Opinion
Nos. 35042-4-II; 36212-1-II.
January 6, 2009.
Appeals from a judgment of the Superior Court for Clallam County, No. 05-1-00079-1, George L. Wood, J., entered June 15, 2006.
Reversed and remanded by unpublished opinion per Houghton, J., concurred in by Penoyar, A.C.J., and Hunt, J.
UNPUBLISHED OPINION
Robert Covarrubias appeals his conviction of first degree murder, arguing multiple trial court errors. He also claims that insufficient evidence supports his conviction. We hold that sufficient evidence supports the conviction but because cumulative error prejudiced him, we reverse and remand for a new trial.
Covarrubias filed two separate appeals, first from the trial and second from the posttrial denial of his motion for a new trial. For purposes of this opinion, we have linked the two appeals.
Although this appeal raises multiple arguments, we discuss only those issues likely to arise on retrial or that would require reversal and dismissal. See footnote 18. We do not address Covarrubias's arguments based on ineffective assistance of counsel, prosecutorial misconduct, and the issues he raised in his statement of additional grounds. RAP 10.10.
FACTS Background
We derive the facts from trial evidence.
On the evening of December 23, 2004, 23-year-old Covarrubias attended a party at a Port Angeles motel. Also attending the party were 15-year-old Melissa Carter; her 21-year-old boyfriend, Travis Criswell; and her 15-year-old friend and roommate, Ashley Fruin. Most of the attendees consumed alcohol and marijuana, and some injected or ingested methamphetamine in the motel room bathroom.
During the party, Carter and Criswell argued. According to witnesses, Carter left the room. Criswell followed her and, after further argument near the motel manager's office, Carter hit Criswell. Dustin Lauridsen, another partygoer, told Carter and Criswell they had to stop arguing outside and suggested they leave.
Shortly thereafter, Carter left the motel on foot, and Criswell shouted that he never wanted to see her again. Covarrubias mentioned to Lauridsen that he would follow Carter and try to calm her down. Lauridsen said that Covarrubias caught up with Carter and that they "were kind of casually talking." Report of Proceedings (case number 35042-4-II) (RP) (Apr. 6, 2006) at 37. None of the partygoers or Carter's friends and family saw her alive again.
Later, Covarrubias said that Carter invited him into the motel room bathroom to smoke methamphetamine with her. In addition to the methamphetamine use, according to Covarrubias, she engaged in oral sex with him while in the bathroom. Finally, according to him, although they left the party separately, Carter eventually went to an abandoned house or "squat house" where he was living where they had sexual relations again. Clerk's Papers (CP) (case number 36212-1-II) at 179. He said that she left several hours later, early that morning, and that he never saw her again.
That same evening, Jon Sonnabend visited the Port Angeles waterfront trail between midnight and 3:00 a.m. He suffers from a schizo-affective disorder that he manages with medication. At trial, he and his treatment provider said that, although he occasionally suffers moderate auditory and visual hallucinations, he can distinguish hallucinations from reality. His treatment provider noted that during the relevant period he was alert and functioning well. While at the waterfront trail, Sonnabend consumed one beer and an energy drink.
Sonnabend testified that he saw Covarrubias and a teenage female on the waterfront trail sometime in the early hours of December 24. While sitting near the trail, he heard voices, stood up, and saw a man walking backward with his hands on the female's shoulders. He described the female as a "[y]oung teenager, middle to late teens" and testified that he got a good look at the man, Hispanic-looking and stocky, later identified as Covarrubias, who came within two feet of him. RP (Apr. 12, 2006) at 109-10.
About 15 minutes later, he heard the female come back down some nearby stairs. According to Sonnabend, "[s]he had walked across a little bit of grass and asked me if I had a cell phone she could borrow. I said no. Asked her again if she was okay, she said yeah. She didn't seem too worried." RP (Apr. 12, 2006) at 111. She continued down the steps away from Sonnabend and out of his sight. Shortly afterward, Sonnabend saw Covarrubias coming down the stairs. Not long after, Sonnabend heard a female's voice yell, "Just leave me the f___ alone." RP (Apr. 12, 2006) at 112. He ran to where he heard the voices, but he did not see anyone.
On December 26, three teenage boys were on the waterfront trail when they noticed Carter's body behind a tree. Her body lay naked and supine with her head down and arms outstretched.
