State v. Thompson

271 P.3d 204

STATE of Washington, Petitioner,

v.Bobby Ray THOMPSON, Respondent.

No. 84739–8.

Supreme Court of Washington, En Banc.

Argued May 5, 2011.Decided Feb. 23, 2012.

Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, for Petitioner.

David Bruce Koch, Nielsen Broman & Koch, PLLC, Seatle, WA, for Respondent.

Diane Marie Meyers, Rochelle L. Haller, Graham & Dunn, PC, Seattle, WA, amicus counsel for The Innocence Network.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.ALEXANDER, J.^*

¶ 1 We granted the State's petition to review a decision of the Court of Appeals in which that court reversed the trial court's denial of Bobby Ray Thompson's motion for postconviction deoxyribonucleic acid (DNA) testing. In reaching its decision, the Court of Appeals held that the trial court erred in considering a post-arrest statement that Thompson made to the police, but which was not admitted in evidence. We affirm the Court of Appeals.

I

¶ 2 On April 13, 1995, a woman identified in the record as J.S. went with friends to a bar in Lynnwood, Washington. During the course of the evening and the early morning hours of the following day J.S. consumed approximately 12 alcoholic drinks. Close to the bar's closing time, a man whom J.S. had met earlier in the evening approached J.S. After a brief conversation J.S. agreed to go with him to an “after hours” party at a hotel room across the street from the bar. When they arrived at the room, no one else was present. This caused J.S. to tell the man that she wanted to return to her friends at the bar. J.S. said that the man refused to let her leave and repeatedly beat and raped her. J.S. indicated at trial that she lost consciousness numerous times as the man hit and kicked her in the head and body, raped her several times, and attempted to strangle and drown her in the hotel room bathtub. J.S. testified, additionally, that she did not remember what occurred between the final time she lost consciousness and her awakening at the hospital. She also stated that she had no memory of talking to or seeing anyone at the hotel, except for the man who raped her. Finally, she indicated that she did not remember speaking to police officers at the hospital.

¶ 3 Other testimony at trial revealed that in the early morning hours of April 14, 1995, a hotel desk clerk had reported to the Lynnwood Police Department that a noisy dispute was taking place at the hotel. After arriving at the scene, police officers witnessed Thompson “pushing” J.S. out of the room where the rape of J.S. is alleged to have occurred. Verbatim Report of Proceedings (July 24, 1995) (VRP) at 39, 40. Hotel records showed that the room was registered to Thompson. One of the responding police officers testified that J.S. was crying, shaking, and “yelling hysterically that he'd beat her and he was going to kill her.” Id. at 40–41. The police officers arrested Thompson at the scene. Shortly thereafter, the officers entered the hotel room and observed blood on the bed, floor, walls, and in the bathroom.

¶ 4 J.S. was taken to the hospital, where a full rape examination was conducted, including vaginal swabs. The neurosurgeon who treated J.S., Dr. Eric Kohler, testified that J.S. was suffering memory problems, her eyes and ear canals were swollen shut, and there was extensive bruising and swelling of her head and body. Dr. Kohler also indicated that because J.S. reported that the rapist beat her with his fists, he would expect the rapist to have sustained injuries to his hands. There is no evidence that Thompson's fists showed any signs that he administered a beating on the night of his arrest.

¶ 5 A day after the attack, J.S. told a detective she probably could not identify her attacker because she had seen him in the bar “[j]ust for a brief second,” and the hotel room was dark. VRP at 81. J.S. also later indicated to an investigator for the defendant that the rapist might have had blond hair, did not have facial hair, and was between 5'7? and 5'8? tall. The record discloses that Thompson has black hair, is 6'3? tall, and had a moustache at the time of his arrest.

¶ 6 The Washington State Patrol Crime Lab received evidence for testing, including bed sheets and a bloody washcloth from the hotel room as well as swabs from the rape kit and blood vials from Thompson and J.S. A forensic scientist testified that although the blood on the sheets may have come from J.S., it could not have come from Thompson. One bloodstain on the sheet contained semen, but the forensic scientist was unable to determine the donor. He also found semen in the vaginal swabs from the rape kit. He did not, however, perform DNA tests to determine the donor of the semen, indicating that there was insufficient time to do so prior to trial.

