State v. Gray

215 P.3d 961

151 Wn. App. 762

STATE of Washington, Respondent, v. Dennis GRAY aka Dennis Galusha, Appellant.

No. 61709-5-I.

Court of Appeals of Washington, Division 1.

July 6, 2009.

Publication Ordered August 28, 2009.

James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

APPELWICK, J.

¶ 1 In 1991, Dennis Gray was convicted of first degree rape and attempted first degree rape. Gray appeals the trial court's denial of his 2007 request, pursuant to RCW 10.73.170, for postconviction DNA testing on the physical evidence used at trial. Gray satisfied the statute because he met the procedural requirements of the statute by demonstrating that DNA testing had advanced since the time of trial, and by demonstrating that the evidence from the DNA testing would be new, significant, and material to the identity of the perpetrator. Gray satisfied the substantive requirement of the statute by demonstrating the likelihood that the evidence would suggest innocence on a more probable than not basis. We reverse and remand.

FACTS¹

¶ 2 Dennis Gray was convicted of first degree rape, attempted first degree rape, and unlawful imprisonment for an incident that occurred on August 7, 1991. Four teenagers, two girls and two boys, were camping near the home of one of the girls when Gray² approached their campsite, made some small talk, and asked if they had any marijuana. Gray left, but returned a few moments later, this time carrying a knife with a four to six inch blade. He grabbed R.J., one of the girls, and told the boys to lie down or he would kill her. The boys complied. When R.J. refused to take her clothes off, Gray held her around the throat with the knife to her neck and told C.S., the other girl, to take her clothes off. Without releasing R.J., Gray forced C.S. to perform fellatio on him. Gray pushed C.S. on her back and attempted to vaginally penetrate her. He then anally raped her. At some point during the rape, Gray's grasp loosened on R.J., and she was able to run away. Gray fled.

¶ 3 Police arrived on the scene shortly after the attack and found a truck registered to Gray near the campsite. Police set up surveillance. At about 5:00 a.m., Gray emerged from a field near R.J.'s house, and police arrested him, as he matched the teenagers' description. They described Gray as wearing a black leather biker-type jacket, jeans, and black boots. On the jacket was a distinctive lapel pin. Gray had a beard and long ponytail.

¶ 4 Police brought bloodhounds to the scene of the attack, where they were scented to Gray using clothing Gray was wearing at the time of his arrest. The dogs then located Gray's scent at the rape scene, followed it through a field, out onto the street, and to the spot where police arrested Gray and put him in the patrol car.

¶ 5 Police prepared a photo montage, where Gray's ponytail had been undone. They showed it to the four teenagers. None picked Gray. The two boys, but not the two girls, positively identified Gray in a second montage where his hair was in a ponytail.

¶ 6 Police collected rectal and vaginal swabs;³ pubic and head combings; and the underpants, bra, shorts, and tights from C.S. The swabs and clothing were tested for semen, with negative results. No DNA (deoxyribonucleic acid) testing was done on the swabs. Police also collected samples from Gray's clothing. In addition, hairs were collected from both victims, including C.S.'s pubic and head combings, the sleeping bags on which the attacks occurred, and Gray's clothing and belongings. Hair comparison analysis presented at trial showed that two of the five hairs recovered from one sleeping bag were dissimilar to all the control hair samples. None of the forensic scientist's analysis conclusively established Gray as the assailant. DNA testing of the hair samples was not conducted.

¶ 7 Gray filed a motion for postconviction DNA testing under RCW 10.73.170 in King County Superior Court on February 13, 2008. Gray moved the court to allow DNA testing on three groups of evidence: (1) clothing worn by C.S. and R.J.; (2) hairs recovered from the scene, the victims, and Gray; and (3) rectal and vaginal swabs taken from C.S. just after she was raped.⁴ The trial court denied Gray's motion, stating only that "[d]efendant's Motion is Denied for failure to satisfy the requirements of RCW 10.73.170."⁵ Gray timely appealed.

DISCUSSION

I. Standard of Review

¶ 8 The postconviction DNA testing statute articulates three requirements, some substantive and some procedural:

(2) The motion shall:

(a) State that:

(i) The court ruled that DNA testing did not meet acceptable scientific standards; or

(ii) DNA testing technology was not sufficiently developed to test the DNA evidence in the case; or

(iii) The DNA testing now requested would be significantly more accurate than prior DNA testing or would provide significant new information;

(b) Explain why DNA evidence is material to the identity of the perpetrator of ... the crime ...; and

. . .

