Summary
In Murry, the State charged Roy Murry with attempted first degree murder in connection with multiple counts of aggravated first degree murder and first degree arson.
Summary of this case from State v. CanelaOpinion
No. 35035-5-III
06-04-2020
STATE of Washington, Respondent, v. Roy H. MURRY, Appellant.
Dennis W. Morgan, Attorney at Law, Po Box 1019, Republic, WA, 99166-1019, for Appellant. Larry D. Steinmetz, County Prosecuting Attorney's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
Dennis W. Morgan, Attorney at Law, Po Box 1019, Republic, WA, 99166-1019, for Appellant.
Larry D. Steinmetz, County Prosecuting Attorney's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.
OPINION PUBLISHED IN PART
Korsmo, J. ¶ 1 Roy Murry appeals from convictions for three counts of aggravated first degree murder, one count of attempted first degree murder, and one count of first degree arson. Due to an admitted defect in the charging document, we reverse the attempted murder conviction without prejudice. Because the evidence of identity was sufficient, and because the trial court did not abuse its considerable discretion in resolving evidentiary challenges, we affirm the remaining convictions.
¶ 2 In the published portion of this opinion, we address Murry's Frye challenge and the inadequacy of the attempted murder charging language.
Frye v. United States , 293 F. 1013, 1014 (D.C. Cir. 1923).
FACTUAL BACKROUND
¶ 3 Although extensive evidence was admitted during the lengthy trial, the nature of the appellate challenges counsels we leave more detailed discussion of the voluminous facts to the appropriate argument. Accordingly, there need only be a generalized discussion of the factual background of this case.
¶ 4 Murry, who lived in Lewiston, Idaho, was estranged from his wife, Amanda Constable. She worked in Spokane as a nurse and lived with her mother and stepfather, Lisa and Terry Canfield, at their Colbert-area residence. Also residing there was her brother, John Constable. Amanda Constable was contemplating a divorce. ¶ 5 On the night of May 25, 2015, Memorial Day, Amanda Constable worked her standard shift at a Spokane hospital and was expected to return home around 12:00 to 12:15 a.m. on May 26. A co-worker called in ill and Amanda Constable had to work until 3:38 a.m. to cover. When she finally reached the family home, she discovered that law enforcement had responded to a crime scene.
Constable used the name Murry prior to the dissolution of the couple's marriage.
¶ 6 The Canfields and John Constable had been murdered. Each had been shot multiple times and their bodies set on fire. Both the house and an outbuilding where Terry Canfield's body was found were burned. The subsequent investigation determined that both gasoline and barbecue lighter fluid had been used as accelerants in multiple areas of the house. Investigators did not identify the ignition sources, but several possible fire starters were located.
In each instance, the cause of death was attributed to the gunshot wounds.
¶ 7 Burglary and theft were ruled out as motives for the crime since the only item missing from the scene was a .38 caliber revolver taken from Amanda's bedroom; the weapon had been a gift from Murry. $3,000 in cash was left undisturbed in the same room and other valuables in the house were not taken. Suspicion almost immediately fell on Murry.
¶ 8 Detectives twice interviewed him within four days of the killings. He claimed to have been camping with friends along the Snake River, but declined to name his companions. Extensive efforts ensued to verify the alibi, but no corroborating evidence was located.
¶ 9 Prosecutors filed the noted charges and a lengthy jury trial ensued in the Spokane County Superior Court. The identity of the killer was the primary contested issue at trial. Due to the circumstantial nature of the case, numerous witnesses were called to testify about Mr. Murry's habits, his behavior leading up to the killings, and his motive. That testimony is discussed later as necessary.
¶ 10 The jury found Mr. Murry guilty on the five noted charges and the court imposed the mandatory sentence of life in prison on the three aggravated first degree murder convictions. Mr. Murry timely appealed to this court. A panel heard oral argument of the case.
ANALYSIS
¶ 11 The published portion of this case addresses two issues. We first consider what is the relevant scientific community for purposes of a Frye analysis. We then turn to the adequacy of the attempted first degree murder charging language. Frye Community
¶ 12 We conclude that the relevant scientific community is not the "criminal forensics community," but, is instead the community of experts who are familiar with the use of the technique in question.
