State v. Kalakosky

a Court review of Duggins Demeco seeks Curiam. Per conviction for juvenile pos- his affirming decision Appeals Duggins to deliver. contends of cocaine with intent session a to the continuance granted trial court should not have because the witness appear, witness failed to State when its after the with Even subpoena. not served personally however, speedy was tried within the continuance, Duggins of Appeals JuCR 7.8. by trial Court period specified no reversible error. therefore found that because was tried within Duggins We agree there is no for by trial defined JuCR 7.8 basis period speedy is holding under that rule. This dismissing the prosecution necessary affirm conviction. Duggins' all Nonetheless, say went on to Court Appeals acted with due dili had alternatively prosecutor enforcement wit by the law gence mailing subpoena ness, did receive the though subpoena. even witness not court's be the extent it misleading discussion could Adamski, to State v. give fails to proper weight Adamski, this held 574, 761 P.2d 621 As court lack notice of a in the absence of a subpoena when results witness, cannot due diligence, State's State show 7.8, was served subpoena of JuCR unless purposes 45(c). of the methods described CR one conviction is affirmed. Duggins' May 1993.] 56249-1. En Banc.

[No. H. Respondent, Washington, v. Paul The State of Kalakosky, Appellant. Burns, Paul J. for appellant. Brockett,

Donald C. Prosecuting Attorney, Clark D. Colwell, Criminal for Deputy, respondent. Chief C.J.

Andersen,

Facts of Case A jury found the defendant Paul H. Kalakosky guilty of four and one rapes attempted rape. Kalakosky appeals these (1) convictions claiming: search warrant for his residence, trailer (2) and vehicles was not supported probable cause; of blood taking with a samples warrant, but without notice and an adversarial violated hearing, Fourth, his Fifth (3) and Sixth Amendment rights; the five counts should (4) have been severed and tried separately; the trial court acid) erred in DNA admitting (deoxyribonucleic evidence which (5) linked him to one of the rapes; and the trial court erred in refusing conduct an in camera of a inspection rape crisis center counselor's notes.

During approximate 6-week time, period four rapes and an attempted rape occurred in Spokane. On November 7, 1987, 13-year-old S.H. was kidnapped by masked male and taken to a small trailer where he her. raped Sixteen- year-old K.W. was kidnapped on raped November 1987. On 5, 1987, December 20-year-old C.F. was raped her home. L.S. Twenty-six-year-old was kidnapped, taken to an abandoned house and on December raped 1987. On December 1987, 17-year-old K.L. was and a kidnapped rape was in an attempted alley. None of the victims were able to identify the masked assailant.

On December the police obtained a search war- rant home, defendant's trailer and vehicles. After evi- dence was found the defendant tying several of the rapes, defendant was arrested and detained on a parole hold. Three warrants were obtained to compel the defendant to supply blood samples for various forensic Initial testing. testing the semen found in some victims showed the rapist was a A type secretor. The test of the defendant's blood showed him to be a A A type secretor. second warrant was sample send obtain a of defendant's blood to issued to Laboratory testing. DNA A third for warrant was Lifecodes making sample clotted, earlier had because the obtained testing more difficult. DNA receiving testing prosecuting results, the DNA the

After charge apparently attorney decided not to the defendant rape rape DNA test the of a sixth victim the was with testing exculpatory. However, the DNA linked defendant to charges rape C.F. criminal on five crimes were of suppress counts, moved to sever filed. Defense counsel home, seized in his trailer and vehicles and the evidence Frye1 lengthy held trial court a exclude DNA evidence. regarding general acceptance theory hearing of DNA (RFLP) fragment length polymorphism restriction and the community, laboratory relevant scientific and the test reliability particular conducted in this case. of test suppress court denied all motions and declined

The trial counts. to sever the asked the trial court to conduct an in

Defense counsel also inspection crisis center coun- camera notes of had one of the victims. The trial selor who counseled inspection. engage in declined to such court guilty jury trial, defendant found on all At a five counts. accepted direct review.

This court presented. Five basic issues are

Issues search warrant defendant's home One. Was the Issue by probable supported cause? and vehicles Is counsel adversarial Two. notice to defense and an Issue required hearing constitutionally before a warrant search taking sample may from one blood authorize the charged? yet but not arrested denying trial err in the defend- Did the court Three.

Issue counts for trial? motion sever the ant's (D.C. 1923). States, 1Frye v. United Cir. 293 F. 34 A.L.R. Four. Did the trial court err admitting expert Issue DNA testimony regarding evidence? Five. Did the trial court violate the defendant's

Issue or constitutional statutory rights by to review the refusing rape crisis center's notes involving counseling of one of the rape victims?

Decision Issue One. The search warrant for defendant's home

Conclusion. and vehicles was supported by probable cause; the trial court did not err in the motion to denying suppress evidence.

Probable cause is in established an affidavit support a search warrant sufficient ing by forth setting facts for a reasonable person to conclude the defendant probably is involved in criminal An activity.2 affidavit need not establish proof of criminal activity, but merely probable cause to believe it may have occurred.3 The affidavit evaluated a com monsense manner with doubts resolved in validity, favor of and with considerable deference accorded to the being issuing judge's determination.4

In the present case, the affidavit described five or rapes attempted rapes which the used perpetrator very similar methods of operation. The defendant's physical description was consistent with the descriptions of the rapist provided by the victims.

