21 P.3d 262 (Wash. 2001), 65376-3, State v. Gore

Docket Nº:65376-3.
Citation:21 P.3d 262, 143 Wn.2d 288
Opinion Judge:MADSEN
Party Name:STATE of Washington, Respondent, v. Paul C. GORE, Appellant.
Attorney:George W. Cody, Lynnwood, David William Lee, Edmonds, for Appellant., Jim Krider, Snohomish County Prosecutor, Seth Aaron Fine, Deputy, Everett, for Respondent.
Judge Panel:GUY, GROSSE, JJ.P.T., SMITH, J., JOHNSON, J., IRELAND, J., BRIDGE, J., concur.
Case Date:March 22, 2001
Court:Supreme Court of Washington
 
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21 P.3d 262 (Wash. 2001)

143 Wn.2d 288

STATE of Washington, Respondent,

v.

Paul C. GORE, Appellant.

No. 65376-3.

Supreme Court of Washington, En Banc.

March 22, 2001.

Argued Oct. 19, 2000.

As Amended March 29 and April 6, 2001.

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[143 Wn.2d 292] George W. Cody, Lynnwood, David William Lee, Edmonds, for Appellant.

Jim Krider, Snohomish County Prosecutor, Seth Aaron Fine, Deputy, Everett, for Respondent.

MADSEN, J.

Defendant Paul C. Gore challenges his convictions for two counts of first degree rape and two counts of attempted first degree rape. He contends that he [143 Wn.2d 293] was improperly denied a Franks 1 hearing on the sufficiency of an affidavit in support of probable cause to issue a search warrant for blood and saliva samples, and photographs of the defendant; that the trial court erred in admitting DNA evidence; that the trial court erred in imposing exceptional sentences where the factual basis for imposing exceptional sentences upward was not charged, submitted to the jury, and proved beyond a reasonable doubt; and that the trial court erroneously imposed exceptional sentences based upon victim vulnerability and upon preparation and planning of the offenses. We affirm Gore's convictions and exceptional sentences.

Facts

Defendant was convicted of two counts of first degree rape and two counts of attempted first degree rape. He was acquitted on a third count of attempted rape. The facts are briefly set forth here. Additional facts relating to Gore's challenges will be set forth in the discussion of the issues.

Count 1. On February 17, 1993, A.O., 12 years old, was walking to school on a wooded trail. She saw a man she had seen the day Before . He walked onto the trail, then turned and grabbed her. He dragged her off the trail and raped her. DNA found in semen in A.O.'s underpants was tested by two laboratories, each of which found a match with Gore's DNA. The FBI lab results showed that the likelihood of a random match using restriction fragment length polymorphism analysis was less than 1 in 90 million. The second lab conducted polymerase chain reaction tests, and determined the likelihood of a random match was 1 in 34,000 Caucasian Americans.

Count 2. In February 1994, K.S. was walking to catch a bus to work when she encountered a man on the street. A few days later, on February 11, she encountered the same man wearing a ski mask. He picked her up from behind and carried her into nearby woods. He stuck a knife in her back, [143 Wn.2d 294] and tried to tie her, but she struggled. She was not sure whether he raped her.

Count 4. On April 13, 1995, 14-year-old C.C. was going to school using a trail through woods. A man grabbed her from behind, dragged her off the trail, and raped her. C.C. did not pick Gore's picture out of a photo montage; instead she picked another person. This fact was not included in an affidavit in support of a search warrant issued July 5, 1995.

Count 5. On May 9, 1995, 13-year-old H.L. was walking home on a trail through woods when a man grabbed her, dragged her along the trail and threw her down. He apparently saw some people, and ran off. Kevin Craft lived nearby and at approximately the time of the attack saw a car parked in front of his house that was later traced to Gore.

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He saw a man jump from the car and run into the woods. Mr. Craft did not select anyone from a photo montage in which Gore's picture appeared. This fact was not included in the affidavit in support of the July 5, 1995, search warrant.