Mr. Murry's related issues concerning the nanoparticle testimony largely derive from his belief that the trial court erred in its analysis of the Frye community and will not be separately addressed. To the extent that he also challenges the use of the Transmission Electron Microscope under Frye , we consider the challenge foreclosed by the holding of State v. Noltie , 116 Wash.2d 831, 850-51, 809 P.2d 190 (1991), that there is nothing novel about using a magnifying glass to enhance vision.
¶ 13 This issue arises from the discovery of strangely shaped nanoparticles on some of the shell casings recovered from the crime scene. William Schneck, a forensic scientist from the Washington State Patrol Crime Laboratory, used a Scanning Electron Microscope (SEM) to examine the casings. The SEM is the most powerful microscope at the lab. He believed the particle might be AccuDure, a firearms lubricant, but his opinion was inconclusive. He therefore sent the samples to MVA Scientific Consultants, a private laboratory in Georgia. Richard Brown of MVA used a Transmission Electron Microscope (TEM) and concluded that the samples were unique, synthetic silicon-based nanoparticles that were consistent with the distinctive component of AccuDure. ¶ 14 Washington uses the test of Frye v. United States , 293 F. 1013, 1014 (D.C. Cir. 1923) to limit expert testimony to principles generally accepted in the scientific community. State v. Copeland , 130 Wash.2d 244, 255, 922 P.2d 1304 (1996) ; State v. Canaday , 90 Wash.2d 808, 812, 585 P.2d 1185 (1978). The reviewing court considers the issue de novo and is expected to conduct a searching review that may include scientific materials developed after trial. Copeland , 130 Wash.2d at 255-56, 922 P.2d 1304. If the scientific principle satisfies Frye , the trial court applies ER 702 in determining whether to admit the individual expert's testimony. In re Det. of Pettis , 188 Wash. App. 198, 204-05, 352 P.3d 841 (2015).
Murry was the only known user of the lubricant and the evidence figured prominently in establishing the identity of the killer.
¶ 15 A witness may qualify as an expert by knowledge, skill, experience, training, or education. ER 702. After an expert's qualifications are established, any deficiencies in the expert's knowledge goes to the evidentiary weight of the testimony. Keegan v. Grant County Pub. Util. Dist. No. 2 , 34 Wash. App. 274, 283, 661 P.2d 146 (1983). This court reviews the trial court's decision to admit expert witness testimony for abuse of discretion. Pettis , 188 Wash. App. at 205, 352 P.3d 841. Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker , 79 Wash.2d 12, 26, 482 P.2d 775 (1971).
¶ 16 A Frye hearing was conducted prior to trial. Mr. Murry alleged that the TEM was not used in the "criminal forensics community" and that, accordingly, Frye precluded consideration of TEM evidence in Washington. Mr. Murry had an expert listen to the Frye hearing testimony, but, ultimately, he did not present any evidence or testimony at the hearing. The State presented testimony from Brown, Schneck, and the developer of AccuDure, Pavlo Rudenko, Ph.D. Dr. Rudenko used both a SEM and a TEM while developing AccuDure and also hypothesized that he would use a TEM in order to protect his patent should the need arise. He testified that differences between lubricants are discernable under a microscope.
¶ 17 Mr. Brown, who had used the TEM for 35 years, testified to the history of TEM, a microscope developed during the 1940s that became useful in forensic work in the 1980s due to its ability to distinguish asbestos fibers. He explained that due to the high resolution offered by TEM, it is the most common tool for examining nanoparticles. In addition to forensics, TEM commonly is used by medical device manufacturers and also by the Center for Disease Control to identify viruses. ¶ 18 Brown explained that TEM is the most powerful microscope for purposes of magnification and resolution. The difference between SEM and TEM is the difference between looking at the surface level of a particle (SEM) or at the atomic level (TEM). Brown also explained that there was no debate in the scientific community concerning use of TEM.
