State v. Talbott

1

STATE OF WASHINGTON, Respondent, v. WILLIAM EARL TALBOTT II, Appellant.

No. 80334-4-I

Court of Appeals of Washington, Division 1

February 12, 2024

UNPUBLISHED OPINION

ORDER DENYING MOTION FOR RECONSIDERATION AND WITHDRAWING AND SUBSTITUTING OPINION

Appellant filed a motion for reconsideration on December 18, 2023. This court called for an answer on December 21, 2023, which respondent filed on January 5, 2024. After review of the motion and answer, a panel of this court has determined that the motion for reconsideration shall be denied. The court has further determined that the opinion filed December 4, 2023 shall be withdrawn and a substitute opinion filed.

Now therefore, it is hereby

ORDERED that the motion for reconsideration is denied; and it is further

ORDERED that the opinion filed December 4, 2023 shall be withdrawn and a substitute opinion filed.

Hazelrigg, A.C.J.

William Earl Talbott II appealed from a guilty verdict on two counts of aggravated murder in the first degree, asserting numerous evidentiary and constitutional errors. On remand from the Supreme Court, we hold that Talbott fails to demonstrate a basis for reversal and affirm his convictions. However, we remand for the trial court to strike the erroneous firearm enhancement on Talbott's judgment and sentence.

FACTS

This case comes to us on remand from our Supreme Court. State v. Talbott (Talbott II), 200 Wn.2d 731, 733 521 P.3d 948 (2022). The underlying facts are set out in detail in this court's unpublished opinion and only briefly summarized here. See State v. Talbott (Talbott I), No. 80334-4-I, slip op. at 1-3 (Wash.Ct.App. Dec. 6, 2021) (unpublished) https://www.courts.wa.gov/opinions/pdf/803344.pdf. In November 1987, the bodies of Jay Cook and Tanya Van Cuylenborg were found in rural Snohomish and Skagit counties respectively. Id. at 2. A DNA profile was developed from semen collected from Van Cuylenborg's pants and vaginal swab; this profile was matched to Talbott through genealogy mapping nearly three decades later. Id. at 2-3. After a jury trial, Talbott was found guilty of two counts of aggravated murder in the first degree. Id. at 3. Talbott appealed, and this court reversed, holding that the seating of a juror who expressed actual bias necessitated reversal. Id. at 12-13. The State of Washington petitioned for review by our State Supreme Court, which was granted. Talbott II, 200 Wn.2d at 737. The Supreme Court reversed and held that "Talbott is not entitled to have his for-cause challenge to juror 40 considered on appeal" because he "did not attempt to strike juror 40 with an available peremptory challenge, he did not exhaust his peremptory challenges on other jurors, and he affirmatively accepted the jury panel as presented." Id. at 748. The Supreme Court reversed and remanded to this court "to address the claims it did not reach in its prior opinion." Id. We reach those issues here.

ANALYSIS

I. Sufficiency of Evidence

Under the due process clause of the federal constitution, the State must prove every element of a crime beyond a reasonable doubt. State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018) (citing U.S. Const. amend. XIV). When analyzing whether evidence is sufficient to uphold a jury's verdict, this court applies a deferential standard of review. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011). We view "the evidence in the light most favorable to the State," to determine whether "any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Id. We defer to the jury to make determinations on the credibility of witnesses, resolve conflicting evidence, and evaluate the persuasiveness of the evidence. State v. Francisco, 148 Wn.App. 168, 175, 199 P.3d 478 (2009). Both direct and circumstantial evidence may be considered to support the jury's verdict and "[a] trier of fact may rely exclusively upon circumstantial evidence to support its decision." State v. Jackson, 145 Wn.App. 814, 818, 187 P.3d 321 (2008).

Here, Talbott was convicted of two counts of aggravated murder, one count for Van Cuylenborg and a second for Cook. The State was required to prove the following elements:

(1) That on or about the 18th day of November, 1987, through the 24th^[[1] day of November, 1987, the defendant acted with intent to cause the death of [Van Cuylenborg and Cook];

(2) That the intent to cause the death was premeditated;

(3) That [Van Cuylenborg and Cook] died as a result of the defendant's acts; and

(4) That any of these acts occurred in the State of Washington.