¶ 7 On the morning of his arrest, Thompson gave a statement to the police in which he indicated that he and the victim had engaged in consensual sexual intercourse. See Br. of Resp't, App. B.

¶ 8 The State charged Thompson in Snohomish County Superior Court with first degree rape. Prior to trial, the trial court granted an unopposed defense motion to preclude admission of Thompson's statement to the police that he and the victim had engaged in consensual sexual intercourse. Pursuant to the parties' stipulation, the trial court indicated that the statement could be admitted for impeachment purposes if Thompson testified at trial. Thompson did not testify at trial, and, consequently, his statement was not offered or admitted in evidence. A jury found Thompson guilty of first degree rape, and the trial court sentenced him to 280 months in prison. The judgment and sentence became final in 1997.

¶ 9 Approximately nine years later, Thompson, acting pro se, filed a motion in Snohomish County Superior Court for postconviction DNA testing of all of the evidence collected in the rape case. In his motion, Thompson stated that he “claims actual innocence.” Clerk's Papers (CP) at 91. After the State informed the trial court that the evidence had been destroyed in 2001, it denied Thompson's motion.

¶ 10 Thompson appealed that decision to the Court of Appeals, Division One, which dismissed the appeal as moot based on the trial court's determination that all testable evidence had been destroyed. State v. Thompson, 155 Wash.App. 294, 298, 229 P.3d 901 (2010). Thompson later discovered that the testable evidence had not been destroyed and, thus, was available for testing. Based on this information, the State moved to recall the mandate issued by the Court of Appeals. The Court of Appeals granted the motion and stayed Thompson's appeal pending this court's decision in State v. Riofta, 166 Wash.2d 358, 209 P.3d 467 (2009). Thompson, 155 Wash.App. at 298, 229 P.3d 901. After Riofta was decided, the Court of Appeals reversed the trial court's order denying Thompson's motion for DNA testing and remanded with instructions to the trial court to enter an order permitting the testing. Id. at 304, 229 P.3d 901. The State petitioned for this court's review, which we granted. State v. Thompson, 170 Wash.2d 1005, 245 P.3d 227 (2010).

II

¶ 11 Like the Court of Appeals, we review a trial court's decision on a motion for postconviction DNA testing for abuse of discretion. Riofta, 166 Wash.2d at 370, 209 P.3d 467. A trial court abuses its discretion when an order is manifestly unreasonable or based on untenable grounds. State v. Rafay, 167 Wash.2d 644, 655, 222 P.3d 86 (2009). “A discretionary decision ‘is based “on untenable grounds” or made “for untenable reasons” if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.’ ” Id. (quoting State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wash.App. 786, 793, 905 P.2d 922 (1995))).

¶ 12 Pursuant to the provisions of RCW 10.73.170(2), a motion for postconviction DNA testing 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, or accomplice to, the crime.

Subsection (3) of RCW 10.73.170 provides that the motion shall be granted if “the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.”

¶ 13 The trial court set forth three reasons for denying Thompson's motion for postconviction DNA testing: (1) the evidence had been destroyed so there was nothing to test; (2) the defendant failed to satisfy RCW 10.73.170(2)(a) because he did not show that “DNA technology was unavailable at the time of trial”; and (3) the defendant did not show a “likelihood that the DNA evidence would demonstrate the defendant's innocence.” CP at 7–8. The Court of Appeals rejected the trial court's reasoning and reversed and remanded for an order permitting DNA testing under RCW 10.73.170.

¶ 14 The only issue before us is whether the trial court erred when it considered evidence available to the State at the time of trial but not admitted at trial. This question implicates the trial court's third reason for denying Thompson's motion, which was based on subsection (3) of RCW 10.73.170. The State argues that DNA testing would not demonstrate Thompson's innocence because Thompson made a statement to the police shortly after his arrest in which he said that he and the victim had engaged in consensual sexual intercourse. Suppl. Br. of Pet'r at 8. The State points out that “DNA testing might provide evidence on whether one person had sexual intercourse with another, but it cannot show whether that intercourse was...