State v. Giles

• Decision Date: 28 November 2016
• Docket Number: No. 72726-5-I,72726-5-I
• Citation: 196 Wash.App. 745,385 P.3d 204
• Parties: The STATE of Washington, Respondent, v. Danny Ross GILES, Appellant.
• Court: Washington Court of Appeals

196 Wash.App. 745

385 P.3d 204

The STATE of Washington, Respondent,

v.Danny Ross GILES, Appellant.

No. 72726-5-I

Court of Appeals of Washington, Division 1.

FILED: November 28, 2016

Dana M. Nelson, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, Daniel Ross Giles (Appearing Pro Se), Doc # 923602, Clallam Bay Corrections Center, 1830 Eagle Crest Way, Clallam Bay, WA, 98326, for Appellant.

Mary Kathleen Webber, Snohomish County Prosecutor's Office, MSC 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, for Respondent.

Dwyer, J.¶1 Danny Giles appeals from the judgment entered on a jury's verdict finding him guilty of murder in the first degree, committed while armed with a deadly weapon. He asserts that, by excluding evidence of three other suspects who purportedly committed the murder, the trial court deprived him of his right to present a defense. He also asserts that, by contravening a ruling in limine, a witness's testimony denied him his right to a fair trial, notwithstanding that the trial court struck the offending testimony from the record and issued a curative instruction, approved by his counsel, and notwithstanding that his counsel requested no other remedy. Finding no error, we affirm.

I

¶2 Patti Berry, a nude dancer at a nightclub, went missing after leaving work sometime after 1:30 a.m. on July 31, 1995. Her car was found the next day, parked between two moving vans at a nearby car wash. There was a significant amount of blood inside of the car. A search of the surrounding area uncovered a blood-stained pair of jeans and a handbag, both appearing to belong to Berry. The police processed her car, removing, for the purpose of forensic testing, its steering wheel, driver's seat headrest, and a piece of the front passenger seat's fabric containing a bloody handprint.

¶3 Nine days after she went missing, Berry's body was found in a wooded area a few miles from the car wash. An autopsy of the body revealed that the cause of her death was blood loss from 16 to 18 stab wounds. A forensic pathologist's analysis concluded that the rate of decomposition of her body was consistent with death occurring on July 31.

¶4 The police investigation identified several suspects, none of whom were Danny Giles. The police made no arrests. This remained so for many years.

¶5 Periodically, over the next many years, investigators conducted in-depth deoxyribonucleic acid (DNA) testing of the evidence seized. The testing identified a partial match between the DNA of Danny Giles and the DNA samples taken from Berry's jeans and handbag and her car's steering wheel and driver's seat headrest.¹ These matches indicated that Giles could not be excluded as a suspect and, thus, were consistent with a theory that Giles had murdered Berry.

¶6 The DNA profile matches led the police to investigate Giles, uncovering additional evidence that he may have been the killer: he had visited the nightclub where Berry worked on previous occasions, he had poor opinions of sex workers, he sometimes carried a knife, and he lived and worked in the area, frequenting a bar near the car wash where Berry's car was discovered and working for a landscaper near the wooded lot where Berry's body was found.

¶7 During a police interview, Giles initially denied knowing Berry. However, after being confronted with the DNA profile partial matches, he said that it was possible that he had engaged in intercourse with her but could not explain why his DNA would be in Berry's car. In addition, in 2012, a witness, Todd Horton, came forth to claim that in the early morning in question he had seen a man who looked like Giles washing out a car's floor mats, backseat, and trunk, and that the substance being washed out looked murky, like blood.

¶8 Giles was charged with murder in the first degree, committed while armed with a deadly weapon, arising from the death of Patti Berry. Based on a separate investigation, Giles was also charged with murder in the first degree arising from the death of Tracey Brazzel. Prior to trial, Giles moved to sever the murder charges for trial. The trial court granted Giles' motion.

¶9 As part of his defense, Giles sought to present evidence that someone other than him had killed Berry.² In so doing, Giles identified 11 other individuals and sought permission to present to the jury the "other suspect" evidence for each individual. The trial court held hearings over the course of five days regarding the admissibility of this evidence. At the first such hearing, evidence pertaining to five of the individuals identified by Giles was excluded by the trial court when Giles' counsel admitted that he did not have sufficient evidence to warrant presenting any of those individuals to the jury as the true killer. Thereafter, the trial court permitted Giles to introduce evidence of one individual, Bryan Petitclerc, as the perpetrator and excluded evidence pertaining to the remaining five.