The affidavit explained that a police officer had observed Kalakosky in a vehicle which matched the of one description of the vehicles described by one of the rape victims. Some of the victims had told police they were assaulted on a sleeping bag and the officer saw on sleeping bags the floor of Kala- Perrone, 538, 551, 834 (1992); Maxwell, 2State v. 119 Wn.2d P.2d 611 State v. 114 (1990). 761, Wn.2d 791 P.2d 223 Gunwall, (1986). 54, 73, 808, 3State v. 106 Wn.2d 720 P.2d 76 A.L.R.4th 517 Partin, 899, 904, (1977); Mak, 4State v. State v. 105 692, 714, 407, denied, Wn.2d 718 P.2d cert. 479 U.S. L. Ed. 2d 107 S. (1986); Maxwell, 770; Freeman, App. Ct. 599 114 Wn.2d at State v. 47 Wn. denied, 737 P.2d review 108 Wn.2d 1032 he Kalakosky, the officer questioned vehicle. When kosky's his sister's car trouble and had walked to having said he was started without However, the officer noted the vehicle home. did not have suspect and the later learned police trouble a sister. "decoy deploy- surveillance day, during

On a different Kalakosky slowly task force members noticed ment", the rape of the rapes approximately cruising neighborhood that time he During destination. any apparent hour without surveillance team to be driv- members of the by was observed children. The vic- rape very slowly watching young ing look- very slight young or quite young tims were either ing. crimi- lengthy had a Kalakosky

The affidavit stated in the prosecu- Police knew from files available nal record. A and evidence from the type tor's office that he had blood A. rapist type showed the rapes Kala- observed rape attempt, police after a Immediately into his home. The hurrying dressed in dark kosky clothing outside his home which also observed a parked police trailer one of the first vic- by matched the description given vehicles which Also located at his residence were tims. had described various victims. been generally court excluded a motion to the trial During suppress, an anon- consideration of one of information piece regarding liked to wear informant's statement that the ymous suspect that, even dis- The court then concluded clothing. western history, criminal the war- regarding the statement regarding cause. supported by probable rant was in the affidavit there was information agree ample We that Kala- could conclude judge reasonably from which the in criminal We there- activity. was involved kosky probably trial court's denial of the motion to suppress. fore the uphold Issue Two. probable A valid search warrant based upon

Conclusion. a blood sample is sufficient obtain constitutionally cause necessary prior is hearing from a no adversarial suspect; of such a warrant. the issuance arrested, he was detained on was

After the defendant Defender's office hold, County Public parole Spokane appearance counsel at his initial court was appointed were obtained Three different warrants following day. The from defendant. samples of blood authorizing taking cause to justify established clearly probable first warrant war- a blood from the defendant. second sample taking was necessary rant stated that an additional blood sample had during new evidence been obtained physical because i.e., on a found in the sleeping bag blood rape investigation, The third blood sample required defendant's vehicle. had Laboratory coagu- because the first one sent Lifecodes All lated and be difficult to test for DNA identification. might arrest, three search warrants were obtained after but prior to charging. allegation

There is no that these warrants lacked prob- Rather, able cause. defendant he was entitled to a argues and to notice to his counsel and that a search war- hearing rant obtained ex is sufficient. He constitutionally not parte that the State should have under CrR argues proceeded 4.7(b)(2)(vi) court, motion, which that on provides may the defendant of blood require taking samples. to permit attorney the criminal discov- prosecuting argues rule, 4.7, CrR CrR 2.3 issu- ery allowing does not preempt ance of search warrants cause and that upon probable based an for a search warrant does not become application adversarial because the has been proceeding simply subject The trial court the criminal discov- arrested. reasoned been ini- ery may rule be utilized after a has proceeding (while defendant was on a tiated; stage the investigative yet supported hold and not a search warrant parole charged) cause was an vehicle to obtain by probable appropriate test. agree. blood We

In Schmerber v. 384 U.S. 16 L. Ed. California, (1966), 2d 86 S. Ct. 1826 the Court held that a suspect's circum can taken even without a warrant if exigent blood be exist. The Court in Schmerber that: explained stances mini- taken is taking commonplace, quantity blood 534 risk, trauma or involves no virtually