According to Karen Green, a forensic scientist for the Washington State Patrol Crime Lab and a member of the Washington Crime Scene Response Team, Carter likely died at the scene. Green noted the difficult terrain around the body and wet, ripped, and muddy clothes near her body, including a pair of boxer shorts. The State also presented expert evidence suggesting that Carter had been manually strangled and that she had died of asphyxiation. Later, the crime lab identified Covarrubias's DNA (deoxyribonucleic acid) in semen found in Carter's throat.
During the initial interview at the police station after his arrest, Covarrubias denied any knowledge of events at the waterfront trail or that he had sex with Carter. At trial, he admitted lying to officers during the interview because he was concerned about the implications of having had sex with a minor.
At the time of his arrest, Covarrubias had injuries, including a cut on his finger and scratches on his knees. Although he claimed that he cut his finger while volunteering with the Salvation Army, the State presented evidence that he had not volunteered during the relevant period and the way he described cutting his finger would have been improbable.
The State charged Covarrubias with first degree murder. The information specified that the murder occurred in the course of second degree rape or attempted second degree rape.
Sonnabend contacted the police after seeing Covarrubias in a newspaper photograph. He identified Covarrubias as the man he saw at the waterfront trail. He then accompanied the police to the trail, described what he had seen, and even found the crumpled energy drink can he had left behind that night.
Although neither the police nor prosecutors showed him a photographic montage or asked him to view a lineup during the investigation, during trial Sonnabend indicated that he had again seen Covarrubias in another newspaper picture the previous week. According to Sonnabend, both newspaper photographs he had viewed showed only Covarrubias's profile.
During trial and outside the jury's presence, the court heard argument regarding the admissibility of Sonnabend's identification. The trial court found a sufficient independent origin for the identification and allowed Sonnabend to testify that Covarrubias was the man he saw that night on the waterfront trail.
Shortly before trial began, the State asked the court to inquire about possible conflicts of interest because Covarrubias's two attorneys, Ralph Anderson and Harry Gasnick, who worked in the Clallam County Public Defenders Office. Both attorneys had represented some of the witnesses in prior actions, and other attorneys in the Public Defender's Office had represented more than two dozen potential witnesses in prior actions. The State asked to have the case reassigned to different attorneys. Defense counsel argued that the State had made a tactical decision to burden defense counsel with extraneous work at the expense of trial preparation.
The trial court conducted several pretrial hearings on the possible conflicts of interest between Covarrubias's co-defense counsel and witnesses against their client. It also appointed Craig Ritchie, who did not work for the Public Defender's Office, as Covarrubias's independent counsel. The trial court ordered Ritchie to review all the information collected regarding potential conflicts of interest; to advise Covarrubias of his right to a conflict free attorney; and, if Covarrubias decided he wanted to keep his assigned co-counsel, review any potential written waiver of conflict with Covarrubias. The trial court also noted the significant delays that would accompany a change of counsel and referred to the need for balance between Covarrubias's rights to speedy trial and conflict-free counsel.
The trial court held a hearing addressing the conflict issues. It also engaged in a colloquy with Covarrubias. After this hearing, Covarrubias acknowledged his co-counsels' alleged conflicts of interest and signed a waiver relinquishing any objection based on the conflicts that might exist because his attorneys had formerly represented potential witnesses. Co-defense counsel Anderson and Gasnick continued to represent Covarrubias.
At another pretrial hearing, co-defense counsel raised concerns about missing pages in the discovery materials the State had provided. They also noted that they did not have the transcribed statements of a number of possible State witnesses, including a man named Cody Snow.
During trial, Snow testified that he was incarcerated near Covarrubias's jail cell and that Covarrubias had shared case materials with him and discussed his pending trial.
During jury selection and trial, Covarrubias moved to dismiss on several occasions. On March 30, 2006, the fourth day of trial, his counsel moved to dismiss because the State had taken too long to disclose statements Criswell made to the prosecution's victim-witness assistant. Apparently, Criswell said that he once thought he "would like to remove Ms. Carter from this world." RP (Mar. 30, 2006) at 7. Defense counsel also pointed to the late-submitted murder scene photographs, autopsy photographs, compact discs with information in an unreadable format, late endorsement of an expert witness, and receipt of "about 75 different items being sent off for analysis." RP (Mar. 30, 2006) at 18. The trial court denied Covarrubias's motions.
Defense counsel learned of this statement on March 30. Trial started on March 27.
On April 4, the sixth day of trial, Covarrubias moved to dismiss due to the State's failure to timely disclose allegedly exculpatory handwritten notes from the State's medical examiner, Dr. Daniel Selove. According to defense counsel, Selove's notes regarding his autopsy findings suggested no sign of injuries to Carter's neck, even though the State argued that she had died from strangulation. The trial court denied the motion, but it delayed Selove's testimony until Covarrubias's counsel and expert witness had time to review the additional materials.