¶ 19 The trial court rejected the defense effort to classify the relevant scientific community for Frye purposes as the criminal forensic community. Concluding that the more general scientific community was appropriate, the court ruled that the testimony about the AccuDure nanoparticles was admissible.
¶ 20 In this court, Mr. Murry reprises his challenge to the trial court's determination of the relevant scientific community for the Frye assessment. One enduring criticism of Frye has been the court's failure to define the scientific community by which to judge the acceptance of novel scientific methods. DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY § 1.5, at 9 (2005-2006 ed.). This problem becomes complicated because various overlapping scientific disciplines use the same information and techniques. Id . ¶ 21 Washington courts have not squarely addressed this issue. A commonly cited answer to this challenge was provided by the Massachusetts Supreme Court: "the requirement of the Frye rule of general acceptability is satisfied, in our opinion, if the principle is generally accepted by those who would be expected to be familiar with its use." Commonwealth v. Lykus , 367 Mass. 191, 203, 327 N.E.2d 671 (1975). ¶ 22 We believe the Lykus standard is consistent with the actual application of Frye by the Washington Supreme Court. The mechanics of child birth injuries were at issue in a recent medical malpractice case. L.M. v. Hamilton , 193 Wash.2d 113, 135, 436 P.3d 803 (2019). In addition to hearing from the obstetrics community, the court permitted the testimony of a biomechanical engineer despite his lack of expertise with the biomechanics of childbirth. Id . at 138, 436 P.3d 803. In the seminal criminal cases that paved the way for use of DNA evidence at trial, the court looked at evidence from experts in multiple disciplines. In the case involving statistical DNA analysis, the court heard from forensic scientists, a university genetics professor, a university genetics researcher, and a university statistics professor. State v. Kalakosky , 121 Wash.2d 525, 542, 852 P.2d 1064 (1993). In the case involving DNA typing, the court heard from a large number of university researchers, geneticists, biochemists, and a statistician, in addition to forensic scientists. State v. Cauthron , 120 Wash.2d 879, 884, 846 P.2d 502 (1993).
The Washington Supreme Court acknowledged: "When determining whether a witness is an expert, courts should look beyond academic credentials. For example, depending on the circumstance, a nonphysician might be qualified to testify in a medical malpractice action. The line between chemistry, biology, and medicine is too indefinite to admit of a practicable separation of topics and witnesses." L.M. v. Hamilton , 193 Wash.2d 113, 135, 436 P.3d 803 (2019) (citation omitted) (internal quotation marks omitted).
¶ 23 In none of these cases did the experts belong solely to the civil or criminal forensics community. Mr. Murry has not identified a single Frye case where our courts have excluded expert testimony from outside the forensic community. Limiting testimony solely to those who use the science or equipment, instead of those also familiar with the principle, unduly narrows the field to those who favor the science in question. It also discourages innovation by excluding the opinions of cutting-edge researchers who may be demonstrating the utility of a new principle or a device.
¶ 24 The Massachusetts standard is consistent with the Washington practice and we adopt it. Accordingly, we hold that scientists familiar with the use of the scientific principle in question constitute the relevant scientific community for purposes of a Frye analysis.
¶ 25 Here, the trial court heard from scientists familiar with the examination of nanoparticles and properly based its ruling on their testimony. The trial court did not err in determining that examination of nanoparticles by a Transmission Electron Microscope was accepted in the scientific community familiar with the technology. Accordingly, its ruling is affirmed.
Charging Document Sufficiency
¶ 26 Mr. Murry next argues that the attempted murder count was inadequately charged. Precedent agrees with that argument and we reverse the attempted murder conviction without prejudice to refiling.
¶ 27 A defendant has the constitutional right to be informed of the charges against him. State v. Vangerpen , 125 Wash.2d 782, 787, 888 P.2d 1177 (1995). This requires that the charging document include each essential element of the charged offense; merely citing to the appropriate statute is insufficient. Id. The rationale for this rule is that the defendant must be informed of the allegations so he or she can properly prepare a defense. State v. Simon , 120 Wash.2d 196, 198, 840 P.2d 172 (1992). Further, the statutory manner or means of committing a crime is an element that the State must include in the information. State v. Bray , 52 Wash. App. 30, 34, 756 P.2d 1332 (1988). When a charging document fails to state a crime, the remedy is to dismiss the charge without prejudice to the State's refiling of a correct charge. Vangerpen , 125 Wash.2d at 792-93, 888 P.2d 1177.