mal and the procedure incrimination is not violated against the privilege pain; nature; not testimoniál or communicative the evidence is right the Sixth Amendment was no violation of and there in that case. sample a blood by taking counsel caused testimonial, Fifth defendant's tests are not Since blood In to defend- regard is without merit.5 Amendment argument established that firmly to counsel it is argument, ant's right and under under the Sixth Amendment to counsel right Const, (amend. 10) initia- at or after 1, only art. 22 attaches § of nontes- Additionally, taking formal charges.6 tion of at is not a critical usually stage timonial evidence physical Therefore, defendant's attaches.7 which the to counsel right merit. Amendment is also without argument Sixth a warrant is suffi remains whether question under the of the arrestee's blood taking cient to allow a search samples of blood taking Fourth Amendment. neither Generally, Fourth Amendment purposes.8 nor the state constitution requires Fourth Amendment an be converted into for a search warrant application rather, it is notice; one held upon adversarial or proceeding is whether ex The narrower question parte proceeding.9 of a blood taking suspect's there is about something deter more than a magistrate's independent which requires there is not. cause. We conclude mination of probable 908, 757, 761, California, 16 L. Ed. 2d 86 S. 1826 v. 384 U.S. 5Schmerber Ct. (1991). (1966) Curran, 174, 186-87, ; v. 116 Wn.2d State (1991); Schulze, Judge, v. 100 P.2d 566 State v. 804 6State (1984). 706, 714, 675 P.2d 219 Wn.2d 227-28, 1149, Wade, 87 S. Ct. 1926 18 L. Ed. 2d 7United States v. 388 U.S. (1967) applies); stage right (taking to counsel see is not a critical at which of blood (because right Schmerber, suspect had no not to submit U.S. at 765-66 also 384 counsel). advice, right regardless attorney's he was not denied blood tests of his California, Judge, supra; 100 Wn.2d at 711. v. 8Schmerber Patterson, P.2d 496 515 9State v. Wn.2d N.J. Super. Morgenthau, relies on In re Defendant 315, 460 A.2d 706 denied, 93 N.J. 472, cert. 303, 457 A.2d order compel a trial court (1983), the court upheld wherein only court held samples. to submit blood ling suspects the minimal invasion trial court order permitting a search warrant. "functional equivalent" was the between difference that the procedural on to note court went are "usually" granted exemplars is that physical the two is ex parte application whereas hearing after notice support does not Morgenthau search usual with warrants. or hearing it does not hold that defendant's as position a issued to obtain being to a warrant required prior notice is 753, Ed. 2d Lee, 470 U.S. 84 L. In Winston v. sample. blood (1985), Court found the State's 662, S. Ct. 1611 105 a removal of a bullet from to allow showing inadequate medical risks chest because the involved procedure suspect's had other evidence. Winston and the prosecution already minor intru such from such distinguished major surgery left Winston taking samples. expressly sions as the of blood it an adversarial which hearing, whether open question is protection", required characterized as "special procedural surg procedure authorization of such an invasive before rationale, unlikely it is highly In of this ery.10 light a an adversarial such proceeding Court would require The Court's discussion of intrusion as a blood test. minor this conclusion. tests in Schmerber supports blood prob- focused on the existence of case law has Washington of warrants autho- considering propriety able cause when other jurisdic- Several samples.11 of blood rizing taking notice to defense coun- rejected argument tions have 662, n.6, Lee, 753, 1611 84 L. Ed. 2d 105 S. Ct. 763 10Winston v. 470 U.S. (1985). 474, 487, Bookman, App. 11See, 682 P.2d review e.g., Wn. State v. 37 Osborne, App. denied, (1984); 569 P.2d 18 Wn. 1002 State v. 102 Wn.2d Curran, denied, 116 (1977), also State v. 1016 See review (1991) argument (rejecting his Const. art. defendant's P.2d 558 Wn.2d objection). his rights was taken over violated when his blood § 7 were necessary prior to issuance of a warrant to obtain a sel is sample blood from defendant.12 parte appli ex of search warrant Given the normal nature authority supporting prob the conclusion that cations, the proper judicial is a criterion for authorization of a able cause sample, Supreme blood and the fact that the Court has found very intrusion, blood tests to be a minimal we conclude that hearing constitutionally neither notice nor an adversarial prior mandated to the issuance of a search warrant to obtain sample suspect. probable a blood from a Since cause is the proper search, for such a is to determination be availed little hearing. any allowing mag event, In if the contested probable subsequently istrate's determination of cause is not upheld, suppressed.13 the evidence will be deny- hold that the trial court was correct in

We therefore ing suppress testing to derived the motion evidence from samples blood taken from defendant.

Issue Three. A motion to sever counts is addressed to the

Conclusion. discretion of the trial court. The court here did sound not denying its discretion in the motion to sever the five abuse counts. argues

Defendant he should have been afforded charged. separate trials on each of the five counts We dis- (in State, 154, spite 308 Ark. 823 S.W.2d 863 of a criminal 12Davasher v. counsel, give procedural requiring rule notice to defense the failure to notice to taking sample defense counsel before a blood from an arrested defendant did not prejudice suppression required), defendant and of the evidence not cert. denied,_U.S._, 571, 112 (1992); Kennison, L. Ct. 2948 v. 119 Ed. 2d S. State (the (1987) 643, granting parte taking 149 546 A.2d 190 ex of an order for the Vt. counsel) sample right (citing of a blood does not violate defendant's to United 1149, Wade, 218, 227-28, (1967)), U.S. 18 L. Ed. 2d 87 S. Ct. 1926 States v. denied, 206, (1988); People Ed. Ct. 1743 cert. 486 U.S. 100 L. 2d 108 S. v. (trial (1977) Pugh, App. court did not err when it 49 Ill. 3d 363 N.E.2d samples any suppress motion to blood taken from him without denied defendant's (1977) Jones, counsel); (any notice defense State v. 279 Or. 566 P.2d 867 obtaining parte error in an ex warrant for a blood test did not involve defend rights). ant's constitutional Patterson, 13See 83 Wn.2d at 53.

agree. recently principles governing This court clarified the Bythrow, severance of similar counts in State v. (1990):