Defense counsel pointed to late disclosed documents relied on or generated by the State's experts. According to counsel, much of this evidence was not referred to until cross-examination. Defense counsel concluded by saying:
Your Honor, this is just an incomprehensible amount of discovery and forensic testing that's being done mid-trial and I don't know how the defense can be expected to provide adequate representation, effective representation of somebody when the State's testing the evidence in the middle of the trial.
RP (Apr. 17, 2006) at 162. The trial court denied the motion to dismiss, finding the matters "non-consequential" and that any State mismanagement did not prejudice Covarrubias's defense preparation. RP (Apr. 17, 2006) at 173.
On April 19, Covarrubias again moved to dismiss when the State first produced Covarrubias's booking photographs. These had not previously been provided to defense counsel. They showed Covarrubias with a goatee. The State sought to present the photos taken near the time Carter's body was discovered to the jury to impeach Covarrubias's testimony that he could not grow facial hair. The trial court denied the motion and allowed the State's rebuttal evidence.
On the first day of trial, the State alerted the trial court and defense counsel that it planned to call additional witnesses, who were formerly represented by the Public Defender's Office. Again, the trial court gave Covarrubias the opportunity to meet with Ritchie, but after a discussion with the trial court, Covarrubias decided that he did not want to meet with Ritchie and again waived his objection to any conflicts. No one called these potential witnesses at trial.
The State had previously disclosed only one of the witnesses, but misspelled the name. The other potential rebuttal witnesses were newly disclosed.
At trial, two experts testified about Carter's injuries. Selove reviewed his autopsy report. He opined that, based on those findings, in addition to the location of her body and torn clothes around the scene, it was a "classical and typical" sexual assault. RP (Apr. 5, 2006) at 77. Later, the State's defense expert, Dr. Donald Reay, was asked whether "[y]ou would describe the scene as being one of classic homicide with sexual assault; is that correct?" RP (Apr. 18, 2006) at 126. Reay responded, "Yes. You have a nude body, remote area, sure." RP (Apr. 18, 2006) at 126. Defense counsel did not object to either statement. Covarrubias also testified at trial. He said that Carter initiated oral sex with him.
After the defense rested, the State sought to introduce the testimony of Carter's friends on the issue of consent. The State argued that Carter's friends, Fruin and Laura Oldfield, would testify that Carter considered oral sex degrading. It asserted that the evidence was admissible under the state of mind exception to the hearsay rule. The trial court agreed and allowed the testimony.
Fruin further testified that at the party, Covarrubias tried to flirt with Carter, who did not appear receptive to his advances.
The jury found Covarrubias guilty as charged. After trial, the State informed the trial court that it had failed to disclose fully the criminal histories of several witnesses. It failed to disclose a prior conviction of Edward Steward, who had testified about drinking and drug use at the party as well as his own methamphetamine use. The State also divulged Snow's previously undisclosed misdemeanor conviction. And after sentencing, the State admitted that it had overlooked Steward's arrest for a charge on which he was eventually exonerated.
Covarrubias moved for a new trial on a number of grounds. The trial court denied his motion and entered findings of fact and conclusions of law. The trial court found that the State's failure to disclose Steward's and Snow's convictions was not intentional and that defense counsel's lack of this information had "no likelihood of affecting the jury's verdict." CP (case number 36212-1-II) at 9. Also, the trial court found that many of the facts disclosed by the State just before or during trial were peripheral, that defense counsel "did not make a general discovery demand," and that none of the newly disclosed facts caused any trial delays. CP (case number 36212-1-II) at 10.
Covarrubias appeals.
ANALYSIS Waiver of Conflicts of Interest
Covarrubias first contends that his co-counsels' conflicts of interest prevented them from providing effective assistance of counsel. He argues that his acknowledgment and waiver of these alleged conflicts were invalid because Ritchie and the trial court misinformed him. See State v. Dhaliwal, 150 Wn.2d 559, 567, 79 P.3d 432 (2003) (stating that a defendant may waive a conflict of interest as long as the waiver is voluntary, knowing, and intelligent).
We review de novo whether a conflict of interest precludes continued representation of a client. State v. Ramos, 83 Wn. App. 622, 629, 922 P.2d 193 (1996). The Sixth Amendment right to counsel includes the right to conflict-free counsel. State v. Davis, 141 Wn.2d 798, 860-61, 10 P.3d 977 (2000). To establish a Sixth Amendment violation, a defendant who does not object at trial must demonstrate that an actual conflict of interest adversely affected his counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Dhaliwal, 150 Wn.2d at 570. We presume prejudice if the defendant makes this showing. Cuyler, 446 U.S. at 349-50.
