ As evidence of the independent purposes and effects exception to the merger doctrine, the
majority offers the different locations of arson and murder in the criminal code and the differing
protections they offer. Majority at 39. The majority cites Calle in support, but that case did not
concern the independent purposes and effects test. We discussed the criminal code and purposes
underlying the crimes of rape and incest as evidence that the legislature intended to punish the
offenses separately even though they were committed by a single act. Calle, 125 Wn.2d at 780-
81.
8
No. 95396-1
Madsen, J., dissenting
punishment to which a defendant expects. Even if we could apply such a nuance, the rule
of lenity counsels against it. Id. at 812-14(applying the merger doctrine under the rule of
lenity). The merger doctrine should apply here, and the first degree arson conviction
should merge with the aggravated first degree murder conviction.
The majority also argues State v. Allen, 192 Wn.2d 526,431 P.3d 117(2018), does
not apply because it involved multiple prosecutions, whereas here this case involves
multiple punishments. However,this is a distinction without effect. Allen also follows
contemporary jurisprudence and effectively removes the distinction between aggravating
factors and elements of a charged offense. See id. at 539 ("It is clear that the RCW
10.95.020 aggravating circumstances are elements for Sixth Amendment purposes
because they are not limited to proof of a prior conviction and, by law, they increase the
minimum penalty for first degree murder."). I would hold that double jeopardy was
implicated by the aggravator and the crime, and should have merged.
The majority further holds that even if the merger doctrine applies, the two
offenses fall under the independent purpose or effect exception. "To establish an
independent purpose or effect of a particular crime, that crime must injure the person or
property of the victim or others in a separate and distinct manner from the crime for
which it also serves as an element." State v. Harris, 167 Wn. App. 340, 355, 272 P.3d
299, review denied, 175 Wn.2d 1006 (2012). Also of note, the offense must not be
'"merely incidental to the crime of which it forms an element.'" Freeman, 153 Wn.2d at
778-79 (quoting State v. Frohs, 83 Wn. App. 803, 807, 924 P.2d 384 (1996)).
No. 95396-1
Madsen, J., dissenting
I disagree that the independent purpose or effeet exception applies here. The
majority reasons that the aggravated murder charge pertained to only one victim, whereas
the arson charge was '"manifestly dangerous' to the other occupants." Majority at 38.
But there was no independent purpose or effect here. While the arson certainly did affect
the property and others in addition to the victim here, they were merely incidental as it
appears the purpose ofthe arson was to target the victim and not everyone else in the
home. Moreover, without proof of the arson, Amdt would not be implicated by the
murder of the victim. That is, if the fire was accidental, then Amdt could not be
convicted of murder. Thus, the two offenses are incidental to one another and are not
separate and distinct. The two offense should merge, and double jeopardy is necessarily
violated.
Conclusion
A defendant's right to present a defense is violated when the evidence excluded
essentially amounts to a defendant's entire defense. Mann's testimony was the only
evidence that directly challenged the State's theory ofthe case. By excluding it, the trial
court removed Amdt's only defense against the evidence against her and violated her
constitutional right to present a defense. Moreover, the conviction of aggravated first
degree murder, with arson as the aggravator, and first degree arson violated double
jeopardy and should have merged. I would reverse the Court of Appeals' decision and
remand the ease to the trial court. Accordingly, I respectfully dissent.
10
No. 95396-1
Madsen, J., dissenting
11