State v. Copeland

• Decision Date: 19 September 1996
• Docket Number: No. 62417-8,62417-8
• Court: Washington Supreme Court
• Parties: , 65 USLW 2256 The STATE of Washington, Respondent, v. William COPELAND, Appellant.

Page 244

130 Wn.2d 244

922 P.2d 1304, 65 USLW 2256

The STATE of Washington, Respondent, v. William COPELAND, Appellant.

No. 62417-8.

Supreme Court of Washington En Banc.

Argued Nov. 16, 1995.

Decided Sept. 19, 1996.

Nielsen & Acosta, Eric J. Nielsen, Seattle, for appellant

Norm Maleng, King County Prosecutor, James Whisman, Cynthia Gannett, Regina Cahan, Deputies, Seattle, for respondent.

MADSEN, Justice.

A jury found Defendant William Copeland guilty of first degree premeditated murder and of first degree felony murder predicated on rape in the first or We hold that Frye remains the standard for admissibility of novel scientific evidence in Washington, that the DNA evidence was admissible, and that none of the issues raised by Copeland require reversal of his conviction. We therefore affirm the conviction.

second degree. He raises a number of issues, including admissibility of DNA evidence, alleged destruction of evidence, alleged material omissions from the affidavit in support of a search warrant, alleged violation of the right to counsel under CrR 3.1, and prosecutorial misconduct. His challenge to admissibility of DNA evidence includes claims that admission of expert testimony of statistical probabilities was error because it failed to adequately account for substructuring in human populations, as well as challenges to use of the FBI database for statistical probability estimates. The State argues that the Frye test for admissibility of novel scientific evidence (Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C.Cir.1923)) should be replaced with the test of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

On May 18, 1990, Copeland was released from the King County jail a little after 9 p.m. At the time he had been booked into jail (for an unrelated offense), he was wearing a khaki shirt as shown in his booking photo.

The next day the body of Mary Jo Kizer was discovered by her son when he stopped to check on her at her condominium apartment. She was wearing a terry cloth robe and her body lay in a semi-fetal position just inside her front door. She had bled to death from several stab wounds. She had been beaten in the head, manually strangled, and an earring had been ripped from her ear. She suffered over 70 injuries. Blood spatter evidence indicated she had been attacked on the stairs in her apartment, that she went up to her bedroom where she put her robe on, and then was attacked again near the front door downstairs. She was moved after lying in a pool of her During police investigation of the crime, a neighbor, Connie Taff, reported that she had seen a mulatto man walking outside the victim's apartment at 5:30 a.m. and again at 6:00 a.m. the morning of May 19, 1990. She said he was wearing a long-sleeved khaki shirt and blue jeans. The man turned and looked at her as she drove past, and they made eye contact. Detective Winters of the Kent police assisted Taff in making a composite drawing of the man she had seen using an Identi-Kit. The resulting composite looked like Copeland. Police showed the composite to other neighbors, one of whom said the composite looked like the boyfriend of an acquaintance. The acquaintance, Judy Colbert, was contacted, and she identified the composite drawing as Copeland, who had lived with her up to May 1990 when he was asked to leave because he assaulted her.

own blood for some time. The position of the body indicated a sexual motive for the assault, and the evidence indicated she had been sexually assaulted after she was attacked with a knife but before she was put in the position she was found in. Just before or after she died, she was stabbed, evidently with a barbecue fork.

Later, Taff did not pick a photograph of Copeland out of a photo montage as the man she had seen, but selected a picture of a man who looked like Copeland as most resembling the man she had seen. At trial, she identified Copeland as the man she had seen and testified she was 99 percent certain.

The victim's next door neighbor, Jackie Sawyer, testified to hearing what she thought was a domestic violence fight. She thought she heard a woman being slammed against the wall and crying out. She later heard a dog barking, and looked out her window. She testified she saw a person she thought was a man carrying a small black dog go over the victim's back railing and walk toward the sliding glass doors at the back of the apartment. Sawyer worked with a police artist, and produced a drawing of the person she had seen, which did not look like Copeland.

Sawyer said the person she saw was not Copeland. She did not pick a photograph of Copeland out of a photo montage.

