State Of Wash. v. Sublett

• Citation: 231 P.3d 231,156 Wash.App. 160
• Decision Date: 29 June 2010
• Docket Number: No. 38034-0-II,38104-4-II.,38034-0-II
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent,v.Michael Lynn SUBLETT, Appellant.State of Washington, Respondent,v.Christopher Lee Olsen, Appellant.

156 Wash.App. 160

231 P.3d 231

STATE of Washington, Respondent,

v.Michael Lynn SUBLETT, Appellant.

State of Washington, Respondent,

v.Christopher Lee Olsen, Appellant.

Nos. 38034-0-II, 38104-4-II.

Court of Appeals of Washington,

Division 2.

May 18, 2010.

As Amended on Reconsideration June 29, 2010.

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Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Seattle, WA, Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellants.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 A jury entered verdicts finding co-defendants Michael Sublett and Christopher Olsen guilty of first degree murder. Sublett and Olsen appeal, asserting that the trial court violated their public trial rights and their right to be present by holding an in-chambers conference to address a question submitted by the jury during its deliberations and that the trial court violated their due process rights by refusing to answer the jury's question.

¶ 2 Additionally, Sublett contends that the trial court erred by refusing to sever the co-defendants' trial and in calculating his offender score. Sublett also contends that the prosecutor committed misconduct in closing argument by misstating the probative value of the deoxyribonucleic acid (DNA) evidence and by showing a photograph of the defendants with the word “guilty” superimposed over their faces. Last, Sublett asserts in his statement of additional grounds (SAG) ¹ that the State committed a Brady² violation by suppressing exculpatory evidence and he raises a number of issues we cannot address in his direct appeal on the record provided.

¶ 3 Olsen also contends that (1) the trial court's felony murder instruction violated his due process rights, (2) his counsel was ineffective for proposing a nonstandard lesser included second degree manslaughter instruction, (3) his counsel was ineffective for not proposing the standard first and second degree manslaughter instructions, (4) the trial court erred by denying his motion for a new trial, (5) the trial court erred by admitting evidence of prior bad acts under ER 404(b), and (6) the trial court violated his due process right to present a defense by excluding relevant admissible evidence. Finding no merit in any of the appellants' contentions, we affirm.

FACTS

Background Facts

¶ 4 In 2005, April Frazier met Jerry Totten at an Alcoholics Anonymous meeting. Totten befriended Frazier and allowed her to stay in a trailer on his property in Tumwater, Washington. He gave Frazier the only key to the trailer; Totten also gave Frazier a key to his house. Totten allowed Frazier's boyfriend, Sublett, to visit freely with Frazier in the trailer and in his house.

¶ 5 In November 2006, Frazier stole coins from Totten and had a friend pawn them for $200. On January 10, 2007, Sublett pawned more of Totten's coins for $115. On January 16, 2007, Sublett pawned Totten's generator for $150. On January 27, 2007, Sublett pawned a second generator belonging to Totten for $234.

¶ 6 Frazier and Sublett traveled together to Reno, Nevada. In late January of 2007, while the couple were in Reno Frazier's friend, Olsen, called her from the Thurston County Jail. Frazier told Olsen that she would bail him out of jail. Frazier called Totten from Reno and convinced him to wire her $500 for nonexistent car repairs. When Frazier and Sublett returned to Washington at the end of January 2007, they visited Totten and stole his wallet, cell phone, and checkbook. On January 29, 2007, Frazier and Sublett bailed Olsen out of jail using $1,000 they had stolen from Totten. Olsen's mother signed the bond.

¶ 7 After Frazier and Sublett bailed Olsen out of jail, the group went to the Little Creek Casino Hotel in Shelton, Washington, and used methamphetamine. Later that same day or the next day, all three went to Totten's home.

¶ 8 On January 30, 2007, Matthew Gantenbein saw a pickup truck over an embankment of Old Olympic Highway in Thurston County. Gantenbein approached the truck and saw that the driver's side door was open, the truck was in neutral, and the engine was running. He did not see anybody in or near the truck. When Gantenbein looked in the canopy of the truck, he saw “a bunch of boxes” and “stuffed animals.” 2 Report of Proceedings (RP) at 72. The Washington State Patrol arrived and impounded the truck.

¶ 9 On February 4, 2007, Tumwater Police Detective Charles Liska responded to a domestic violence incident at a Tumwater hotel room where Frazier and Sublett were staying; Frazier was alone in the room when Liska arrived. Frazier told Liska that Sublett had physically assaulted her over the last few days. Frazier allowed Liska to photograph her injuries but she was otherwise uncooperative and declined medical attention. Liska observed methamphetamine and a butane torch in the motel room but he did not make an arrest.

