State v. Bass
| Decision Date | 01 June 2021 |
| Docket Number | No. 80156-2-I,80156-2-I |
| Citation | 487 P.3d 936 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Timothy BASS, Appellant. |
PUBLISHED OPINION
¶ 1 In 2019, a jury convicted Timothy Bass of felony murder arising out of the 1989 kidnapping, rape, and death of Amanda Stavik. On appeal, Bass challenges, among other things, the admissibility of DNA evidence linking him to the crime, the constitutionality of charging Bass under a felony murder statute amended after the crime occurred, and the sufficiency of evidence of kidnapping or rape.
¶ 2 Although we conclude the trial court erred in applying a 1990 version of the felony murder statute to this 1989 crime, this error was harmless beyond a reasonable doubt. We reject Bass's remaining arguments and affirm his conviction.
¶ 3 In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County with her college roommate, Yoko, to celebrate Thanksgiving with her family. Stavik and Yoko caught a ride home with Stavik's former boyfriend, Rick Zender, a student at the same college. Zender dropped Stavik and Yoko at home around 2:00 p.m. on Wednesday, November 22, 1989. Later that afternoon, Stavik visited friends at her former high school during the girls' basketball team practice.
¶ 4 On Thanksgiving Day, Thursday, November 23, 1989, Stavik spent the entire day at home with her family. Stavik did not leave the house that day.
¶ 5 On Friday, November 24, 1989, Stavik spent the morning hanging out and eating leftovers with her family and taking a walk with Yoko. Stavik made plans with Yoko to go out that evening with a high school friend, Brad Gorum, and his friend, Tom Bass, Bass's younger brother. Sometime between 2:00 and 3:00 p.m., Stavik decided to go for a run with the family dog, Kyra. According to Mary1, Stavik's mother, she usually ran west from their house on Strand Road, crossed Highway 9, and continued until she reached the south fork of the Nooksack River and then ran back the same route, a five-mile round trip. This path took Stavik past Bass's residence, located on Strand Road, just east of the river.
¶ 6 While there was conflicting evidence as to the route Stavik ran that day, her brother, Lee, who was playing with a friend at a neighboring home, and another eyewitness, David Craker, both saw Stavik running east on Strand Road toward her home around 3:00 p.m. Craker said Stavik was within minutes of her house.
¶ 7 When Lee returned home, however, neither Stavik nor the dog was there. Mary, growing concerned, began calling neighbors and Stavik's friends to see if anyone had seen her. Lee and Mary went out and looked for her on the road, but were unable to find her. Not long after, the dog, Kyra, returned home without Stavik. The dog cowered, with tail tucked, and had river silt covering part of her hind quarters. Gorum, Tom Bass, and Zender showed up to help look for Stavik when they heard of her disappearance.
¶ 8 Around 5:30 p.m. Mary called the police and the Whatcom County Search and Rescue, and Allen Pratt, a human tracker, responded and began a widespread search for Stavik. Pratt found a disturbed spot on the shoulder of the road near the corner close to the Stavik house. There were several footfalls, possibly from two people, which "looked like somebody had been walking or wrestling around or something." The nearby grass also showed signs of disturbance. There was river silt in a nearby ditch, similar to that found on the dog.
¶ 9 On Monday, November 27, 1989, law enforcement found Stavik's naked body in shallow, slow-moving water of the Nooksack River significantly upstream from where Stavik was last seen on Strand Road. Investigators found footfalls and tire tracks in a nearby field, known as the "homestead," a local, isolated hangout for teenagers, but they were unable to determine if these were related to the crime because of the number of people who had been there. They found no other tracks or signs of disturbance near the riverbank where they found Stavik's body. Ultimately, no crime scene was ever located and investigators were unable to conclude where Stavik went into the river.
¶ 10 Stavik was naked except for her running shoes and her body was covered in scratches on her legs, buttocks, and arms. There were more scratches on the front and sides of her legs than on the backs of them. Many of the scratches were parallel, indicating she was in motion when she was scratched, and the overall condition of the scratches suggested they occurred while she was still alive. Whatcom County medical examiner Dr. Gary Goldfogel opined that these scratches were consistent with someone running through brush, such as the blackberry bushes found along the riverbank where her body was found.
¶ 11 Dr. Goldfogel performed an autopsy on November 28, 1989. The autopsy indicated no defensive injuries to her hands, no foreign DNA under her fingernails, and no evidence of strangulation or evidence suggesting she had been bound in any way. There was, however, a blunt force trauma injury to Stavik's right forehead. Dr. Goldfogel testified that the blow to Stavik's head would have caused a significant concussion, but he could not say she necessarily lost consciousness. Dr. Goldfogel opined that the injury happened immediately before or after her death, because "[b]y the time her heart stops and the blood pools, these things don't occur."
¶ 12 Dr. Goldfogel concluded that the cause of death was freshwater drowning. Based on her stomach contents, Dr. Goldfogel estimated she died within three to four hours of her last meal. Stavik's family testified she last ate before she went walking with her roommate, between 11:30 a.m. and 12:30 p.m., on the day she disappeared. The evidence thus suggested she died between 3:30 and 4:30 p.m. on Friday afternoon.
¶ 13 During the autopsy, Dr. Goldfogel found semen in Stavik's vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.
¶ 14 Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample: Eventually, the case went cold.
¶ 15 In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.
¶ 16 In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik's death, Bass acted as if he did not know who she was, "looked up kind of, um, kind of like he was searching his memory" and said "oh, that was the girl that was found in the river." Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample absent a warrant.2
¶ 17 Police contacted Bass again in February 2015 in relation to the Stavik investigation. After the second contact, Bass became anxious and told his brother, Tom, that he was worried because he had had sex with Stavik when she had been home for Thanksgiving in 1989. Tom was shocked and asked Bass how that had happened. Bass said Bass told Tom he and Stavik had slept together a couple times before she had gone off to college as well. Bass asked Tom to tell police that Tom had also slept with Stavik, as if implying that Stavik had "slept around."
¶ 18 Several days later, Bass and his then-wife, Gina Malone, had a conversation with Bass's mother, Sandra. Bass asked Sandra if they could agree to tell the police that Bass's deceased father had killed Stavik. Sandra covered her face with her hands and said "no."
¶ 19 At this time, Bass was working as a delivery truck driver for Franz Bakery. Det. Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store, hoping to obtain company consent to swab the delivery trucks for "touch DNA," or DNA left behind when people touch or use something. Det. Bowhay did not identify the employee he was investigating. Wagner told Det. Bowhay he would need to talk with the corporate offices in order to get permission for any such search and provided him with a phone number for the corporate office. The company refused to give permission to law enforcement to search its vehicles.
¶ 20 Over two years later, in May 2017, Det. Bowhay contacted Wagner again and asked her for the general areas of Bass's delivery route. Wagner asked if he was investigating Stavik's murder. He confirmed he was. She asked if his investigation was related to Bass; he again confirmed it was. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA. Wagner provided Det. Bowhay information regarding Bass's normal route, and Det. Bowhay agreed to update her if he found anything.
¶ 21 Shortly thereafter, Det. Bowhay surveilled Bass as he drove his route, hoping to collect anything Bass discarded, like "cigarette butts, bottles, anything he might have drank from, anything he might have eaten or half eaten and thrown away." He later told Wagner that Bass had not discarded any items. Wagner indicated that she would see if he discarded any items at work, such as water bottles, and asked if that would help. Det. Bowhay said "okay," but told her that he was not asking her to do anything for him.
¶ 22 In ...
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