Detective Himple interviewed Copeland, who described drinking at several establishments after being released from jail, and then going home. When shown a picture of Ms. Kizer, he recognized her and said he thought her name was Mary, and that he had met her through a friend about two years earlier. After Himple explained they were investigating Ms. Kizer's murder, Copeland said that after drinking he had gone to Colbert's apartment, but found no one home. He said he was given a ride to Colbert's by a waitress he knew. He told Himple he was wearing a dark brown long-sleeved shirt and showed him such a shirt. It was not the one shown in the booking photograph. While they were talking, Elaine Young, Copeland's girlfriend at the time (they later married), walked into the apartment; Detective Himple almost immediately thought she looked like Sawyer's drawing.

Himple returned to Copeland's apartment about three weeks later, and confronted him with the fact a witness placed him outside the victim's door on the morning of the murder. Copeland said that he had walked past the apartment on his way to a restaurant (this version of events contradicted his earlier account). His account placed him within 60 feet of the victim's front door on the morning of the 19th. During this interview, Copeland was asked to give biological samples, but refused. A month later, Himple returned with a search warrant for biological samples. Copeland again refused to give samples, and was handcuffed and taken to the Kent City jail where samples were obtained.

The biological samples were submitted to the FBI for DNA testing, along with that of five other suspects. Copeland's DNA matched DNA from forensic samples, and the FBI calculated the probabilities of his genetic profile randomly occurring in general populations using a method called the "product rule." The probabilities were 1 in 2.8 million using the B5 Black database, 1 in 2.9 million using Following a lengthy pretrial hearing, the trial court ruled that the DNA evidence was admissible under Frye. Following other pretrial hearings, the trial court denied Copeland's motions to suppress evidence based upon alleged material omissions from the affidavit in support of the search warrant, and upon the alleged denial of the CrR 3.1 right to counsel when the search warrant was executed, as well as his motion for dismissal or suppression of the DNA evidence based upon the FBI's failure to preserve the remaining DNA after testing.

the older B4 Black database, [922 P.2d 1312] and 1 in 3 million in the C4 and C5 Caucasian databases. After testing DNA extracted from the forensic sample, the FBI discarded the remainder of the extracted DNA. The FBI preserved a vaginal wash which included sufficient DNA to test.

At trial the jury heard extensive testimony from both State and defense witnesses about the DNA evidence. In addition to this testimony, which included the FBI's calculated probabilities, plus evidence of the events described above, State's witnesses testified regarding comparisons of Copeland's pubic hair with pubic hair recovered from the victim's body, other blood typing results from samples at the crime scene, blood spatter evidence, non-DNA tests of semen found on Ms. Kizer's robe, and shoe print evidence. Much of this evidence tended to tie Copeland to the crime scene. Fingerprint evidence did not.

Other evidence at trial included testimony of Copeland's cellmates Raymond Counts and Orville Siemering about Copeland's alleged jailhouse confession. Detective Winters testified about use of the Identi-Kit process for generating composites of faces. Copeland also testified in his own defense.

The jury returned a guilty verdict of premeditated first degree murder and felony murder with rape as the predicate felony. The judge imposed an exceptional sentence of 480 months, finding as an aggravating factor that the crime involved deliberate cruelty to the victim.

Direct review of Copeland's appeal was granted by this court.

FRYE

STANDARD FOR ADMISSIBILITY OF NOVEL SCIENTIFIC EVIDENCE

Copeland maintains the trial court erred in ruling that the DNA evidence was admissible at trial under the Frye test (Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C.Cir.1923)). The State argues that the Frye test should be abandoned, and this court should adopt the analysis for admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

This court implicitly adopted the Frye standard for admissibility in State v. Woo, 84 Wash.2d 472, 527 P.2d 271 (1974), and explicitly approved it in State v. Canaday, 90 Wash.2d 808, 585 P.2d 1185 (1978). The rationale of the Frye standard, which requires general acceptance in the relevant scientific community, is that expert testimony should be presented to the trier of fact only when the scientific community has accepted the reliability of the underlying principles. Canaday, 90 Wash.2d at 813, 585 P.2d 1185. "In other words, scientists in the field must make the initial determination whether an experimental principle is reliable and accurate." Id. The Frye standard recognizes that "judges do not have the expertise required to decide...