Here, the trial court undertook an extensive inquiry, including several hearings and it also appointed independent counsel to represent Covarrubias. After a colloquy with the trial court, Covarrubias signed a detailed acknowledgment and waiver. The waiver form specifically explained (1) the Public Defender's Office involvement with each of the State's witnesses, (2) Gasnick's and Anderson's duty to protect any confidential information from prior representations, (3) the likelihood the appellate court would agree with the State's arguments pertaining to waiver of conflict of interest issues, and (4) that Covarrubias had spent adequate time with his independent counsel.
Covarrubias argues that he received incorrect information in various ways. First, he asserts that he received erroneous information due to Ritchie's lack of access to "all the public defender files or the information contained within those files." Appellant's Br. (case number 35042-4-II) at 86, RP (Mar. 22, 2006) at 12. Second, he asserts that the trial court gave him inaccurate information.
He also asserts that his counsel misunderstood whether juvenile adjudications were admissible for purposes of impeachment. It is difficult to discern how defense counsels' initial error in concluding that juvenile adjudications were not admissible for impeachment purposes has any bearing on whether Covarrubias's waiver was valid. Covarrubias merely points to this misunderstanding without explaining how it matters for purposes of the waiver's validity. We reject Covarrubias's implicit argument that, because counsel initially believed counsel could not impeach witnesses with juvenile adjudications, any discussions that he had regarding conflicts of interest with counsel were automatically suspect.
With respect to Ritchie's comments during the inquiry, we disagree with Covarrubias's assertion that Ritchie "advised [him] that there were no potential conflicts." Appellant's Br. (case number 35042-4-II) at 86. After spending several hours with Covarrubias, Ritchie described to the trial court his opinion regarding the potential for a less than vigorous cross-examination by Covarrubias's counsel. Ritchie said he believed there could also be an inherent advantage in having counsel with possible knowledge gained from past contacts with and representation of potential witnesses, as opposed to new counsel without those insights.
We also disagree with Covarrubias that Ritchie needed full access to confidential information to advise Covarrubias properly. Given the potential for conflict in this case, nothing shows that Ritchie could not estimate its extent without reviewing all possible records of confidential information pertaining to each prior representation. Covarrubias's assertions that the trial court made erroneous statements during the inquiry and before appointing Ritchie similarly fail to convince us.
Finally, Covarrubias argues that the trial court took defense counsels' statements as to the lack of a conflict at face value. The record shows otherwise. After the trial court reviewed Anderson's and Gasnick's prior representation of potential witnesses, it stated that there was "[n]o evidence that [they had] a divided loyalty so as to compromise their ability to fully and competently and adequately represent Mr. Covarrubias." RP (Mar. 16, 2006) at 45. Nevertheless, the court proceeded to appoint independent counsel, even after remarking about the apparent lack of any relevant confidential information obtained from the prior witnesses that would have a bearing on Covarrubias's case. The appointment of independent counsel is contrary to Covarrubias's assertions that the trial court merely took defense counsel's statements at face value during the inquiry.
In sum, Covarrubias's various arguments based on conflicts fail.
Evidentiary Rulings Witness Identification of Covarrubias
Covarrubias next argues that the trial court erred by allowing evidence of Sonnabend's identification of him both in court and out of court. Covarrubias contends that the admission of Sonnabend's out-of-court identification was a constitutional violation. Thus, he asserts he may challenge the identifications for the first time on appeal. RAP 2.5(a).
As a result, he further argues that our proper standard of review with respect to suspect identifications is de novo, as opposed to the abuse of discretion analysis Division Three employed in State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001).
We review de novo a claim regarding an impermissibly suggestive photographic identification procedure. State v. Rogers, 44 Wn. App. 510, 515, 722 P.2d 1349 (1986) (requiring an independent evaluation of identification evidence). In State v. Knight, 46 Wn. App. 57, 59, 729 P.2d 645 (1986), we held that the suggestive nature of a pretrial identification does not invalidate a later in court identification where the pretrial identification did not involve any State action. The State counters that Knight stands for the proposition that the due process clause does not apply when private citizens engage in pretrial photographic identification procedures. 46 Wn. App. at 59-60. In his reply brief, Covarrubias asks us to reexamine Knight.
