State v. Carlson, No. 30419-8-II (WA 5/10/2006), 30419-8-II

CourtUnited States State Supreme Court of Washington
Writing for the CourtBridgewater
Docket NumberNo. 30419-8-II,Consolidated with: No. 30435-0-II,30419-8-II
Decision Date10 May 2006

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Unpublished Opinion

No. 30419-8-II
Consolidated with: No. 30435-0-II
Court of Appeals of Washington, Division Two.
Filed: May 10, 2006

Appeal from Superior Court of Pierce County. Docket No: 01-1-03854-2. Judgment or order under review. Date filed: 05/23/2003. Judge signing: Hon. R Worswick Lisa.

Counsel for Appellant(s), William Richard Michelman, Attorney at Law, 7512 Bridgeport Way W # B, Lakewood, WA 98499-8377.

Mary Katherine Young High, Attorney at Law 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.

Counsel for Respondent(s), Donna Yumiko Masumoto, Pierce Co Prosec Atty Office, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.

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Carol Carlson and Daniel Carlson appeal their first degree murder convictions for killing Lisa Carlson, Daniel's wife and Carol's daughter-in-law.1 We hold that Carol's conviction must be reversed for the following reasons: (1) the trial court erred in not suppressing documentary evidence police seized from Carol's house in violation of the Fourth Amendment; (2) the trial court erroneously admitted Daniel's testimonial hearsay statements, violating Carol's Sixth Amendment right to confront witnesses against her; (3) the State failed to prove a conspiracy to justify admitting Daniel's testimonial hearsay as Carol's adoptive admissions; and (4) the trial court erred in admitting Lisa's hearsay statements under the state of mind exception. We hold that the State failed to sustain its burden to show that these errors were harmless beyond a reasonable doubt. But we hold that there was sufficient evidence to sustain a conviction so as not to bar a retrial for double jeopardy purposes.

We also hold that Daniel's conviction should be reversed for the following reasons: (1) the trial court erred in admitting irrelevant entries from notebooks seized from Carol's house; (2) absent proof of a conspiracy, the trial court erroneously admitted Carol's testimonial hearsay in violation of Daniel's Sixth Amendment confrontation rights; (3) the trial court erred in admitting Lisa's hearsay statements under the state of mind exception; and (4) the trial court erred in allowing Lisa's hearsay statement that Daniel was acting `weird and crazy' as it was unrelated to Lisa's state of mind and particularly prejudicial to Daniel. 39 Report of Proceedings (RP) (Mar. 10, 2003) at 4392. We hold that, although there was sufficient evidence to sustain a conviction to permit a retrial, the errors were cumulative and denied Daniel a fair trial. We reverse both convictions and remand for new trials.


Lisa was found murdered in her home on July 18, 1998. After a lengthy three-year investigation, the State charged Daniel and Carol with Lisa's murder. The State's theory at trial was that Daniel and his mother Carol killed Lisa because they were afraid that Lisa was going to leave Daniel and take the couple's two children with her. Specifically, the State alleged that on July 18, 1998, some time between 1:15 and 2:40 p.m., Daniel and Carol shot Lisa three times with a .22 caliber gun, killing her. Daniel then went to work in an effort to establish an alibi. Carol, in the meantime, staged the murder scene to deflect suspicion, tried to further her son's alibi by unsuccessfully attempting to send an e-mail from Lisa's account to indicate she was still alive after Daniel left for work, and attempted to create her own alibi by leaving messages on Lisa and Daniel's answering machine indicating that the two children had wandered up to her

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house after 5:00 p.m. In the process, Carol had to alter the answering machine to delete a message from Lisa's mother, Mrs. Donna Dahm. Then, at 8:00 p.m., Carol paged Daniel at work, asking him to return to check on Lisa. Daniel made sure his co-workers were aware he was leaving, got home around 9:00 p.m., and called 911 to report his wife's death. The State tried the Carlsons jointly and introduced the factual evidence to which we turn.


Lisa and Daniel Carlson married in 1994 and had twin boys in July 1995. In September 1997, in order to save money, Daniel and Lisa began living in a trailer in Kapowsin, 150 yards from Daniel's parents' house. According to Lisa's mother, the marriage was troubled. Mrs. Dahm testified that Lisa and Daniel argued about bills, Daniel's parents, the children, and day care arrangements. Daniel's sister characterized the marriage as `a little rocky.' 31 RP (Feb. 25, 2003) at 3176. Financial difficulties forced Daniel and Lisa to file bankruptcy a few months before Lisa's murder.