In addition to finding these elements were met, the jury found the following aggravating circumstances:

a. There was more than one person murdered and the murders were part of a common scheme or plan or the result of a single act of the person; or

b. The murder was committed in the course of, in furtherance of, or in immediate flight from robbery in the first degree or second degree, rape in the first or second degree, or kidnapping in the first degree.

Talbott asserts the State failed to prove that he caused the deaths of Van Cuylenborg and Cook beyond a reasonable doubt. He concedes that he had sexual contact with Van Cuylenborg and made physical contact with the van the couple was driving, as demonstrated by the presence of his DNA on Van Cuylenborg's pants and body and his palm print found on the van's back window, but he argues this evidence is insufficient to meet the State's burden of proof as to the aggravated murder of both victims.

At trial, much of the State's case rested upon circumstantial evidence. First, the State relied on the particulars of Van Cuylenborg and Cook's trip to Washington. The couple left their homes in Victoria, B.C., on November 18 to retrieve furnace parts for Cook's father. They planned to drive to Seattle, sleep in the van overnight, purchase the parts from Gensco Inc. the next morning, and then return home to Victoria later that day, November 19. The pair took the ferry from Victoria to Port Angeles. They were seen together in two different locations as they made their way to the Bremerton ferry terminal, where they arrived at around 10:00 p.m. on November 18. Van Cuylenborg and Cook were unfamiliar with the area; they got lost on their way to the Bremerton ferry and were redirected by a store clerk in Hoodsport. Van Cuylenborg's and Cook's bodies were found in separate counties, each in a remote area, while their van was located in a third county.

Second, the State relied on the condition of the bodies when they were found. When Van Cuylenborg's body was discovered, she was nude from the waist down, wearing socks but no shoes, with her bra pushed above her breasts.

She had been shot in the back of the head, suffering "a very close contact wound." The medical examiner determined Cook's cause of death was asphyxia due to ligature strangulation. Officers found zip ties connected together at each location where Van Cuylenborg and Cook's bodies were found, as well as in the van, though neither of the victims appeared to have been bound by zip ties or any other item.

Third, the State relied on Talbott's familiarity with the general area where Cook's body was found. Talbott had previously lived seven miles from the scene and had spent time with a friend photographing the area near the Skykomish River and Monroe Correctional Complex (a state prison), several miles from the location where Cook's body was found.

Talbott correctly identifies conflicting evidence and gaps in the State's case. The only physical injury identified as to Van Cuylenborg was the gunshot wound; there was no evidence presented of vaginal trauma or ligature marks indicating she had been bound. Talbott also notes that there was no testimony that Van Cuylenborg would not have consented to sexual activity and there was an unidentified non-sperm DNA profile resulting from the vaginal swab "indicat[ing] a third person there." Van Cuylenborg was killed by a gunshot wound and Cook was strangled with a dog collar and found with a pack of cigarettes shoved down his throat; Talbott was never known to possess firearms, smoke cigarettes, or own a dog.

Throughout trial and on appeal, the State relied on the foundational argument that, because Van Cuylenborg and Cook traveled together, Van Cuylenborg would not have had consensual sexual intercourse with Talbott and therefore Talbott must have raped Van Cuylenborg. The State's theory rested on the inference that Talbott killed both either in furtherance of, flight from, or to cover up the rape. This argument rests on a number of presumptions about the relationship between the couple which simply cannot be known and is undercut by testimony that reflects the pair had been dating only four months and "had been having some problems lately." The State also maintains Van Cuylenborg was unlikely to have sexual intercourse with a stranger because she was menstruating. However, the only evidence presented that Van Cuylenborg was menstruating was the discovery of a used tampon in the van that was never tested for DNA and therefore never conclusively determined to be hers; the autopsy report did not indicate that she was menstruating at the time of her death. Ultimately, there was no evidence regarding Van Cuylenborg's sexual interests, proclivities, practices, or desires.

"'Circumstantial evidence is evidence of facts or circumstances from which the existence or nonexistence of other facts may be reasonably inferred from common experience.'" Jackson 145 Wn.App. at 818 (internal...