In re l Hacheney

• Decision Date: 01 February 2012
• Docket Number: No. 39448–1–II.,39448–1–II.
• Citation: 269 P.3d 397,166 Wash.App. 322
• Parties: In re Personal Restraint Petition of Nicholas Daniel HACHENEY, Petitioner.
• Court: Washington Court of Appeals

166 Wash.App. 322

269 P.3d 397

In re Personal Restraint Petition of Nicholas Daniel HACHENEY, Petitioner.

No. 39448–1–II.

Court of Appeals of Washington, Division 2.

Feb. 1, 2012.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Petitioner.

Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.

PART PUBLISHED OPINION

VAN DEREN, J.

[166 Wash.App. 324] ¶ 1 A jury convicted Nicholas Daniel Hacheney of first degree premeditated murder. In this personal restraint petition (PRP), Hacheney first argues that the trial court violated his Sixth Amendment right to confront witnesses when it admitted a toxicology laboratory report from the Washington State Patrol (WSP) Crime Laboratory and allowed testimony regarding the report without the forensic analyst testifying at trial and being subject to cross-examination. He also asserts that newly discovered evidence of problems at the WSP Crime Laboratory requires vacation of his conviction.

¶ 2 Hacheney also argues that the trial court (1) violated his confrontation clause¹ rights when it admitted the videotaped depositions of three witnesses at trial and violated his constitutional right to a public trial ² when it excluded his father from these witnesses' depositions, (2) improperly commented on the evidence by including the phrase “consciousness of guilt” in its ER 404(b) limiting instruction, and (3) violated his due process rights³ by giving the jury the limiting instruction. Finally, Hacheney argues that both his trial and appellate counsel were ineffective and that cumulative error requires reversal of his conviction. We deny his request for relief.

FACTS

¶ 3 On December 26, 1997, Hacheney left his home early in the morning to go hunting with Phil Martini and Lindsey Latsbaugh. After Hacheney left, his neighbors noticed that the Hacheney home was on fire. The fire damaged the bedroom. Firefighters found Hacheney's wife's body in bed as well as propane canisters and an electric space heater in the bedroom.

¶ 4 Hacheney told investigators that he and his wife, Dawn Hacheney,⁴ had opened Christmas presents, including the propane canisters, the night before and had left the gifts in the room with the wrapping paper in front of the space heater. He said that he had turned on the space heater when he woke up that morning and that Dawn may have failed to escape the fire because she had taken Benadryl during the night.

¶ 5 When Dr. Emmanuel Lacsina, a Kitsap County medical examiner, performed an autopsy on Dawn's body, he found that she did not have soot in her trachea or lungs and that she had pulmonary edema, a condition that can result from congestive heart failure, drowning, a drug overdose, head injury, or suffocation. He also collected blood and lung samples. Dr. Lascina requested a toxicology report after the autopsy results made him “suspicious” that Dawn may have been dead before the fire consumed the Hacheneys' home based on his autopsy results. 5 Report of Proceedings (RP) at 943.

¶ 6 Egle Weiss, a WSP Crime Laboratory toxicologist, tested the blood and tissue samples Dr. Lacsina provided. These tests revealed no carbon monoxide in Dawn's blood and lungs and no propane in her lungs, indicating that Dawn did not inhale after the fire began. Weiss's tests also revealed an elevated level of Benadryl in Dawn's body. But the original police and insurance investigations concluded that Dawn's death was accidental. Based on Weiss's toxicology report, the lack of suspicion of foul play, and other information available at the time, Dr. Lascina concluded that Dawn's larynx had spasmed reflexively during the fire, causing her to suffocate.

¶ 7 In 2001, new facts came to light, causing investigators to take a second look at the circumstances surrounding Dawn's death. Sandra Glass told investigators that she had an affair with Hacheney during the summer and fall of 1997. Glass told investigators that, a few weeks after Dawn's death, Hacheney had told her that God had told him to “[t]ake the land,” ⁵ that he had held a plastic bag over Dawn's head until she stopped breathing, and that he had then started the fire. 12 RP at 2334. Investigators also discovered that, in the months following Dawn's death, Hacheney had sexual relationships with at least three other women. The State charged Hacheney with first degree premeditated murder, alleging that he had committed the murder in the course of first degree arson.⁶

¶ 8 Three months before trial, the trial court granted the State's request to take the preservation videotaped depositions of three witnesses who were planning to be out of the country during the scheduled trial to be used in place of live testimony at trial. The State had all three witnesses under subpoena for trial, but two of the witnesses, a married couple, were moving to Scotland for three years, and the third witness, an electrical engineer, was moving to Bolivia for six months. The State argued, in part, that it would be burdensome for the witnesses to return for trial and that it would be financially burdensome for the State to bring them back for trial. The trial court denied Hacheney's father's request to attend these depositions.