Lisa's relationship with Carol was also troubled. Daniel described the relationship between Lisa and Carol as very strained. Carol told police that she and Lisa barely spoke. And Mrs. Dahm testified that Lisa told her that she and Carol fought over how to raise the children, what clothes the children wore, and where Lisa and Daniel kept their money. Mrs. Dahm also testified that Lisa was so insecure that she kept her curtains closed because Carol spied through the windows.

Lisa and Daniel's relationship worsened when Lisa began an extramarital relationship with Shawn McKillop, Daniel's former friend. Daniel was aware of this relationship. By the summer of 1998, Lisa was spending most nights with McKillop. This relationship caused additional tension between Daniel, Lisa, and Daniel's parents. In 1998, Daniel told his co-workers that the marriage was over. And in his statement to police, Daniel admitted that he hated Lisa because she was involved in a sexual relationship with another man.

In November 1997, in recognition of their marital difficulties, Lisa and Daniel signed a separation agreement that McKillop had drafted. The agreement provided that Lisa would care for the children during the day while Daniel worked. His normal shift was from 2:15 to 10:30 p.m. Lisa would arrive in Kapowsin before Daniel left for work and watch the kids until he returned around 11 p.m. Normally, Lisa would then leave and spend the night at McKillop's house.

In February 1998, Carol confronted Lisa and McKillop, stating, `{w}hore, you little bitch. How could you do this to my son?' 35 RP (Mar. 4, 2003) at 3695. Daryl Carlson, Daniel's father, arrived shortly after and assaulted both Lisa and McKillop. As a result, Lisa obtained a restraining order against Daryl.

Both Lisa and Daniel apparently considered the prospect of divorce. In fact, the separation agreement provided that it would be the basis for any divorce settlement. Daniel, with the help of his parents and sister, actively prepared for a divorce. For example, the Carlsons kept a daily journal of Lisa's shortcomings as a parent. The explicit purpose of this daily log was for use in a divorce proceeding. On the night of the murder, Carol admitted to Chief Daniel Hannah of Graham Fire and Rescue that Lisa and Daniel were going through a contentious divorce, acknowledging that she knew a divorce was pending.

Daniel's and Carol's greatest concern regarding the crumbling marriage was that they would lose the children to Lisa. Daniel told his sister that he did not divorce Lisa because he was afraid he would lose the children. He was primarily worried that Lisa would take the children out of state. He felt that, in Washington, the mother usually got custody of the children. The separation agreement reflected this concern, providing that any deviation from the custody arrangement would be `taken as an act of

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subversion/kidnapping.' Exhibit (Ex.) 14. Moreover, Carol told police in her statement that Daniel had contemplated divorce but that Lisa threatened to leave with the children.

Carol shared her concern about losing the children more vividly, telling a co-worker that there was `no way that bitch was ever going to take her children away from her.' 27 RP (Feb. 18, 2003) at 2546. When Carol was unable to locate Lisa and the kids on one occasion, she told Mrs. Dahm that she was going to have Lisa arrested for kidnapping.

The evidence suggested that Lisa was contemplating a permanent separation. Three months before the murder, she told her father, Frank Dahm, that she was planning to divorce Daniel after the bankruptcy proceeding was resolved. The bankruptcy was finalized three days after the murder. Additionally, three days before the murder, Lisa told McKillop's stepsister, Lisa Day, that she wanted out of the marriage and wanted to go to Arizona, where McKillop's father lived, with her children. The day before the murder, Lisa told Ms. Day in a hysterical panicked voice that Daniel was acting `too weird and crazy' and that she needed out of the marriage. 39 RP at 4392. And finally, the day of the murder, Lisa told McKillop that she was leaving Daniel. She told McKillop that after she met with her mother at 3:00 p.m., she was going to meet him and they would leave for Arizona with the children.

Day of Murder

On the day of the murder, Lisa left the children with Daniel in Kapowsin and arrived at McKillop's house at 2:00 a.m. According to McKillop, she had brought her computer to him so he could install some computer upgrades. During that process, he deleted the computer program Netscape. At some point before she left to go back to Kapowsin, Lisa told McKillop of her plan to leave for Arizona.

In Carol's statement to police, she indicated that she was off work on July 18 and visited Lisa and Daniel's house at 10:30 a.m. She told police she was bringing the children milk. Only 30 minutes later, at 11:00 a.m., McKillop related that Daniel called McKillop's house and had a polite conversation with Lisa. Daniel told police that Lisa had asked him to call to be sure she was awake.

McKillop testified that he last saw Lisa alive when she left his house between 12:30 and 12:45 p.m to go to Kapowsin. Given that police determined the...

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