¶10 At trial, on the 12th day of the State's case in chief, Giles' attorneys filed a motion in limine regarding the upcoming testimony of Kristopher Kern, the State's expert witness. The State indicated that Kern would testify that he had familiarized himself with the facts of the case and had reviewed the DNA analyses regarding Giles' DNA found inside Berry's car and on Berry's possessions. Based on his expertise and his familiarity with the facts, the State planned to have Kern testify regarding conclusions he had drawn as to the likelihood that Giles had been inside Berry's car and touched those of her possessions found nearby. Giles' motion requested that Kern be limited to testifying that the DNA evidence was "consistent with" the postulation that Giles touched Berry's car and her belongings, not that it was "likely" that Giles did so. The court granted the motion, stating, "I guess I'm a little bit bothered by the term likely. [Kern] could say his opinion, based on everything he reviewed, is this, but I don't think he can quantify it as likely, but you can ask him his opinion, based on what he's reviewed."

¶11 During his testimony, however, Kern, in response to the prosecutor's questions, testified that the DNA evidence established that it was "likely" that Giles was in Berry's car and that it was "likely" that Giles touched some of her belongings. Before the jury, defense counsel objected to each statement, citing a lack of foundation but not referencing the trial court's prior ruling. The trial court overruled each objection.

¶12 Immediately after Kern's second answer, a recess was taken. At this time, defense counsel informed the court that her objections had been based on the trial court's previous ruling. The trial court left the bench to review its notes. Upon returning to the bench, the trial court ruled that Kern's testimony violated its prior ruling. Defense counsel requested that a curative instruction be given to the jury. Defense counsel deferred to the trial court to draft the curative instruction and approved of the curative instruction composed by the court. The trial court inquired as to whether any other matters remained for decision. Defense counsel requested nothing further from the court.

¶13 The jury was brought into the courtroom. The trial court ordered the offending testimony stricken from the record. The curative instruction was then read to the jury.

¶14 After a 15-day trial, the jury found Giles guilty of Berry's murder.

II

A

¶15 Over the course of nearly a century and an intervening United States Supreme Court decision, Washington's "other suspect" evidence rule—applicable to proffered evidence that a specific person other than the defendant committed the charged crime—has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value.

¶16 In State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932), our Supreme Court acknowledged the common law rule. The issue in Downs was whether the trial court improperly excluded evidence that a specific person other than Downs or his codefendant committed the burglary at issue. The defendants sought to present evidence that "Madison Jimmy," a well known safe burglar, was in town on the night in question and planned to argue to the jury that he, not the defendants, stole from the safe. Downs, 168 Wash. at 666, 13 P.2d 1. Upon the State's objection, the trial court excluded the evidence. Downs, 168 Wash. at 666, 13 P.2d 1.

¶17 Our Supreme Court found no error in the trial court's ruling. Noting that the defendants had failed to adduce evidence pointing to "Madison Jimmy" as the burglar, the court cited to the "general rule" of other jurisdictions, requiring that "[b]efore such testimony can be received, there must be such proof of connection with the crime, such a train of facts or circumstances as tend clearly to point out someone besides the accused as the guilty party." Downs, 168 Wash. at 667, 13 P.2d 1 (citing State v. Caviness, 40 Idaho 500, 235 P. 890 (1925) ). The court concluded that "[t]he fact that the so-called ‘Madison Jimmy’ was present in Seattle on the night of the burglary and may have had the opportunity to commit it, does not amount to even a justifiable suspicion that he did so." Downs, 168 Wash. at 667–68, 13 P.2d 1. The proffered evidence, the court observed, "would not create a reasonable inference as to the innocence of appellants." Downs, 168 Wash. at 668, 13 P.2d 1.

¶18 Nearly 70 years later, the United States Supreme Court examined whether a recent modification to South Carolina's common law "other suspect" evidence rule deprived a defendant of his right to present a defense. Holmes v. South Carolina, 547 U.S. 319, 327, 126 S.Ct. 1727, 164 L.Ed. 2d 503 (2006).³ The modified South Carolina rule excluded more evidence than did the common law rule, permitting a trial court to exclude a defendant's "other suspect" evidence when there was sufficiently strong evidence of the defendant's guilt.

Under this

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