713, 717-18, 4.3(a) permits CrR two or more offenses of similar character joined joined to be in one trial. under properly Offenses CrR 4.3(a), however, may be severed if "the court determines that determination severance will promote a fair of the defendant's 4.4(b). guilt or innocence of each offense." CrR The failure of the that Defendants only trial court to sever counts is upon showing reversible manifest the court's decision awas abuse of discretion. seeking severance have the burden of demonstrat- ing that a trial involving manifestly both counts would be so prejudicial outweigh economy. as to the concern for judicial (Footnotes omitted.) and citations Bythrow, jury's ability

In we considered the to com partmentalize strength evidence, of the State's evi admissibility dence on count, each the issue of cross of the judge jury counts, various whether the instructed separately, strongly weighed decide each count and we judicial economy. concern for present particularly complicated

In case, it was not a keep testimony task to and evidence of the five crimes separate. quite episode Each victim described a different though rapist's even there was much in the methods that was the same. rape, wearing kidnapped

In the first a man a dark ski mask 13-year-old girl birthday party Saturday night, from a on a eyes tape attempted tape covered her with cloth, and her mouth, tied her hands behind her and took her to a trailer put sleeping bag repeatedly raped where he her on a her. knifepoint gun He abducted her at and clicked a while he raped her. rape,

In the second a man with a dark ski mask kid- napped 16-year-old girl gunpoint neighborhood a at from her Saturday night, late on a blindfolded her bandanna, with a put tape raped duct mouth, on her tied her hands and her on sleeping bag wagon. a inside a station rape,

In the third a man with a dark ski mask broke into Friday night, raped the victim's home late on a and her gun. baby. while he clicked a He also threatened to shoot her 538 rape, kid- a dark ski mask

In the fourth a man with Friday napped young a a school field late on a woman from night, bandanna, took her, tied her hands with a blindfolded sleeping put he her on a her to an abandoned house where gun. hitting bag raped a her on the head with her after During crime, a dark ski mask kid- the fifth a man with 17-year-oldgirl night gunpoint, napped blindfolded a late at at gun attempting to bandanna, and clicked a before her with alley. her an admissibility, regard of another to cross evidence With 404(b) identity prove under ER crime is not admissible to unique proof that the the method of both is so unless high probability creates a accused committed one of them or not the method of he committed the other.14Whether committing sufficient to crimes in this case was the five operandi" to make the crimes a "modus constitute such necessarily even admissible, not mandated cross severance is separate they counts The fact that if were not so related. separate proceedings does cross admissible in would not be ground necessarily represent to sever as a a sufficient not matter of law.15 strong For exam- was on each count.

The State's evidence western-style rape, ple, shirt was in the first a sleeve of found and neck when she was found tied around the victim's trailer. In the found in defendant's the rest of the shirt was rape, in defendant's the victim identified a vehicle second piece possession in the back as similar that had a metal Additionally, raped. she tied to when she was the one was tape and duct covered with duct the victim's mouth was piece strips tape, rolled around a cut in which had been In the third in the defendant's house. wood, was found rape, matched DNA defendant's blood the DNA from the rape scene. In the house at the semen found in the victim's kidnapped in a white case, the victim said she fourth (1990). 713, 720, Bythrow, 154 114 790 P.2d v. Wn.2d 14State Markle, Bythrow, 720; P.2d Wn.2d State v. 114 Wn.2d at 15 eyes pickup tied with a bandanna. her hands and and had testimony pickup from his owned a white Defendant head. neighbors on his he often wore bandannas indicated bag sleeping matched the blood Blood found on defendant's injured type crime, was In the fifth defendant victim. attempt shortly hurrying after the into his house seen jerked similarly suspect. A off to the bandanna dressed her and a bandanna head when he left the blond victim's compatible those of the victim was hairs with with blond in found his vehicle. they jurors judge gave told

The trial instructions which separate separately if it were a decide each count must they counts could consider evidence of other trial, and that determining they purpose whether showed for the limited any. plan operation, if a common scheme or or method of only seeking "Defendants severance must not establish joinder produced, prejudicial but effects of have been that joint they that a trial would be so must also demonstrate judicial economy."16 prejudicial outweigh as to concern for particularly "com- that the crimes were not difficult to Given partmentalize", on each count was that the State's evidence jury strong, to con- and that the trial court instructed separately, that the trial court the crimes we conclude sider finding was well within its broad discretion outweigh judicial potential prejudice the concern for did not economy.

Issue Four. discretion in The trial court did not abuse its

Conclusion. reliability challenge admitting to the DNA evidence as the weight particular to the of the evidence this test went admissibility. not to its ruling assigns the trial court's

The defendant error to admitting linking him to the of C.F. DNA17evidence 16Bythrow, 114 at 722. Wn.2d admissibility regarding complete of forensic DNA evi discussion 17Fora Cauthron, proceedings, v. see our recent decision State dence in criminal

Wn.2d Defendant does not raise issues regarding general accep- evidence, tance of forensic DNA the RFLP test or the statis- Rather, tical components of that test.18 defendant argues specific laboratory procedures utilized in this case analyze DNA were so samples flawed human error as to make the results inadmissible as a matter of law.

