State of Washington v. David E. Nickels, 31642-4

Background

Decedent Sage Munro was found shot to death at his home on Dec. 29, 2009; investigators found handcuffs, a .45 shell casing, and footprints near the scene.
DNA testing revealed an inseparable mixed profile of at least three contributors on the handcuffs; Nickels was a potential contributor and other tested people (including officers) were excluded.
Police obtained a toothbrush from Nickels by consent and developed a DNA profile; investigators then sought a Montana warrant to obtain Nickels’s DNA for comparison.
A Grant County track-and-trace order and phone-provider records were used to locate Nickels in Montana; he was detained and submitted to court-ordered DNA swabs.
At trial the court used a nonstandard "to convict" instruction that told jurors they "should" return guilty if elements were proved beyond a reasonable doubt; Nickels was convicted of first-degree premeditated murder.
On appeal Nickels challenged (1) the permissive "should" jury instruction, (2) the legality of the phone tracing and the Montana DNA warrant (including alleged misstatements and officer misconduct), and (3) alleged suppression/nonpreservation of exculpatory phone records and texts.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Nickels)	Held
Whether the "to convict" instruction using "should" was reversible error	Instruction language was harmless; conviction valid	Instruction was structural error requiring automatic reversal	Court followed Smith: use of "should" is structural error; conviction reversed and remanded for retrial
Whether Smith precedent should be overruled	Smith was wrongly decided; urged not to follow it	Smith controls; instruction here mirrors Smith error	Court declined to overturn Smith; applied stare decisis and Otton standard
Lawfulness of cell-phone track-and-trace and whether phone was traced without proper order	Track-and-trace complied with statute; order obtained; provider records show lawful tracing	Trace/order was not properly executed or served; contradictory officer statements	Court found record shows an order was obtained and tracing occurred via carrier; no statutory/constitutional violation shown
Validity of Montana DNA warrant (misstatement about prior WA warrant; officer misconduct)	Warrant supported by probable cause (toothbrush DNA); misstatement not material; no known misconduct at time of issuance	Warrant invalid due to material misstatement and because Detective Mlekush was later found dishonest; Franks hearing required	Misstatement immaterial to probable cause; no basis for Franks hearing because alleged officer misconduct occurred after the warrant and was speculative
Alleged suppression/nonpreservation of exculpatory phone texts/records	Disclosure sufficient; no prejudice; defendant can obtain comparable evidence on remand	State withheld/ex failed to preserve exculpatory texts/records causing due process violation and warrants dismissal	Court held defendant did not show prejudice or materiality required for dismissal; remand allows fuller development and possible remedies if prejudice later shown

Key Cases Cited

State v. Smith, 174 Wn. App. 359 (holding that a permissive "to convict" instruction using "should" is structural error)
State v. Otton, 185 Wn.2d 673 (stare decisis standard for rejecting prior precedent)
Int'l Ass'n of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2d 29 (discussion of stare decisis principles)
State v. Chenoweth, 160 Wn.2d 454 (materiality standard for warrant invalidation based on inaccuracies)
Franks v. Delaware, 438 U.S. 154 (standard for evidentiary hearing when warrant affidavit contains false statements)
State v. Michielli, 132 Wn.2d 229 (prejudice requirement for dismissal based on governmental misconduct)
State v. Wittenbarger, 124 Wn.2d 467 (due process/preservation of evidence; materiality and availability of comparable evidence)