We decline to revisit Knight, where we determined that the rule against impermissibly suggestive pretrial identifications was irrelevant when private citizens used their own methods of identification via photographs. 46 Wn. App. at 59. Here, Sonnabend first saw Covarrubias's profile photograph in the local newspaper and contacted police, and he saw another profile photograph in the newspaper a week before he was scheduled to testify. Neither instance involved any influence. As a result, Covarrubias's constitutional rights were not violated either by Sonnabend's in-court or out-of-court identifications.
Because we reject Covarrubias's constitutional argument, we review his claim for an abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1996). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007).
Here, the trial court did not abuse that broad discretion. After a hearing and witness interviews, which included the trial court's questioning of Sonnabend, it found a sufficient independent basis for Sonnabend's testimony. Sonnabend stated that Covarrubias passed within two feet of him on December 24, 2004, that he briefly interacted with Carter, and that he was certain Covarrubias was the man he saw that night. The trial court based its decision on tenable grounds and Covarrubias's argument fails.
Expert Testimony
For the first time on appeal, Covarrubias claims that expert testimony invaded the jury's province and denied him the constitutional right to a jury trial. He asserts that Drs. Selove's and Reay's statements about the crime scene should not have been admitted.
Defense counsel did not object to either expert's statement that the scene disclosed a typical homicide with sexual assault. RAP 2.5.
Although Covarrubias maintains that "the two doctors' testimony amounted to a direct and explicit opinion that Ms. Carter was raped and killed by Mr. Covarrubias," nothing in the record reasonably suggests such a reading. Appellant's Br. (case number 35042-4-II) at 55. In both instances, the experts merely characterized the scene as that of a sexual assault and homicide, and neither opined that Covarrubias was the guilty party.
State of Mind Hearsay Exception
Covarrubias further contends that the trial court erred by allowing Fruin and Oldfield to testify in rebuttal about Carter's statements relating to her aversion to oral sex. Covarrubias asserts that this testimony should have been excluded because the trial court did not make an explicit finding of either necessity or trustworthy circumstances under ER 803(a)(3). Additionally, according to Covarrubias, Carter's feelings about oral sex were not relevant and the danger of their prejudicial effect outweighed any probative value under ER 403.
Covarrubias briefly comments that the trial court should have excluded the testimony as inadmissible action in conformity with character, habit, or reputation evidence. See ER 404, 405, 406. But the trial court did not admit the evidence under these rules and, therefore, we do not address Covarrubias's brief argument on this point.
We review the trial court's admission of evidence for abuse of discretion. Pirtle, 127 Wn.2d at 648. Here, the trial court found the evidence relevant because it addressed a "material issue in the case, . . . the issue of consent." RP (Apr. 20, 2006) at 8. It stated that in reviewing case law, state of mind evidence was more likely to be allowed "when the declarant expresses what she believes about herself [and] not what she believes about someone else." RP (Apr. 20, 2006) at 9. Further, with respect to the trustworthiness concern and according to its reading of State v. Parr, 93 Wn.2d 95, 606 P.2d 263 (1980), the trial court stated that "it's really up to the Jury to make that [trustworthiness] determination whether there's any bias by the person who's giving the testimony." RP (Apr. 20, 2006) at 9.
The trial court also admitted Carter's statement regarding oral sex to impeach Carter's hearsay statements reasoning that "if Melissa Carter was here to testify . . . she'd be subject to a prior question of prior statement — in other words an impeaching or contradicting statement — that she's had oral sex."). RP (Apr. 20, 2006) at 11. Relevant evidence means "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." ER 401. In light of Covarrubias's testimony, Carter's hearsay statements were relevant because they tended to cast doubt on Covarrubias's testimony that Carter consented to his request for oral sex.
Covarrubias also argues that a state of mind hearsay exception requires that a court "must find (1) some degree of necessity to use the statement and (2) circumstantial probability that the statement is trustworthy." Appellant's Reply Br. (case number 35042-4-II) at 19; State v. Haack, 88 Wn. App. 423, 439-40, 958 P.2d 1001 (1997). Even assuming, without so finding, error in the absence of specific findings on the "degree of necessity," we may affirm a trial court on any correct ground. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986).
The record supports the necessity of the evidence in addition to circumstantial probability that the statements were trustworthy. Some degree of necessity is clear in light of Covarrubias's testimony that Carter initiated their sexual encounter and the fact that her death rendered her unable to refute that testimony. Additionally, Fruin and Oldfield both were Carter's friends and, given their close relationship with her, the trial court could reasonably find probability of Page 16 trustworthiness in their statements.