We recently addressed this issue at in State v. length Cauthron, 879, 120 Wn.2d (1993), 846 P.2d 502 wherein we concluded that both the scientific general theory underlying the forensic use of DNA identification evidence and the RFLP test were in the generally accepted relevant scientific com munities, and hence the test. pass Frye19 We explained once a Frye made, determination is a objection defendant's to the particular testing utilized in a procedures given case should analyzed be under the usual standards for admission Cauthron, 702). of evidence. 120 Wn.2d at (citing 889-90 ER of admissibility expert testimony is evi- governed by dence rule 702: scientific, If technical, specialized or other knowledge will assist the trier of fact to understand the evidence or to deter- issue,

mine a fact in a qualified witness as an knowl- expert 18The defense brief includes a footnote which "refers" this court to trial alerting spillage memorandum. To the extent it is this court to the fact that the mislabeling court, appropriate and errors were issues raised to the trial it is in However, appellate expand scope an brief. such a statement does not the appellate Only assignments review. issues in raised the of error or related issues argued appellate 10.3; 12.1; appeal. and to the court are considered on RAP RAP See, e.g., Hoffman, 51, 71, (1991); RAP 13.7. State v. 116 Wn.2d 804 P.2d 577 Fortun, 754, 756, (1980); Spokane State v. 94 Wn.2d 626 P.2d 504 Howell v. & Empire Bank, 42, 46, (1990); Painting Inland Blood 114 Wn.2d 785 P.2d 815 & Am., Decorating Dist., Ellensburg Contractors Inc. v. Sch. 96 Wn.2d (1982); Cunningham, 638 P.2d 1220 State v. parties expand subject appeal by If this court allowed to the issues to refer- memoranda, Appellate ence to trial the Rules of Procedure would be rendered meaningless. Respondents require response, would have no idea what issues a appellate papers courts would have to search trial court records and clerk's and address all issues raised below. Such an "end run" around the Rules of Appellate sanctioned; primary purpose Procediere will not be the of the rules is scope litigants. to afford fairness and notice of the of review to the court and all (D.C. 1923). States, 19Fryev. United 293 F. 34 A.L.R. 145 Cir. education, skill, may testify there- edge, experience, training, or opinion in of an or otherwise. the form Cauthron, to be in the test 2-part As we explained (1) the witness qualifies under ER 702 is whether applied (2) would be testimony helpful expert expert there the focus of this is appeal; the trier of fact. Part is not witnesses. expert no to the challenge qualifications if court to determine Part 2 is to be the trial applied by in is so flawed as to warrant DNA test case given particular If the trial court shows that a testimony exclusion. before unreliable was so flawed as be given testing procedure are not might they then the results be excluded because to the trier of fact". The issue of human error "helpful under ER 702 and is not laboratory analyzed forensic test which asks if the Frye theory underlying of the part science and the RFLP test are generally accepted relevant scientific is the thresh community. Frye inquiry ER 702 old issue and is to de novo review while the subject to a subject follows after the conclusion and is inquiry Frye different standard of court whereby appellate review accords deference to the discretion of the trial cotut. in the to is to the errors a challenge admissibility

When test, expert testimony the determination of whether given court; the trial unless admissible is within the discretion of discretion, there has been an abuse of this court will not trial court's the of Although possibility disturb the decision.20 human error in the forensic will continue to be laboratory suited to address relevant the trial court is best inquiry, Cauthron, once these factual matters.21 As we explained admissible, to be generally DNA evidence is determined test of a particular then and opponents both proponents information to necessary pre- the gamer should be able there is a the factfinder when sides of the issue to sent both laboratory procedure. the of a validity given challenge Swan, 20Cauthron, 890; 790 P.2d at State v. Wn.2d denied, (1990), 111 Ct. 752 112 L. Ed. 2d S. cert. 498 U.S. 21Cauthron, 120 Wn.2d at 890. present case the case. In the in this

This is what occurred Baird, following Michael the State: testified for scientists Paternity geneticist of Forensic and Ph.D., and Director Stanley Corporation; Ph.D., a Testing Gartler, Lifecodes Washington; University and Lisa of Genetics, of Professor samples in the who tested Bennett, a DNA forensic scientist Libby, Testifying Randall for the were: this case. defense. Department of Genetics Ph.D., a research associate from Seymour Washington, University Geisser, of at University Statistics, of Ph.D., of the School of Director experts jury debate and defense The heard state Minnesota. any testing reliability of and the relevance of the DNA testing procedures. irregularities in the appeal challenge two human on concerns The made here they laboratory and whether in the which occurred errors reliability. particular mis- The defense test's affected this during the test- errors which occurred characterizes the two samples ing. from the taken asserts that semen The defense working proximity spilled crime in "close scene were C.F. support samples The record does not defendant's blood". laboratory the test testified who conducted scientist this. sample portion although from of the semen a small spilled tube, the defendant's out of a test scene was crime spillage sample and was not near the was nowhere blood concerning procedure semen associated with even sample. laboratory supervisor was no also testified there testing reliability spill way as the affected the this days. evidentiary samples The trial different were tested on spill that the no evidence that there was court concluded impugned any or otherwise contamination resulted reliability that there was substantial the test. We conclude mishap support did not that this the conclusion evidence to testing. reliability of the affect the alleges of a there was evidence The defense also compromised autoradiograph the reliabil- which mislabeled by unsupported testing. ity This also is DNA of the copy perma- autoradiograph of the which was One record. wrong initially nylon mislabeled with membrane nent number, but the mistake was detected and remedied. A number of of the same were run of copies autoradiograph test and the mislabeled was not one particular copy offered into evidence. initially

Whether or the mislabeled autoradi spill affected the ograph reliability of the test is a of fact. question infirmities in Alleged usually of a test performance go the weight evidence, of the not to its One admissibility.22 commentator has out that courts should not pointed auto matically exclude scientific evidence whenever the forensic analyst deviates from correct test minor protocol any rather respect; deviation would have to affect materially the test outcome to warrant exclusion.23 While there might be situations where in a irregularities laboratory testing could be procedure the basis for the test excluding results evidence, from which occurred irregularities here do not warrant such exclusion.