(3) The court shall grant a motion requesting DNA testing under this section if such motion is in the form required by subsection (2) of this section, and the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.

RCW 10.73.170; State v. Riofta, 166 Wash.2d 358, 363, 209 P.3d 467 (2009).

¶ 9 In construing a statute, the objective is to ascertain and give effect to the legislature's intent. State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005). If a statute uses plain language and defines essential terms, the statute is unambiguous. State v. Stivason, 134 Wash.App. 648, 651, 142 P.3d 189 (2006), review denied, 160 Wash.2d 1016, 161 P.3d 1027 (2007). If the statute is unambiguous, a court may not look beyond its plain meaning or consider legislative history; rather, the court must determine legislative intent through the plain meaning of the statute. Id.

¶ 10 RCW 10.73.170(2)(a) and (b) are procedural requirements relating to the motions form and content. Riofta, 166 Wash.2d 358, 363, 209 P.3d 467.⁶ The substantive requirement of RCW 10.73.170(3) requires the convicted person to show the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis. Riofta, 166 Wash.2d 358, 366, 209 P.3d 467. As part of satisfying RCW 10.73.170(3), Gray must also carry the burden on the matters pleaded under RCW 10.73.170(2). Whether the trial court correctly denied Gray's motion turns on whether Gray has established that DNA technology was not sufficiently developed to test the biological evidence at the time of his trial, or that the DNA testing now requested would provide significant new information; shown that the information is material to the identity of the perpetrator; and demonstrated a likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.

¶ 11 We review the trial court's application of the statutory standard for an abuse of discretion. Riofta, 166 Wash.2d 358, 368, 209 P.3d 467.

II. Evolution of DNA Testing: RCW 10.73.170(2)(a)(ii)

¶ 12 The DNA testing conducted in the early 1990s demanded a large and properly preserved sample of biological material. Cynthia E. Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence Under Innocence Protection Statutes, 42 AM.CRIM. L.REV. 1239, 1242 n. 18 (2005). Because no semen was present, the testing available at Gray's trial was not adequate to detect the DNA on C.S.'s underwear, or on the vaginal or anal swabs. Hair examination, which compared control hairs from the victims to hairs taken from the physical evidence, did not establish Gray as the assailant. DNA testing on the hairs was not conducted for trial, nor does the record establish that DNA testing of hair was available at the time of trial.

¶ 13 Gray argues that the new DNA testing method, short tandem repeats (STR), is much more accurate than restriction fragment length polymorphism (RFLP), the method available at the time of his trial. To buttress his argument, he cited scientific and legal literature discussing the advances in DNA testing, noting that STR testing has made it possible to test small amounts of previously untestable biological material contained in rape kits. Id. He also provides authority for his proposition that STR or mtDNA (mitochondrial) testing could be conducted on the hairs. Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 FORDHAM L.REV. 1453, 1470-71 (2007).

¶ 14 The State conceded in its trial brief that DNA testing technology has significantly advanced. However, the State responds that Gray has not met his burden under RCW 10.73.170(2)(a)(ii) regarding the swabs, because he has not shown that the technology exists to find the assailant's DNA on the vaginal and rectal swabs, given the overwhelming amount of C.S.'s DNA on the swabs. The State does not cite to any legal or scientific literature to support its argument. Furthermore, the State makes no argument relative to advances in DNA testing on hair samples or clothing.

¶ 15 We hold that Gray has satisfied RCW 10.73.170(2)(a)(ii).

III. Significant New Information: RCW 10.73.170(2)(a)(iii)⁷

¶ 16 In Riofta, the Supreme Court held that "the statutory language, `significant new information,' includes DNA test results that did not exist at the time of trial and that are material to the perpetrator's identity, regardless of whether DNA testing could have been performed at trial." 166 Wash.2d 358, 361, 209 P.3d 467.

¶ 17 The testing available at Gray's trial could not identify the source of any DNA on C.S.'s underwear or on the swabs. The scientific literature cited above indicates the new testing may be able to analyze DNA from biological trace material even without the...