Finally, defense counsel did not object to the testimony on the basis of ER 403, and we consider an objection that the evidence was unduly prejudicial waived. See RAP 2.5(a); see also State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000). Furthermore, we agree with the trial court that Fruin's and Oldfield's testimony is clearly probative. Thus, the trial court did not abuse its discretion and Covarrubias's argument fails.
Late Disclosure Motions and Motions for a New Trial
Covarrubias next contends that the trial court erred when it denied his motions for a new trial based on the State's late disclosures. A trial court may grant a criminal defendant a new trial "when it affirmatively appears that a substantial right of the defendant was materially affected." CrR 7.5(a). We review the denial of a motion for a new trial under an abuse of discretion standard. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000).
Covarrubias's self-described "main argument on appeal" addresses the trial court's denial of his requests for a new trial under CrR 7.5(a)(1)-(8). He makes a secondary argument that the trial court should have dismissed the action for prosecutorial misconduct under CrR 8.3(b). He contends that the State seeks to apply the standard used in reviewing motions to dismiss the charges against him for prosecutorial mismanagement under CrR 8.3(b).
Our analysis of the trial court's denial of the two types of motions is not identical. In particular, dismissal of charges is an extraordinary remedy and a trial court should grant a motion to dismiss only when defendant's rights were so prejudiced that a new trial cannot resolve the errors. State v. Laureano, 101 Wn.2d 745, 762-63, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988).
Although we hold that the cumulative effect of discovery errors warrants a new trial, we decline to hold that the trial court should have dismissed the action outright. State v. Smith, 67 Wn. App. 847, 852, 841 P.2d 65 (1992); see also State v. Woods, 143 Wn.2d 561, 583, 23 P.3d 1046 (2001) (stating that before dismissal is warranted, defendant must show that delay in disclosure "compelled [him] to choose between two distinct rights'). The cumulative effect of the State's late disclosures created the reversible error; a new trial can remedy this.
CrR 4.7 sets out the parties' obligations regarding discovery in a criminal trial. As explained in State v. Copeland, 89 Wn. App. 492, 497, 949 P.2d 458 (1998):
It is the long settled policy in this state to construe the rules of criminal discovery liberally in order to serve the purposes underlying CrR 4.7, which are "to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process. . ." . To accomplish these goals, it is necessary that the prosecutor resolve doubts regarding disclosure in favor of sharing the evidence with the defense.
(quoting State v. Dunivin, 65 Wn. App. 728, 733, 829 P.2d 799 (1992)).
For discovery violations, it is appropriate for a trial court to grant a motion for mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will receive a fair trial. Greiff, 141 Wn.2d at 920-21. We will overturn a trial court's denial of a motion for mistrial only when there is a substantial likelihood that the prejudice affected the jury's verdict. Greiff, 141 Wn.2d at 921.
In determining whether the effect of a trial irregularity affected the trial's outcome, we examine "(1) the seriousness of the irregularity, (2) whether it involved cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard it." Greiff, 141 Wn.2d at 921. Moreover, to satisfy due process requirements, the State must follow prevailing fundamental fairness notions to allow the defendant the opportunity to present a complete defense. Greiff, 141 Wn.2d at 920; see U.S. Const. amend. XIV; Wa. Const. art. I, § 3. The State's violation of a discovery rule may deny due process. Greiff, 141 Wn.2d at 920.
Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors, even though individually not reversible errors, cumulatively produced a trial that was fundamentally unfair. Greiff, 141 Wn.2d at 929; State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984) ("The accumulated evidentiary errors committed by the trial court necessitate a new trial, as do the violations of our discovery rules by the prosecuting attorney."); State v. Alexander, 64 Wn. App. 147, 158, 822 P.2d 1250 (1992) (reversing and remanding for new trial due to cumulative error). The defendant bears the burden of demonstrating that an accumulation of errors would make a retrial necessary. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, 870 P.2d 964 (1994).
We hold that the trial court errors here, including its failure to grant Covarrubias's motion for a new trial, as well as its rulings on individual discovery disputes during trial, resulted in cumulative error and warrant reversal.
Trial began March 27. We list chronologically the State's late evidence disclosures between March and July 2006, i.e., the immediate pretrial period through sentencing:
Trial began on March 27 and ended on April 20. The trial court heard the posttrial motion for a new trial on October 26 and November 16.
Covarrubias also challenges other pre-March disclosures, asserting that as of February 23, 2006, defense counsel had not received a statement from Sonnabend's friend that he was "`acting funny.'" Appellant's Br. (case number 36212-1-II) at 8. Because we determine that the cumulative effect of the disclosures in the March-July trial period prejudiced Covarrubias, we do not discuss issues related to earlier discovery.