The July 5, 1995, search warrant was based upon an affidavit signed by a Lake Stevens officer, but largely prepared by a Snohomish County officer. It authorized the seizure of blood and saliva samples, and photographs of Gore. A second search warrant was issued in December, again based in part on information supplied by the Snohomish County officer. Gore moved to suppress the evidence obtained under both of the warrants on the grounds that the supporting affidavits omitted material facts--including the fact that C.C. picked another person in the photo montage and the fact that Mr. Craft did not pick Gore's picture out of the photo montage. As to the July 5, 1995, search warrant, the trial court, Judge Krese, held that omitted material was not material to the probable cause determination. As to the second search warrant, a different judge, Judge Castleberry, held an evidentiary hearing, at the conclusion of which he found that omitted material was not material and that the omissions were not made deliberately or with reckless disregard for the truth. [143 Wn.2d 295] Both suppression motions were denied. On appeal, Gore challenges the validity of the first search warrant.

A seven-day pretrial hearing was held to determine admissibility of DNA evidence under Frye 2 and ER 702. The trial court ruled that the particular DNA typing techniques used are admissible, and also ruled that the product rule could be used to calculate the probability of a random match in the human population of the genetic profiles detected.

Following Gore's convictions, the trial court imposed consecutive sentences for the offenses as required by RCW 9.94A.400(1)(b) and RCW 9.94A.030(34). 3 The court then imposed exceptional sentences for all of the offenses based upon victim vulnerability due to the small size of the victims, and, in the case of three of the victims, their young age as well, and based upon the defendant's preparation for and planning of the offenses. Gore was sentenced to 228 months on count 1, 204 months on count 4, and 120 months on counts 2 and 5.

Gore's motion for direct review by this court was granted.

Analysis

I. Sufficiency of the affidavit in support of the search warrant.

Gore contends that material facts were omitted from the affidavit in support of the July 5, 1995, search warrant. The July 5, 1995, search warrant for saliva, blood, and photographs of Gore was prepared following a meeting between Detective Terry Deverse of the Everett police, who was investigating the attack on H.L., Officer Ron Brooks of the Lake Stevens police, who was investigating the rape of [143 Wn.2d 296] C.C., and Detective James Scharf of the Snohomish County Sheriff's Office, A.O. and the attack on K.S. The affidavit was signed by Brooks but largely prepared by Deverse, and described the attacks on C.C. and H.L.

Gore contends that two materials facts were omitted from the affidavit 4 : First, that Mr. Craft, the witness who saw a person jump out of a car near the crime scene of the attack on H.L. failed to identify Gore from a photo montage; and second, that victim C.C. selected another person from a photo montage in which Gore's picture also appeared.

A search warrant may be issued only upon a determination of probable cause, which exists when an affidavit supporting the search warrant sets forth sufficient facts to lead a reasonable person to conclude that the

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defendant probably is involved in criminal activity. In re Personal Restraint of Yim, 139 Wash.2d 581, 594, 989 P.2d 512 (1999); State v. Cord, 103 Wash.2d 361, 365-66, 693 P.2d 81 (1985). If a

defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Allegations of negligence or innocent mistake are insufficient. Franks, 438 U.S. at 171, 98 S.Ct. 2674; State v. Garrison, 118 Wash.2d 870, 872, 827 P.2d 1388 (1992). If the defendant makes this preliminary showing, and at the hearing establishes the allegations by a preponderance of the evidence, the material misrepresentation will be stricken from the affidavit and a determination made whether as modified the affidavit supports a finding of probable cause. Cord, 103 Wash.2d at 367, 693 P.2d 81. If the affidavit fails [143 Wn.2d 297] to support probable cause, the warrant will be held void and evidence obtained pursuant to it excluded. Id.

The Franks test for material misrepresentations applies to allegations of material omissions. Cord, 103 Wash.2d at 367, 693 P.2d 81; Garrison, 118 Wash.2d at 873, 827 P.2d 1388. If the defendant makes the required preliminary showing of intentional material omissions or material omissions made with reckless disregard for the truth, and establishes the allegations at a hearing by a preponderance of the evidence, the omitted material is included in the affidavit to make the determination whether the affidavit supports a finding of probable cause. Garrison, 118 Wash.2d at 873, 827 P.2d 1388. If, as modified, the affidavit does not support a probable cause finding, the search warrant is invalid.

The biological samples and photographs named in the search warrant were sought as evidence that Gore committed the crime against C.C. However, the information in the affidavit concerns the crimes against both C.C. and H.L., with the facts tending to show that the same person committed both crimes. Information in the affidavit tended to establish probable cause to believe that Gore was the person who committed the crime against H.L., and, because the affidavit tended to show the same person committed both crimes, that evidence of the crime against C.C. would be found in and on Gore's person.

The affidavit provides that on April 13, 1995, in Lake Stevens, C.C. was walking through the...

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