State v. Crumpton

289 P.3d 766

STATE of Washington, Respondent,

v.Lindsey L. CRUMPTON, Appellant.

No. 42173–9–II.

Court of Appeals of Washington, Division 2.

Dec. 11, 2012.

Thomas E. Weaver Jr., Attorney at Law, Bremerton, WA, for Appellant.

Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.

HUNT, J.

¶ 1 Lindsey L. Crumpton appeals the superior court's denial of his motion for postconviction deoxyribonucleic acid (DNA) testing under RCW 10.73.170. He argues that the superior court should have granted his motion because he showed a “high probability that DNA testing could identify the perpetrator of [the] rape.” Br. of Appellant at 1. Citing the statute's plain language, the State responds that Crumpton failed to show “a likelihood that the new DNA test results would demonstrate his innocence on a more probable than not basis.” Br. of Resp't at 8. Applying the statutory standard, we hold that the superior court did not abuse its discretion in denying Crumpton's postconviction request for DNA testing under RCW 10.73.170; we affirm.

FACTS

I. Burglary and Rapes

¶ 2 Twenty years ago, a jury convicted Lindsey L. Crumpton of five counts of first degree rape and one count of residential burglary of DE, a 75–year–old widow who lived alone in Bremerton. We affirmed his convictions in an unpublished opinion, in which we set forth the following pertinent facts:

On April 10, 1993, D.E. went to bed around 10:00 p.m. She awoke at 3:15 a.m. [and] saw a man standing by the spare bed.

The man grabbed D.E., threw her down on the floor between the two beds and stuck her head between the mattress and boxspring of her bed. He then picked her up and put her on the bed. He pulled her clothes down, covered her head with pillows and other bedding and raped her anally. He turned on the bedroom light and started searching through drawers and going through other rooms in the house.

D.E. was raped five times that night, four times anally and once vaginally. In between each rape, the man rummaged through other rooms in the house. During the last episode, the man removed all of D.E.'s clothes, “rammed some handkerchiefs up [her] rear end and [her] front ... poured something cold on [her] and washed [her].” The handkerchiefs came from a nightstand in D.E.'s room.

D.E. testified that she only saw the man's face for a couple seconds and after that her head was covered up. She did notice that he felt “greasy” and smelled of cologne.

After the man left, D.E. stayed in bed for a couple of minutes[,] ... put on a housecoat and went to a neighbor's home. She arrived at the Bachelders around 5:15 a.m. and they called 911 dispatch. Janet Bachelder noticed that D.E. was barefoot, wearing a long robe, was not wearing her glasses or false teeth, and that she was trembling, frightened and “distraught.” D.E. told her, “I've been raped.”

Bachelder asked D.E. if he had hurt her and she said the man forced her to the floor and put her head under the mattress and put her back on the bed and that she was raped five times, “front and back.” She was trembling and stammering while telling this. D.E. was only able to identify her attacker as “a big black man” and this information was relayed to 911. The paramedics and Bachelder took D.E. to the hospital. Bachelder noticed blood on the back of D.E.'s robe and on the sheets of the gurney at the hospital.

....

David Hughes, a Bremerton patrolman, responded to a call to look for a rape suspect at 5:17 a.m. At 5:23, he noticed a heavy-set black male running across the street at D Street and National. As Officer Hughes turned the corner, he saw the man walking and noticed two napkins or cloth-like objects on the ground near him and saw him drop another item. Hughes ordered the man to stop. The man was wearing a leather jacket and no shirt. Hughes noticed that his skin was “wet looking” and that he smelled of cologne, and that he was “polite” and “acting a little nervous.” ...

Hughes asked Crumpton where he was going and he stated that he was coming from his sister's house and going to his mother's house. Crumpton was holding a flowered print cloth, which resembled a pillowcase or blanket and appeared to have blood smears on it. Hughes then placed Crumpton in the back seat of his car, called to report he had a subject who fit the description, and requested another officer.

Deputy Sheriff John Gese arrived and conducted a patdown search. He felt many objects in Crumpton's pockets and discovered a large quantity of women's jewelry, a cigarette case and a ring case. Gese also noticed a large bulge in Crumpton's groin area, and asked him to remove what was inside. Crumpton pulled out three white handkerchiefs which appeared to be soiled and oily. Gese told Crumpton he was being detained because he matched the description of an assault suspect, and read Crumpton his rights. Gese handcuffed him and put him in his car. Gese also retrieved a flannel sheet and a telephone cord from Officer Hughes' car. Crumpton repeated that he was at his sister's and that he was on his way to his mother's house. He said the jewelry was his and that he was carrying it because he did not trust his sister. He also said he had the handkerchiefs because he had a cold and that he was taking the sheet to his mother's to wash.

