State v. Braa

410 P.3d 1176

STATE of Washington, Respondent,

v.Kevin Jory BRAA, Appellant.

No. 75903-5-I

Court of Appeals of Washington, Division 1.

FILED: February 12, 2018

David Bruce Koch, Eric J. Nielsen, Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.

Seth Aaron Fine, Attorney at Law, J Scott Halloran, Snohomish Co. Prosecuting Atty.-Criminal, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent.

PUBLISHED OPINION

Dwyer, J.

¶1 Kevin Braa appeals from the superior court's order denying his postconviction motion to conduct a DNA (deoxyribonucleic acid) test of evidence in his case. Braa contends that the superior court erred by reasoning that such testing is not available in self-defense cases because a favorable test result would not identify a different person as the perpetrator of the crime. Braa also contends that the superior court erred by denying his motion on the ground that he did not show that a favorable DNA test result would, on a more probable than not basis, establish his innocence.

¶2 We conclude that the superior court erred by ruling that, in effect, postconviction DNA testing is not available in self-defense cases. However, we also conclude that the superior court did not err by ruling that a favorable DNA test result would not, on a more probable than not basis, establish Braa's innocence.

¶3 Accordingly, we affirm the superior court's decision to deny the requested testing.

I

¶4 The circumstances of Braa's crime of conviction are set forth in an unpublished opinion, State v. Braa, noted at 150 Wash.App. 1035, 2009 WL 1591369, as follows:

On the evening of November 11, 2006, Kevin Braa was sitting at the bar reading a book in Kuhnle's Tavern in Marysville. Simeon Whitney was there playing pool with his brother, Roger Enick, and a friend, Kenny Celestine. Whitney, Enick, and Celestine are Native American and went to Kuhnle's Tavern because it is a hangout for Native Americans.

Enick and another bar patron argued over a game of pool, and the other patron used racial slurs about Native Americans. At some point, Braa went over to the pool table and made offensive comments toward Enick. Whitney pushed Braa out of the way and told him, "Leave my homeboy alone." Braa told Whitney, "Go back to Mexico where you belong. You're a sub-human." When the bartender heard this, she told Braa that he would be asked to leave if he continued to talk that way. Braa did not comply, so she escorted him to the back door. A minute or two later, Whitney went out through the same door.

A fight ensued between Whitney and Braa outside behind Kuhnle's Tavern. Witnesses saw Whitney repeatedly punch Braa and pull Braa's shirt up over his head. After the fight, Whitney started toward the back door of Kuhnle's, and Braa went over to his truck. Braa fired four to six shots at or toward the back door. Some witnesses saw Braa standing by his truck with the door open and his arm extended as he fired. Whitney staggered through the back door and collapsed by the bathrooms. When the bartender heard the gunshots and saw Whitney on the floor, she ducked down and called 911. Two witnesses saw Braa drive away in a white Chevy S-10 pickup.

A police officer who happened to be a few blocks away heard the gunshots and responded to the scene. Whitney had a pulse but was bleeding from the abdominal area and was nonresponsive. He was airlifted to Harborview and died en route. Later, an autopsy determined Whitney had suffered four gunshot wounds. The wounds showed that the bullets traveled from back to front through Whitney's body. One bullet and fragments from another were recovered from his abdomen. Another bullet exited through the front of his abdomen. The cause of Whitney's death was shock, trauma, and loss of blood due to the gunshot wounds.

Officers found bullet jacket fragments near where Whitney had lain. There were shell casings in the parking lot, as well as the book the defendant had been reading at the bar. Detectives recovered three bullets and bullet shrapnel from the back door area and the carpet just inside the back door. There were two indentations in the metal of the back door, which were consistent with bullet strikes. Detectives also located a bullet hole in an interior wall just inside the back door. Forensic analysis

later confirmed that the bullet taken from Whitney's abdominal wall and the bullet found by the back door were fired from the same gun. The four shell casings found in the parking lot were compared and it was forensically determined that all had been fired from one gun.