We reiterate that forensic DNA identification theory, the RFLP test in are particular, generally in the rele- accepted vant scientific communities of molecular biology and popula- tion genetics and therefore test.24 We conclude pass Frye that the irregularities in the testing procedure out pointed the defense in this case are issues which were properly argued to the factfinder and not such errors as to mandate exclusion of the test results.

Issue Five. The Federal Victims of Crime Act of 1984 does

Conclusion. not preempt Washington state law on the of the discovery records of crisis centers in criminal proceedings. How- ever, the trial court's refusal to in an in engage camera review 22Cauthron, 889-90; Lord, 829, 120 Wn.2d at State v. 117 Wn.2d 822 P.2d 177 (1991), denied,_U.S._, 112, (1992); cert. 121 L. Ed. 2d 113 S. Ct. 164 Com (1991). Phoenix, 408, 421-22, monwealth v. 409 Mass. 567 N.E.2d 23Imwinkelried, The Debate in the DNA Cases Over the Foundation Importance Admission Evidence: The Human Error as a Cause of Scientific (1991). Misanalysis, Forensic 69 Wash. U.L.Q. Cauthron,

24State v. the because records is sustainable the crisis center's rape of materiality. of showing made no threshold defendant in an a motion for trial, counsel made Before defense center counsel- review, of, a crisis discovery rape and camera The motion victims. rape one of the regarding or's notes may which contain details may the "notes only stated to the defense." or otherwise be helpful the accused exculpate to this center responded An for the crisis attorney rape preempted that federal law argued motion and discovery issue. The discovery prosecu- on this state statute applicable the issue of federal center on rape deferred to the crisis tion had that the defendant alternatively argued but preemption, an justify to showing threshold requisite failed to make the statute, 70.125.065. state RCW in camera review under the inspec- for an in camera trial court denied the motion law, and that state that federal law finding preempted tion infor- showing no threshold the defense had made exculpatory. mation be may law,25 the Wash- the federal preempts first ask whether

We of cri- admissibility rape regarding state statute26 ington trial. notes in a criminal counseling sis center state preempt federal law does not we conclude that Since refusal to conduct trial court's law, then ask whether the we violates the victim's records rape in camera review of the an constitu- 70.125.065, or the defendant's statute, RCW state tional rights. are not crisis centers the records of Washington, rape

In cer- case unless in a sexual assault discovery available for provides: are met. RCW 70.125.065 tain conditions made shall not be crisis centers by rape Records maintained in a sex- discovery attorney part any defense available case unless: ual assault (1) made the defendant motion is pretrial A written discovery requesting is that the defendant stating the court records; rape crisis center's 1984, 42 U.S.C. 10604. § Act of 25Victims of Crime Act, RCW 70.125. Assault 26Victims of Sexual (2) or accompanied by is The written motion affidavit why the specifically the reasons setting defend- affidavits forth records; crisis discovery rape center's requesting ant (3) records in crisis center's The court reviews the center's records whether the crisis camera are relevant and whether determine records is of the probative value confidential- outweighed privacy interest by the victim's trauma that taking the further ity of such records into account by the of the may records to the upon the disclosure be inflicted victim defendant; (4) records stating whether the or The court enters an order setting are forth any part of the records discoverable findings. for the court's basis ours.) (Italics and attorney its appeared through

The crisis center rape 10604(d) an absolute establishes 42 U.S.C. argued § 10604(d) 42 for such notes. U.S.C. provides: privilege § prohi- Revealing information; or research statistical immunity legal proceedings; permission; bition; from evidence admission of information as law, Except provided by Federal no officer or otherwise Government, and no of employee recipient of the Federal sums any use or statisti- chapter, under this cal shall or reveal research and chapter by any person furnished under this information any specificprivate person any purpose identifiable to for other information obtained in purpose than for which such chapter. information, any copy accordance with this Such and immune information, legal process such shall be from and of not, furnishing person without the consent of the such shall information, used any purpose be admitted as or evidence action, any proceeding. suit, judicial, legislative, or other or administrative ours.) (Italics statute is one of the admin- This section 1984. of the of Crime Act of provisions istrative Victims seq. U.S.C. et § admissibility discovery rape

Although case law center is a much issue in recent crisis notes debated men nationwide, has located which even no decision been issue. No discovery criminal tions federal this preemption court has any has cited to this court wherein authority been Act preempts Crime of 1984 held that Federal Victims of confidentiality law on criminal issues. discovery state the "research or statisti- that federal act concerns section of cal information famished under this It is not at all chapter." clear that this would include a crisis center's rape counseling fact, in criminal trials. (which

Since we conclude that federal law arguably may an absolute provide privilege against for the records discovery to which it does not applies) preempt Washington discov- statute, ery we need not address the issue of whether Williams, 531, 538, 1012, 27State v. 94 Wn.2d 617 P.2d 24 A.L.R.4th 1191 (1980). Department 697, 702, of Transp., 28Inlandboatmen's Union v. 119 Wn.2d 836 (1990). (1992); Housing Terry, P.2d 823 v. 114 Auth. Wn.2d 789 P.2d 745 Bank, 853, 29PioneerFirst Fed. Sav. & Loan Ass'n v. Pioneer Nat'l (1983). 858, 659 P.2d 481 30Inlandboatmen's, 119 Wn.2d at 702.