Investigation revealed that the front door of D.E.'s house had been forced open. The bedroom was in “complete disarray.” Drawers had been pulled out and items were scattered about. A telephone cord in the hall had been cut. A bottle of Crisco oil was found on a dresser in D.E.'s bedroom and the cap and tamper-resistant seal were also recovered there. A soaked handkerchief with a reddish stain was also discovered.

Any fingerprints that were obtained were mostly smudges and had no usable value. Apparently, the presence of liquids can delete or smudge fingerprints and hinder efforts to obtain good prints. Detective Abille testified that there was too much of an oily substance at the scene to obtain fingerprints.

The sheet taken from Crumpton matched the sheet on D.E.'s bed. D.E. also identified the jewelry, cigarette case, handkerchiefs and other items.

Belinda Mier, a forensic serologist, testified that a nonsecretor is one who does not secrete blood group substance in body fluids. She stated that roughly one-quarter of the population, including both blacks and whites, are nonsecretors. Crumpton is a nonsecretor.

She testified that no sperm was found on the vaginal swab. Sperm was discovered on the rectal swab. However, it could not be determined from the sample whether the donor was a secretor or a non-secretor. Two stains on a sheet were examined for semen. Both stains contained acid phosphatase, an enzyme that is a component of both semen and vaginal fluid. Sperm was found on both stains, but P–30 (which is specific to semen) was detected on only one of the stains. Mier stated that if a blood type is not detected from a semen stain, it is because either the sample was too small or the donor is a nonsecretor.

Hairs were collected from D.E.'s bedroom. One of the hairs from the mattress matched the characteristics of a pubic hair sample taken from Crumpton.

A CrR 3.5 hearing was held and Crumpton's statements to the officer were not suppressed. Crumpton was found guilty of five counts of first degree rape and one count of residential burglary.

State v. Crumpton, noted at 82 Wash.App. 1015, slip. op. at 2–7, 1996 WL 1083334, review denied, 130 Wash.2d 1018, 928 P.2d 415 (1996) (emphasis added).

II. RCW 10.73.170 Petition

¶ 3 Eighteen years later, Crumpton petitioned for RCW 10.73.170 postconviction DNA testing of items from the victim's “rape kit,” and a flannel sheet, two white handkerchiefs, and hairs collected at the scene. Clerk's Papers (CP) at 28. The State conceded that Crumpton had met RCW 10.73.170(2)'s preliminary pleading requirements.^FN1

¶ 4 Accepting the State's concession, the superior court considered whether Crumpton had “shown ‘the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.’ ” CP at 62 (quoting RCW 10.73.170(3)). Remarking that the evidence presented at trial was “factually strong,” the superior court entered written findings of fact and conclusions of law. CP at 62 (Finding of Fact (FF) I). The superior court noted that “Crumpton's argument: ... that the Court must presume that the DNA testing would be both favorable and exculpatory, [was] essentially the same argument that was put forth by the dissenting justices in Riofta,^FN2[]” which view the “majority opinion ... rejected ...” and held instead that the statute “ ‘asks a defendant to show a reasonable probability of his innocence before requiring State resources to be expended on a test.’ ” CP at 64 (Conclusion of Law (CL) IV) (quoting Riofta, 166 Wash.2d at 369–70, 209 P.3d 467 (citing RCW 10.73.170(3))).^FN3

¶ 5 The superior court concluded that Crumpton had “failed to show a ‘reasonable probability of his innocence’ ” or “the ‘likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.’ ” CP at 64 (CL III) (quoting RCW 10.73.170(3)). Thus, it denied Crumpton's motion for postconviction DNA testing. Crumpton appeals.

ANALYSIS

[1] ¶ 6 Crumpton argues that the superior court erred in denying his motion for DNA testing under RCW 10.73.170 because he showed a “high probability that DNA testing could identify the perpetrator of [the] rape.” Br. of Appellant at 1. Citing Riofta, 166 Wash.2d at 367–68, 209 P.3d 467,^FN4 Crumpton characterizes the Supreme Court's 2009 explanation of this statutory requirement as follows:

“In determining whether a convicted person ‘has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis,’ a court must look to whether, viewed in light of all of the evidence presented at trial or newly discovered, favorable DNA test results would raise the likelihood that the person is innocent on a more probable than not...