1. Crime scene and autopsy photographs, disclosed on March 15, 12 days before trial;
2. Police witness interviews not produced as of trial;
3. An expert's endorsement on crime scenes, disclosed during the first week of trial;
4. Lab reports from approximately 75 items, received by the defense in the three weeks leading up to trial;
5. A fingerprint report from the "squat house," disclosed on March 31, the end of the first week of trial;
6. Criswell's statement to the prosecutor's victim-witness assistant that he wanted to "remove Carter from this world," disclosed on or around March 29, two days after the start of trial;
7. Criswell's statements to police repeatedly denying that he had sexual relations with Carter omitted from pretrial statement summaries provided to defense;
8. Sonnabend's mental health counselor's proposed testimony, disclosed March 30, the third day of trial;
9. Selove's autopsy photographs, disclosed March 30, three days after the start of trial;
10. Selove's autopsy notes, including an observation of the presence of gastric semen, disclosed April 4;
11. Selove's autopsy notes, including an observation of no neck injury and that the body may have been dragged on asphalt, disclosed April 4;
12. Photographs of the "squat house," disclosed April 10;
13. Lab technician James Tarver's testimony from notes not provided to the defense before he testified on April 10;
14. A report from a laboratory technician that a recent urinalysis showed alcohol in Carter's system, which contradicted a previously-provided earlier blood test showing no alcohol, disclosed on April 12;
15. A crime lab analyst's testimony using notes not provided to defense that he found Covarrubias's DNA on Carter's oral swab, that he discovered an unidentified brown hair on Carter's body on April 13, and that no DNA testing was done on the hair, disclosed April 17;
The technician testified he was asked to examine the hair in mid March, a few weeks before he testified, but did not testify about the specific tests he conducted or the results. He stated the report was still "under peer review" when he testified. RP (Apr. 13, 2006) at 202. Nothing in the record discloses whether it would have been inculpatory or exculpatory.
The technician testified he was asked to examine the hair in mid March, a few weeks before he testified, but did not testify about the specific tests he conducted or the results. He stated the report was still "under peer review" when he testified. RP (Apr. 13, 2006) at 202. Nothing in the record discloses whether it would have been inculpatory or exculpatory.
16. Various posttrial disclosures, in June and July, related to prior crimes of witnesses Snow and Steward.
The trial court may have responded reasonably to these disclosures as they occurred, for example, delaying Selove's trial testimony by a day to account for information contained in his previously undisclosed notes and finding that some late disclosures were "non-consequential." But the overall impact of the State's pattern of delayed disclosures impaired Covarrubias's ability both to prepare for trial and to receive a fair trial. The trial court based its decision not to grant a new trial on untenable grounds. In order of importance, some of the following late State's disclosures are particularly relevant to Covarrubias's guilt or innocence: (1) Criswell's statement about wanting to remove Carter from the world, (2) Selove's autopsy notes indicating no neck injury and that the body had been dragged on asphalt, (3) the lab technician's testimony that he had found a hair on Carter's body and had tested it only weeks before he testified, and (4) the State's disclosure that it had not done DNA testing on the hair.
The trial court also concluded that certain other disclosures did not fall within discovery parameters set out in CrR 4.7, e.g., booking photograph showing goatee facial hair were relevant only after defense introduced testimony regarding Covarrubias's inability to grow facial hair.
We note that during the trial the court also had to respond to multiple motions resulting from the late disclosures.
Criswell's statement about Carter goes directly to the defense theory of the case that another acquaintance of Carter, other than Covarrubias, committed the crime. CrR 4.7(a)(1)(i) (requiring State to produce oral statements of witnesses); CrR 4.7(a)(3) (addressing statements as to guilt). For example, defense counsel, even before they knew of this statement, sought to admit "other suspect" evidence targeting Criswell and, before they learned of Criswell's statement, other potential killers. CP (case number 36212-1-II) at 7. The trial court originally denied this request but the strength of this statement appears to have caused it to reconsider the issue.