¶ 9 By the time this matter came to trial, Weiss had died unexpectedly and was unavailable to testify about her laboratory analyses, but Dr. Barry Logan and Weiss had both signed her report. Dr. Logan was Weiss's supervisor in 1997, and he testified about the WSP Crime Laboratory's testing procedures for blood and tissue samples. The trial court admitted Weiss's “Death Investigation Toxicology Report,” exhibit 323, over Hacheney's objections. Dr. Lacsina, Dr. Daniel Selove, and Dr. Logan testified at trial. Drs. Lacsina and Selove testified that Dawn had died from suffocation before the fire started and both doctors based their opinions, in part, on Weiss's laboratory report.

¶ 10 At the close of trial, the trial court gave the following limiting instruction with regard to evidence of Hacheney's sexual relationships shortly after Dawn died in the fire:

Evidence has been introduced in this case on the subject of the Defendant's relationships with several women for the limited purposes of whether the Defendant acted with motive, intent or premeditation, or as evidence of consciousness of guilt. You must not consider this evidence for any other purpose.

Clerk's Papers (CP) at 1355. The jury found Hacheney guilty of first degree premeditated murder and found, by special verdict, that he had committed the murder in the course of first degree arson.

¶ 11 On direct appeal, Hacheney raised 29 issues. State v. Hacheney, noted at 128 Wash.App. 1061, 2005 WL 1847160, at *1 (Aug. 3, 2005), aff'd/rev'd in part, 160 Wash.2d 503, 158 P.3d 1152 (2007). Hacheney's arguments included assertions that (1) the evidence was insufficient to support the jury's finding that he committed the murder in the course of first degree arson; (2) the trial court violated his right to confrontation by allowing Drs. Lacsina, Logan, and Selove to rely on Weiss's written laboratory report; (3) the trial court violated his Sixth Amendment right to confront witnesses against him when it admitted the pretrial depositions of three witnesses; (4) the trial court violated his constitutional right to a public trial by not allowing his father to attend the State's depositions of witnesses who were expected to be out of the country during the trial; and (5) the trial court erred by including the phrase “consciousness of guilt” in the limiting jury instruction. Hacheney, 2005 WL 1847160, at *3, 5–7. We affirmed his conviction, rejecting his arguments. Hacheney, 2005 WL 1847160 at *15.

¶ 12 Our Supreme Court reviewed two of the arguments Hacheney had raised here: whether (1) the evidence supported the jury's finding that Hacheney had committed the murder in the course of first degree arson, and (2) the trial court violated his Sixth Amendment right to confront witnesses by admitting the videotaped depositions of the three witnesses at trial. Hacheney, 160 Wash.2d at 506, 158 P.3d 1152. It held that, as a matter of law, Hacheney did not murder his wife in the course of arson and vacated the aggravating factor. Hacheney, 160 Wash.2d at 506, 520, 158 P.3d 1152. Our Supreme Court also held that Hacheney's rights under the confrontation clause were not violated by admission of the videotaped depositions of the three witnesses because the witnesses were unavailable. Hacheney, 160 Wash.2d at 506, 158 P.3d 1152.

ANALYSIS

I. Retroactivity of Confrontation Rights Re Toxicology Report

¶ 13 Hacheney argues that Bullcoming v. New Mexico, –––U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), and Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), establish that the trial court's admission of Weiss's toxicology report and expert testimony relying on it to explain the basis of the experts' opinions violated his confrontation clause rights. Although reexamination of the merits of Hacheney's claim in light of the rapidly-evolving area of confrontation clause jurisprudence in a direct appeal may well reach a different conclusion, ⁷ and that emerging law may change the outcome,⁸ we hold that Washington law precludes retroactive application of Bullcoming and Melendez–Diaz with regard to the admission of Weiss's toxicology report and the expert testimony relying on it in this PRP collateral attack on Hacheney's conviction.

A. Standard of Review

¶ 14 A petitioner may request relief through a PRP when he is under unlawful restraint. RAP 16.4(a)-(c). In order to prevail on a PRP, the petitioner must show that there was a “constitutional error that resulted in actual and substantial prejudice to the petitioner or that there was a nonconstitutional error that resulted in a fundamental defect which inherently results in a complete miscarriage of justice.” In re Pers. Restraint of Woods, 154 Wash.2d...