Braa lived in a two-bedroom trailer that he shared with a roommate, Lenny Graff. Braa returned home around 10:30 on the night of the crime and asked Graff to get some beer, which Graff did. Graff recalled that Braa looked like he had been in a fight, with black eyes and a bloody nose. When Graff returned with the beer, Braa had changed his clothes and no longer looked dirty or bloody. Graff asked what had happened, and Braa told him that he had "killed a subhuman." When Graff asked what a subhuman was, Braa responded, "It means if you're not white, you're not right." He told Graff he had been jumped by some Mexicans who wanted to steal his wallet. He refused to discuss further the topic of killing someone and asked Graff to lie and say he had been home all night.

That night, Braa parked his car several feet further from the roadway than he usually did, and he did not move it for the next three days. On November 14, 2006, officers arrived at Braa's trailer to execute a search warrant and arrest him. They could see Braa inside, through the kitchen window. They announced their presence over the patrol car PA systems. They also used a "hailer," a box equipped with a loudspeaker, a handle for throwing, and hundreds of feet of cable, to communicate with Braa. Several times, an officer announced, "Kevin Braa, this is the Sheriff's Office. We have a warrant for your arrest. Identify yourself and surrender," but Braa did not come out. Officers shone lights into the home, and a helicopter was also used to illuminate the area. After Braa failed to respond to repeated voice commands, officers deployed two pepper spray projectile canisters through a window of the trailer. Braa came outside a few seconds later, complied with officers' verbal instructions, and was taken into custody.

Four and a half months later, while doing yard work, Graff discovered a plastic garbage bag under the deck of the trailer. Inside, he discovered Braa's 9mm semiautomatic Ruger handgun. He called 911, and police picked up the gun. Forensic analysis confirmed that the bullet extracted from Whitney's

abdominal wall had been fired from that weapon and that one of the four spent shell casings found in the parking lot had also been fired from that weapon. The other bullets and casings were not analyzed because it had already been determined that they had been fired from the same weapon as the tested bullet and casing. An expert in trajectory analysis testified that at least one bullet had been shot from a height of about four and a half feet, within 10 feet of where bullet fragments were imbedded in the wall inside the tavern. The evidence was consistent with the trajectory from a gun held by a person of average height while standing up.

At trial, Braa conceded that he shot the gun and argued that it had been in self-defense. He testified that he had a verbal exchange with some guys he thought were Mexican and that he had called them "Mexicans" and "sub-humans" and "invited them to go back to their own country." He recalled that the bartender had asked him to be quiet and go sit down, and he testified that he did so. Shortly afterward, he left the bar through the back door and as he was leaving was hit over the head and lost consciousness. When he came to, he was being beaten by an unknown assailant. He did not fight back but tried to protect himself by curling up. He tried to get away but was beaten more and shoved to the ground. He thought he was going to be beaten until he was killed. After being slammed into a vehicle, he got his gun out and fired immediately. He testified that he was slumped, lying on the ground when he fired.

Braa was charged with second degree murder and, in the alternative, first degree manslaughter. The jury found Braa guilty of the alternate charge of first degree manslaughter.

Braa, 2009 WL 1591369, at *1-3.

¶5 Nine years after his conviction, Braa filed a motion in the superior court seeking DNA testing of a drop of blood taken from the parking lot of the tavern on the night that Whitney was shot. Braa argued that the DNA test would reveal new information suggesting that Whitney had bled in the parking lot, thereby supporting Braa's trial defense that he had shot Whitney in self-defense while Whitney was standing in close proximity over him.

¶6 The superior court denied the motion on two separate grounds. The superior court first concluded that Braa failed to satisfy the DNA testing statute's requirement that the petitioner show that DNA testing is material to the identity of the perpetrator of the crime. This was so, the superior court concluded, because "the identity of the shooter (the defendant) is undisputed." The superior court also concluded that Braa's motion failed to establish that "favorable DNA evidence, when considered along with all of the other evidence, would not demonstrate his innocence on a more probable than not basis."

II

¶7 Braa contends that the superior court erred by denying his postconviction motion to conduct a DNA test of the blood drop.

¶8 We review the superior court's decision on such a motion for abuse of discretion. State v. Crumpton, 181 Wash.2d 252, 257, 332 P.3d 448 (2014) (citing State v. Riofta, 166 Wash.2d 358, 370, 209 P.3d 467 (2009) ). The superior court "abuses its discretion if the decision rests on facts unsupported in the record or was...