¶ 28 Mr. Murry argues that the charging document erroneously omitted the element of premeditation. Despite the fact that premeditation actually is not an element of attempted first degree murder, he is correct. Vangerpen is dispositive. ¶ 29 In that case, the original charging document alleged that the defendant, with the intent to kill, attempted to do so. At the close of the prosecution's case, the defense moved to dismiss for failure to state a crime. The State agreed that the original document charged only attempted second degree murder since the element of premeditation was missing. Id . at 785, 888 P.2d 1177. In its subsequent review, the Washington Supreme Court agreed that the charging document was defective and expressly stated that premeditation was an element of attempted first degree murder for charging purposes. Id . at 791, 888 P.2d 1177.
State v. Boswell , 185 Wash. App. 321, 335-36, 340 P.3d 971 (2014) (elements are specific intent to commit first degree murder and taking a substantial step toward committing the crime); State v. Reed , 150 Wash. App. 761, 772-73, 208 P.3d 1274 (2009).
The trial court had granted the prosecution's motion to amend the information after the State had rested to add premeditation. Vangerpen , 125 Wash.2d at 785-86, 888 P.2d 1177.
Although the charging document is not discussed in the Supreme Court's version of Vangerpen , it is set forth in the Court of Appeals opinion. See State v. Vangerpen , 71 Wash. App. 94, 97 n.1, 856 P.2d 1106 (1993).
¶ 30 It is possible to distinguish Vangerpen , as the prosecutor urges we do, on the basis that the information filed in Vangerpen was improper due to failure to recite the statutory elements of the crime, while the information in this case correctly recited those elements. See State v. Boswell , 185 Wash. App. 321, 335-36, 340 P.3d 971 (2014) (elements are specific intent to commit first degree murder and taking a substantial step toward committing the crime). We decline to do so for two reasons.
¶ 31 First, the rulings of the Washington Supreme Court are binding on this court. State v. Gore , 101 Wash.2d 481, 486-87, 681 P.2d 227 (1984). Even if possible to distinguish the Vangerpen pronouncement, we have declined to do so in the past. E.g. , State v. Mellgren , No. 35312-5-III, 2018 WL 6522225 (Wash. Ct. App. Dec. 11, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/353125_unp.pdf. Similarly, Division Two of this court has recognized the Vangerpen pronouncement as requiring the element of premeditation in a charging document. Boswell , 185 Wash. App. at 335-36, 340 P.3d 971 (declining to extend Vangerpen to jury instructions).
¶ 32 Secondly, leaving premeditation out of an attempted first degree murder charging document would create an additional problem. First degree murder can be committed in three ways: (1) premeditated intentional murder, (2) extreme indifference, and (3) felony murder. RCW 9A.32.030(1)(a)-(c). However, it is impossible to attempt murder by extreme indifference or felony murder because neither offense requires proof of intent to kill. State v. Dunbar , 117 Wash.2d 587, 817 P.2d 1360 (1991) (extreme indifference); State v. Wanrow , 91 Wash.2d 301, 311, 588 P.2d 1320 (1978) (intent to kill not an element of felony murder). Thus, a charging document that merely states that a defendant took a substantial step toward committing first degree murder would fail to state a crime unless premeditated murder was identified as the basis for the charge.
¶ 33 Since only attempted premeditated murder can constitute attempted first degree murder, the charging document must, in some manner, identify the premeditation element lest it commit the same error as in Vangerpen . Accordingly, although the charging document used in this case adequately conveyed the elements of the offense, it still failed to state a crime. For that reason, we reverse the conviction for attempted first degree murder without prejudice and remand for further proceedings. Vangerpen , 125 Wash.2d at 792-93, 888 P.2d 1177.
¶ 34 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Siddoway, J.
Pennell, C.J.