Selove's notes, which observed no neck injury and that the body may have been dragged on asphalt, undercut the State's theory that Covarrubias and Carter got into a fight on the waterfront path and that Covarrubias killed her there by strangulation and, specifically Green's testimony that Carter was killed in the area where her body was discovered; they also undercut Selove's own testimony that Carter was strangled. CrR 4.7(a)(1)(i) (covering witness statements); CrR 4.7(a)(1)(iv) (addressing the experts' statements); CrR 4.7(a)(2)(ii) (covering substance of expert testimony at trial and reports submitted to State). Additionally, defense counsel's statement, "one of the big issues in this case is going to be whether [Carter] was killed at the scene or not," and Selove's testimony that crime scene on waterfront trail showed a typical sexual assault and strangulation demonstrates the importance of the information in Selove's notes and the importance of timely disclosure to the defense. RP (Mar. 30, 2006) at 41.
The State did not disclose Selove's notes until after the State's witness, Green, testified during trial that Carter was killed where her body was discovered.
The testimony and report regarding the hair found on Carter's body also goes to "other suspect" evidence. CrR 4.7(a)(1)(i) (witness statements); CrR 4.7(a)(1)(iv) (addressing statements of experts); CrR 4.7(a)(2)(ii) (substance of expert testimony at trial and reports submitted to State). Had defense counsel received the State's test results with sufficient time to challenge or supplement them by conducting their own analysis of the hair, they may have been able to use it in support of their "other suspect" theory, especially in light of the State's failure to test the hair.
Defense counsels' repeated arguments underscore that the individual disclosures and the cumulative impact of the delayed State disclosures prejudiced Covarrubias. For example, defense counsel argued:
1. "I have gotten more discovery in this case than any murder case I have ever tried after the trial date has started," RP (Mar. 30, 2006) at 8;
2. "[W]e're fighting a losing battle to stay up with this," RP (Mar. 30, 2006) at 10;
3. "[T]his is just an incomprehensible amount of discovery and forensic testing that's being done mid-trial and I don't know how the defense can be expected to provide adequate representation," RP (Apr. 17, 2006) at 162;
4. "We don't have an opportunity to examine [the evidence] with any great detail," RP (Apr. 17, 2006) at 167;
5. "Ever[y] hour that I have to run around figuring out in the middle of a trial [issues related to disclosures] . . . is an hour that detracts from preparation from more properly utilized preparation time for a man accused of murder," RP (Apr. 17, 2006) at 170.
In sum, at least three of the State's numerous late disclosures went directly to its strategy or to Covarrubias's theory of the case. Even assuming that in isolation each delayed disclosure did not warrant a new trial, when considered together, we conclude there is a substantial likelihood that the prejudice caused by the late disclosures affected the jury's verdict. Greiff, 141 Wn.2d at 921; Copeland, 89 Wn. App. at 498-99 (finding State's failure to disclose criminal record of complaining witness prejudiced defendant). The remedy is to reverse and remand for a new trial.
Sufficiency of the Evidence
We address this issue because if we were to reverse for insufficient evidence, retrial would be prohibited and the remedy would be dismissal with prejudice. State v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998).
Covarrubias further contends that the State presented insufficient evidence to prove first degree murder beyond a reasonable doubt. He contends that the State failed to prove that he caused Carter's death; that he raped her by forcible compulsion; or that her death occurred in the course of, in furtherance of, or in immediate flight from any such rape. He points to a lack of direct evidence that connects him to these charges.
A person is guilty of first degree murder when that person commits rape in the first or second degree and "in the course of or in furtherance of such crime or in immediate flight therefrom, [the person] . . . causes the death of [the victim]." RCW 9A.32.030(1)(c).
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational fact finder could have found guilt beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A claim of insufficiency admits the truth of the State's evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When examining the sufficiency of evidence, we draw all reasonable inferences in favor of the State and interpret those inferences most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). We do not review credibility determinations, conflicting testimony, and the persuasiveness of evidence, as those are issues for the fact finder. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). And we treat circumstantial evidence and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Viewed in the light most favorable to the State, the evidence supports reversal rather than dismissal of Covarrubias's conviction. The State presented evidence of a nude body surrounded by torn clothing at the remote crime scene, as well as the opinions of Drs. Selove and Reay that the scene represented a typical sexual assault scenario. Selove testified that Carter died of manual strangulation and that her wounds were consistent with a struggle. Additionally, tests revealed Covarrubias's semen in Carter's throat, Sonnabend testified to seeing Covarrubias and a female resembling Carter together on the waterfront trail the night Carter was last seen alive, and Carter's best friends raised significant doubt about whether any oral sex between Covarrubias and Carter could have been consensual.
In sum, a rational fact finder could find Covarrubias guilty beyond a reasonable doubt of first degree murder with the predicate felony of rape in the second degree. His insufficiency of the evidence argument fails and dismissal is not appropriate.
Reversed and remanded for new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT and PENOYAR, JJ., concur.