547 counseling privilege rape would violate notes absolute provides rights. a Our state statute defendant's constitutional qualified, discovery privilege against absolute, than an rather counseling of and hence the issue care, psy- to and the emergency counseling, access medical and to crime aid necessary report police chological support case is crime.35 At issue in this whether to future prevent will be overcome Washington's legislatively privilege created any showing from accused by demand the without simply of or of the information materiality private at all need in the afforded Victims sought. privilege qualified careful to balance the Assault Act36 reflects a effort Sexual the of the vic- against rights accused's constitutional rights seek at a crisis center to aid counseling rape tim to trauma and the to such dealing rape right expect with the clearly not be made statute counseling public. will make some statement showing that the defendant requires before to counseling a defendant is in why seeking rape camera review of crisis center's records. The statute a motion and requires sup- both porting giving why affidavits reasons specific presump- tively records should be revealed. We therefore privileged conclude that the trial court did not its discretion in abuse to in an in camera review as the declining engage statutory were not fulfilled. requirements

We find no constitutional to this impediment requirement that the defendant make some showing need before these are A presumptively privileged records number inspected.37 of cases in other jurisdictions have considered this issue. In v. 121 Ill. 2d People Foggy, 86, 521 N.E.2d cert. denied, 1047, 628, 486 U.S. 100 L. Ed. 2d 108 S. Ct. 2044 (1988), the Court Supreme of Illinois held that an in camera crisis notes inspection rape by the trial court is not con if stitutionally required a defendant's request merely general not supported by any allegations that informa tion useful to the defense was to in likely be found the files. (Colo.

In Court, 722, 1986), v. District 719 P.2d People 726 the Colorado Court found a trial had in Supreme court erred an in camera granting inspection of assault victim's coun- seling records because the defendant had failed to make any particularized factual of his assertion showing support that access to privileged communication of the victim was necessary effective exercise of his of confrontation. right The court held that assertions that the victim vague may have made statements to her that differ therapist possibly from the victim's trial do not a sufficient testimony provide basis to the victim's to on her justify ignoring right rely statutory privilege. 37 109-10, 342, 97, Agurs, See United States v. 427 U.S. 49 L. Ed. 2d 96 S. Ct. (1976); Ritchie, Mak, 692, 704-05, n.15; 2392 480 U.S. at 59 State v. (the might possibility mere that an item of undisclosed information sense), materiality helped have the defense does not in a constitutional establish denied, 995, 599, (1986); Gonzalez, 110 cert. 479 U.S. 93 L. Ed. 2d 107 S. Ct. 599 (a discovery rights

Wn.2d at 750-51 defendant's available under the federal and showing sought require state constitutions some the information is material defense). 550 484, 367 Pa. Super. v. Kyle,

The court in Commonwealth (1987) Whitaker, v. 202 State 501, 120, (citing A.2d 129 533 (1987)), 1025 271-72, appeal A.2d Conn. of privilege that a claim (1988), states denied, 541 A.2d are reasonable there showing aby be countered may the informa- to produce the failure to believe grounds of confrontation. right the defendant's likely impair tion is (1991), 591 A.2d Vincent, In v. 156 Vt. State correct in the trial court was Court held Supreme Vermont iden- a crisis counselor's refusing compel discovery make had failed to fact that the defendant of the tity light this information why a reason there was showing specific should be revealed. should be privacy victim's conclude that before

We notes that the counseling a review of crisis center invaded that such showing make a particularized defendant must relevant to the defense. to contain material records are likely of showing spe- made no case the defendant In the present fact, In the information. he needed this why cific reasons a fishing was simply whether the request trial court queried facts, difficult to perceive these it is In view of expedition. None of material. exculpatory records could contain that the no so there was saw their attacker the victims ever no allegation There is to be testimony impeached. eyewitness acquaintance even any prior to intercourse or of consent facts no On these and the defendant. the victim between problematic is the trace after crime was More still before or committed. i.e., estimating probability", method "random match theoretical used (or general large person population randomly selected from likelihood that group) genetically as the or match the trace evidence well racial ethnic would defendant: they frequency fail take into important An statistics is that criticism ofDNA computed frequency most population account the of interest. The statistics person compare randomly in some to a selected laboratories the defendant Caucasians). gen- general (e.g., [However] the population American ... North potential may genetic representation source population ofthe eral be a fair not might reasonably population, people the source of group be who recovered trace evidence. Koehler, at 227. notes In regarding victim. in the Code of Federal Regulations to the Victims of Crime Act of 1984 pertaining "research or statistical information" "any is defined as infor- mation which is collected the conduct of a research or during statistical project which is intended to be utilized for 22.2(d). research or statistical 28 C.F.R. purposes." § farther regulations state that "research or statistical infor- mation" identifiable to an individual is immune from judicial 28 C.F.R. proceedings. 22.28. § A court should not infer a reviewing congressional pur- pose state law.27We have preempt recently reiterated that there is a strong presumption against finding congressional intent and a preempt28 finding Congress intended to state law in a preempt given field must be based on an un- ambiguous congressional mandate to that effect.29The party federal law has claiming preempted state law has the bur- den of overcoming presumption against preemption.30 Whether notes of victims fall into the counseling cate- of "research gory or statistical information" referred to in the Therefore, federal statute is given doubtfid. the strong pre- federal sumption against preemption unless such an intent is clear, we decline to conclude that the Federal of Crime Victims Act of 1984 state law preempts statutory regarding discovery

