State v. Floren, 64927-2-I

• Decision Date: 19 December 2011
• Docket Number: No. 64927-2-I,64927-2-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. TRACY JOHN FLOREN, Appellant.

STATE OF WASHINGTON, Respondent,

v.TRACY JOHN FLOREN, Appellant.

No. 64927-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: December 19, 2011

UNPUBLISHED OPINION

Dwyer, C.J. — Tracy Floren was convicted of murder in the first degree while armed with a firearm arising from the shooting death of his wife, Nancy. At trial, the prosecution argued that Floren had staged the scene to convince authorities that a burglar had killed Nancy. Consistent with this theory of the case, a bloodstain pattern analysis expert for the State testified that Nancy was already dead when the home's security alarm was activated. Floren contends that the trial court erred by allowing this testimony without first conducting a Frye hearing.¹ However, because it cannot be reasonably disputed that both the underlying theory and the technique relied upon by the bloodstain pattern analysis expert are generally accepted in the relevant scientific community, aFrye hearing was not required in order to determine the admissibility of the expert's testimony. Floren's other contentions are similarly without merit. Accordingly, we affirm.

I

On September 2, 2007, at 5:52 a.m., ADT Security Services received a "hold-up alarm" from the residence of Tracy and Nancy Floren. King County sheriff deputies arrived at the home at approximately 6:15 a.m. Receiving no response when they knocked at the front door, the officers proceeded to the back of the house, where they found the rear door to the garage to be slightly ajar. The officers entered the garage and then the house through a second door that was closed but unlocked.

Inside the house, in the hallway to the garage, the officers discovered the body of Nancy Floren. She was dressed in a bathrobe, lying on her back, and had been shot twice in the head. A .38 caliber revolver lay on the floor near her right hand. A large pool of blood had formed around her head, which was tilted slightly to the right. A medical aid unit arrived at 6:32 a.m. and immediately pronounced Nancy dead. An officer began photographing the scene shortly after the medics departed.

Tracy Floren, who was not in the house when police arrived, returned to the residence at 7:50 a.m. He explained that he had been attending an Alcoholics Anonymous meeting that was scheduled from 6:30 a.m. to 7:30 a.m.He produced a sign-in record from the meeting, as well as a store receipt for a coffee and a muffin that was time-stamped at 5:24 a.m.² The police, maintaining that Nancy was still alive and at the hospital, interviewed Floren for approximately three hours before telling him that his wife was dead and that he was suspected in her murder. However, it was not until March 7, 2008, approximately six months later, that Floren was arrested. He was charged with murder in the first degree while armed with a firearm.

At trial, the prosecution argued that Floren had staged the murder scene to make authorities believe that a burglar had killed Nancy. Relying on the testimony of Ross Gardner, a bloodstain pattern analysis expert, the State sought to establish that Nancy was already dead when the security alarm was activated at 5:52 a.m. Utilizing photographs taken between 6:30 a.m. and 6:42 a.m., Gardner testified that the extent of coagulation in Nancy's hair and the amount of serum separation in the pool of blood around her head indicated that she had been dead for at least an hour when the photographs were taken. Gardner noted that, although the onset of serum separation can occur as soon as thirty minutes after bloodshed, photographs taken several hours later in the day did not show dramatically more serum separation than was shown in the early morning photographs. To him, this indicated that the blood pool was already in an "advanced stage of serum separation and retraction" when theofficers arrived at the scene. Gardner further testified that a trail of blood running from the gunshot wound at Nancy's right temple, across her forehead, and accumulating in the hair near her left temple, demonstrated that she had originally lain with her head to the left before she was subsequently repositioned and shot again. Based on the amount of clotting observed near Nancy's left temple, Gardner opined that between five and twenty minutes passed between the first and second gunshots.

The defense presented expert testimony from forensic scientist Kay Sweeny to rebut Gardner's opinions. Sweeny testified that there is no reliable basis for determining the timing of an injury based upon the extent of serum separation or blood clotting. However, Sweeny agreed that serum separation may take an hour or more to initiate and that, in a clinical setting, blood clotting typically occurs within three to fifteen minutes.

Several witnesses testified regarding Floren's lack of emotion following his wife's death. Additional witnesses testified that Nancy had expressed frustration about Floren's alcohol abuse and its effect on the couple's marriage.

The jury convicted Floren as charged. His motion for a new trial was denied. Floren was sentenced to 360 months of confinement.