¶ 10 That same day, Sublett called his friend, Elsie Pray. Sublett told Pray that he and Frazier had gotten into a fight and that he wanted Pray to speak with her. Later that evening, Frazier told Pray that she and two other people had killed Totten on January 29, 2007. According to Pray, Frazier said that she knocked on Totten's door and, when he answered the door, the two others pushed him into a recliner, beat him with a baseball bat, and shot him with her gun. Frazier told Pray that she was in another room of the house listening to music while the two others killed Totten. Frazier told Pray that the group had wrapped up Totten's body, placed it in one of his trucks, and then rolled the truck down an embankment near Mud Bay in Thurston County. Frazier showed Totten's checkbook and driver's license to Pray. On February 10, 2007, Pray contacted the police and reported this conversation.

¶ 11 On February 5, 2007, Frazier and Sublett asked Peter Landstad to loan them his vehicle so they could move into a new residence. Landstad agreed to loan them his vehicle and the couple left Sublett's car with Landstad. Frazier and Sublett did not return Landstad's car on the agreed date and instead called him and offered to buy the vehicle for $2,500. Landstad spoke with Sublett three times about Sublett wiring the money owed to him, but Sublett did not send him any money.

¶ 12 On February 8, 2007, Totten's sister, Shirley Inman, contacted the Tumwater Police Department to request that they perform a welfare check on Totten. Inman was concerned because she had not been able to contact her brother since January 15, 2007, when he had left after visiting Oregon for their mother's 90th birthday. Tumwater Police Officer Tim Eikum went to Totten's house and entered through an open door; Eikum noticed that the house was in disarray, but he did not see any obvious signs that a crime had been committed.

¶ 13 On February 10, 2007, Inman and her mother went to Totten's house to check on him. When they could not find Totten, they called the Tumwater Police Department. Officer Eikum went to Totten's house and saw that nothing had changed since his February 8, 2007 welfare check. Eikum checked to see if Totten had any vehicles registered in his name. Later that evening, Eikum discovered that the Sheriff's Department had impounded Totten's 1989 Ford pickup truck. After receiving a search warrant, Thurston County Sheriff's Deputy Michael Stewart searched the back of the pickup truck and, after removing a number of blankets, saw Totten's body “gagged across the mouth and across the top of the head ... laying [sic] on a picnic table.” 2 RP at 63.

¶ 14 On February 14, 2007, police arrested Frazier and Sublett in Las Vegas, Nevada. In the couple's Suburban, police found Totten's disabled parking placard, a loaded gun, and various items belonging to Totten, including his wallet, checkbook, and social security card. On February 22, 2007, Olympia police officers arrested Olsen. When officers confronted Olsen, he gave them a false name but later he admitted his identity.

¶ 15 Olsen gave law enforcement two statements that were later admitted into evidence at trial. In his statements, Olsen admitted that he had been inside Totten's house and that he had planned to help Frazier and Sublett steal from him, but he denied participating in Totten's murder. Olsen stated that Totten was already dead or fatally injured when he arrived at the house. Olsen also admitted to stealing items from Totten's home and to helping move Totten's body.

Procedural Facts

¶ 16 The State charged Sublett and Olsen with premeditated first degree murder and, in the alternative, first degree felony murder. In exchange for her testimony against Sublett and Olsen, the State allowed Frazier to plead guilty to second degree manslaughter, first degree burglary, and rendering criminal assistance, and it agreed to recommend a 54-month prison sentence.

¶ 17 On January 7, 2008, the State filed a CrR 4.3(b) motion to join the defendants for trial. Sublett opposed the State's motion to join, asserting that the defendants had antagonistic defenses. On May 8, 2008, the trial court consolidated the cases for trial.

¶ 18 A jury trial began on June 2, 2008. At trial, forensic scientist Karen Green testified that she had obtained a partial DNA profile from the handle of a wooden bat found at the crime scene. Green further testified that, based on the partial DNA sample, she could not rule out Sublett and Totten as possible contributors and that one in every 130 individuals in the United States population could be a possible contributor. She also testified that a DNA sample taken from a latex glove found at the scene matched Olsen's profile and that “the estimated probability of selecting an unrelated individual at random from the U.S. population with a matching profile to that glove is one in six quadrillion.” 4 RP at 338. The State also presented evidence that, in the...