Notes

of center notes crisis discovery constitutionality is not on of an absolute ban recognize Supreme Court31has declined us. before We split is a of author- thus far ity reach this issue and there to jurisdictions.32 in other however, case, The raised in this narrower issue refusing an in trial in to conduct is whether the court erred sup judge's holding alternative to camera review. port trial discovery had motion defense denial of may showing that be not made a "threshold the information agree exculpatory". privacy We that before a victim's infringed, requires a interests our statute defendant to are showing counseling make a of a of records. need for review 70.125, to Act, The Victims of Sexual Assault RCW seeks protect rape expectations privacy of commu- victims' their recognize that nications sexual assault counselors. We with key counseling in the assault element successful sexual confidentiality of their com- victims is the assurance of are com- munications.33We also mindful of the fact that old time mon law rules caused to be victimized second victims years, confronting in the Of course of accused.34 recent legislatures provide rape attempted vic- and courts have rights they privacy realistic tims some so that could have 40, Ritchie, 39, n.14, 31Pennsylvania 57 L. Ed. 2d 107 S. Ct. 989 v. 480 U.S. 94 (1987). 1161, 43 32CompareAdvisory Opinion Representatives, House 469 A.2d to the (R.1.1983) 337, 86, Foggy, People 521 cert. A.L.R.4th with v. 121 Ill. 2d N.E.2d 385 (1988). denied, 108 2044 486 100 L. Ed. 2d S. Ct. U.S. Privileges Applied Rape Note, Existing Confidentiality Vic 33See (1990-91). tims, 5 J.L. & Health 101 (1988); Annot., Gonzalez, Constitution 34State v. Wn.2d Confrontation, ality, Rights Stat Respect or With to Accused's Information Sexual Confidentiality Communications to According to Sex Crime Victim's ute Trial, Counselor, (1986); Berger, Woman's Tribulation: Man's 43 A.L.R.4th Courtroom, Rape L. Cases 77 Colum. Rev.

need for the notes the victim's right is overcome. privacy failure make such a thresh- case, In this the defendant's not court's to conduct showing old trial decision supports provides rape review. RCW 70.125.065 an camera are not available to defense counsel crisis center records (1) (2) made; motion "[t]he motion is written unless pretrial setting or accompanied spe- is affidavit affidavits forth defendant discov- why requesting reasons cifically (italics (3) ours); crisis center's records" ery rape (4) camera; records in the court orders court reviews the discovery. merely In this affidavit the motion accompanying case the indicate to a reports the victim police spoke states what shortly crisis worker after the about details of "notes that the defense believes such attorney happened or may contain details which accused may exculpate If such to the defense". we concluded that helpful otherwise be showing, sufficient to constitute a threshold a statement was such would be in camera always susceptible then records the intent of the review. We do not this have been perceive Act. it the Victims of Sexual Assault passed when Legislature 338-39; 35People Foggy, v. 121 Ill. 2d at RCW 70.125.020. 36RCW70.125. We decline to for "reasons" ignore requirement statute's

notes privileged need for these presumptively of a showing made. our does not sum, preempt that the federal law In we hold of discovery an absolute ban on so as to provide state statute the trial court's records, but we sustain crisis center based for in camera review of defendant's motion denial threshold make the requisite defendant's failure to the upon In records. order the privileged of need to discover showing in an showing justify threshold adequate to make particularized must make a a defendant inspection, camera is to the defense information useful factual showing must determinations records. Such to be found likely court's discretion to the trial initially be left necessarily factually specific inquiries. be they usually will We affirm the convictions. Smith, Guy, Brachtenbach, Dolliver, Durham, JJ., concur. Johnson, — I to reiterate the concerns J. write (concurring) Utter, Cauthron, v. articulated in Justice Dore's dissent State (1993). such time as Namely, Wn.2d until is accu- probabilities statistical technique computing rate to be a consensus in the relevant enough accepted by DNA should not be admitted community, scientific evidence least, At the statisti- very only defendants.38 inculpate cal upon agree, evidence which consensus would experts i.e., most esti- conservative of statistical only probability I mates, be in the presented jury. dispo- should concur case did raise sition of this because the defendant not only DNA forensic evi- issues regarding general acceptance dence of DNA component testing. major- or the statistical See at on Dore ity, 539-40. latter the issue which Justice based his dissent in Cauthron. Reconsideration denied 1993. August attending description problems 38For determina a clear and concise "matches", Koehler, Important tion of see DNA Matches and Statistics: DNA 222, 224 Questions, Answers, Reported matches Surprising 76 Judicature mistakes, may even make and because not be "true" matches because laboratories trace, may innocently left have if the is the source of the the defendant defendant

Case Details

Case Name: State v. Kalakosky

Court Name: Washington Supreme Court

Date Published: May 27, 1993

Citation: 852 P.2d 1064

Docket Number: 56249-1

Court Abbreviation: Wash.