Floren appeals.

II

Floren first contends that the trial court erred by declining to conduct aFrye hearing prior to admitting expert testimony regarding blood clotting and serum separation.³ We disagree.

In order to determine the admissibility of expert testimony based upon novel scientific theories or methods, we have long utilized the "general acceptance" standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).⁴ See, e.g., State v. Copeland, 130 Wn.2d 244, 922 P.2d 1304 (1996); State v. Riker, 123 Wn.2d 351, 869 P.2d 43 (1994). "Both the scientific theory underlying the evidence and the technique or methodology used to implement it must be generally accepted in the scientific community for evidence to be admissible under Frye." State v. Gregory, 158 Wn.2d 759, 829, 147 P.3d 1201 (2006). "'If there is a significant dispute among qualified scientists in the relevant scientific community, then the evidence may not be admitted.'" Gregory, 158 Wn.2d at 829 (quoting State v. Gore, 143 Wn.2d 288, 302, 21 P.3d 262 (2001)). However, "[o]nce a methodology is accepted in the scientific community, then application of the science to a particular case is a matter of weight and admissibility under ER 702, which allows qualified expert witnesses to testify if scientific, technical, or other specialized knowledge will assist the trier or fact."Gregory, 158 Wn.2d at 829-30; see also Anderson v. Akzo Nobel Coatings, Inc., __ Wn.2d __, 260 P.3d 857, 868 (2011) ("[T]he Frye test is not implicated if the theory and the methodology relied upon and used by the expert to reach an opinion on causation is generally accepted by the relevant scientific community.").

Whether a theory or technique has been generally accepted in the scientific community may be determined by several methods. "General acceptance may be found from testimony that asserts it, from articles and publications, from widespread use in the community, or from the holdings of other courts." State v. Kunze, 97 Wn. App. 832, 853, 988 P.2d 977 (1999) (footnotes omitted). Where reasonable dispute exists regarding general acceptance, such acceptance must be established by a preponderance of the evidence at a hearing held pursuant to ER 104(a). Kunze, 97 Wn. App. at 853. However, where general acceptance is not reasonably disputed, no hearing is necessary. Kunze, 97 Wn. App. at 853-54. Where a particular theory or principle has been approved by appellate courts in the past, a hearing is generally unnecessary in later cases, so long as the particular theory or principle at issue is the same as the one previously approved. See, e.g., In re Det. of Thorell, 149 Wn.2d 724, 756, 72 P.3d 708 (2003).

Here, Ross Gardner, the State's bloodstain pattern analysis expert, testified that, in his opinion, Nancy Floren had been shot more than an hourbefore her body was photographed at approximately 6:40 a.m. Gardner based his opinion upon the extent of serum separation in the large pool of blood around Nancy's head and the degree of clotting present in the hair near her left temple. Floren contends that the methodology employed by Gardner does not allow for accurate and reliable predictions and is not generally accepted in the scientific community. Thus, he asserts, the trial court erred by declining to hold a Frye hearing in order to determine the admissibility of Gardner's testimony.⁵

As an initial matter, Floren does not dispute the general acceptance of the scientific theory underlying Gardner's testimony. The mechanisms of blood clotting and serum separation are well-documented in the scientific literature. See, e.g., Stuart H. James, Paul E. Kish & T. Paulette Sutton, Principles of Bloodstain Pattern Analysis: Theory and Practice 188-89 (2005); Tom Bevel & Ross M. Gardner, Bloodstain Pattern Analysis: With an Introduction to Crime Scene Reconstruction 246 (2d ed. 2001).⁶ Instead, Floren asserts that thetechnique utilized by Gardner to reach his conclusions is not generally accepted. However, because blood clotting and serum separation are generally accepted as relevant factors for determining the timing of events at a crime scene, application of the science was properly addressed by the trial court not under Frye but, rather, as a matter of weight and admissibility pursuant to ER 702.

Our Supreme Court has held that blood spatter analysis "hardly qualifies as a novel scientific technique," and that "there is little doubt such testimony is now generally accepted in the scientific community." State v. Roberts, 142 Wn.2d 471, 520-21, 14 P.3d 713 (2000). Although the court's holding in Roberts pertained to an expert's analysis of the spatial distribution of blood, 142 Wn.2d at 481, other jurisdictions have permitted experts to testify regarding the timing of events based on the presence or absence of clotting. See, e.g., State v. Brock, 327 S.W.3d...