State v. Kalakosky

• Decision Date: 27 May 1993
• Docket Number: No. 56249-1
• Citation: State v. Kalakosky, 121 Wn.2d 525, 852 P.2d 1064 (Wash. 1993)
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Paul H. KALAKOSKY, Appellant. En Banc

Page 525

121 Wn.2d 525

852 P.2d 1064

STATE of Washington, Respondent, v. Paul H. KALAKOSKY, Appellant.

No. 56249-1.

Supreme Court of Washington,

En Banc.

May 27, 1993.

Reconsideration Denied Aug. 9, 1993.

Paul J. Burns, Spokane, for appellant.

Donald C. Brockett, Spokane County Prosecutor, Clark D. Colwell, Chief Criminal Deputy, Spokane, for respondent.

ANDERSEN, Chief Judge.

FACTS OF CASE

A jury found the defendant Paul H. Kalakosky guilty of four rapes and one attempted rape. Kalakosky appeals these convictions claiming: (1) a search warrant for his residence, trailer and vehicles was not supported by probable cause; (2) the taking of blood samples with a warrant, but without notice and an adversarial hearing, violated his Fourth, Fifth and Sixth Amendment rights; (3) the five counts should have been severed and tried separately; (4) the trial court erred in admitting DNA (deoxyribonucleic acid) evidence which linked him to one of the rapes; and (5) the trial court erred in refusing to conduct an in camera inspection of a rape crisis center counselor's notes.

During an approximate 6-week period of time, four rapes and an attempted rape occurred in Spokane. On November 7, 1987, 13-year-old S.H. was kidnapped by a masked male and taken to a small trailer where he raped her. Sixteen-year-old K.W. was kidnapped and raped on November 29, 1987. On December 5, 1987, 20-year-old C.F. was raped in her home. Twenty-six-year-old L.S. was kidnapped, taken to an abandoned house and raped on December 12, 1987. On December 21, 1987, 17-year-old K.L. was kidnapped and a rape was attempted in an alley. None of the victims were able to identify the masked assailant.

On December 22, 1987, the police obtained a search warrant for defendant's home, trailer and vehicles. After evidence was found tying the defendant to several of the rapes, defendant was arrested and detained on a parole hold. Three warrants were obtained to compel the defendant to supply blood samples for various forensic testing. Initial testing of the semen found in some of the victims showed the rapist was a type A secretor. The test of the defendant's blood showed him to be a type A secretor. A second warrant was issued to obtain a sample of defendant's blood to send to Lifecodes Laboratory for DNA testing. A third warrant was obtained because the earlier sample had clotted, making DNA testing more difficult.

After receiving the DNA testing results, the prosecuting attorney apparently decided not to charge the defendant with the rape of a sixth rape victim as the DNA test was exculpatory. However, the DNA testing linked defendant to the rape of C.F. and criminal charges on the five crimes were filed. Defense counsel moved to sever the counts, suppress the evidence seized in his home, trailer and vehicles and exclude DNA evidence. The trial court held a lengthy Frye ¹ hearing regarding the general acceptance of DNA theory and the restriction fragment length polymorphism (RFLP) laboratory test in the relevant scientific community, and the reliability of the particular test conducted in this case.

The trial court denied all motions to suppress and declined to sever the counts.

Defense counsel also asked the trial court to conduct an in camera inspection of the notes of a rape crisis center counselor who had counseled one of the rape victims. The trial court declined to engage in such an inspection.

At a jury trial, the defendant was found guilty on all five counts.

This court accepted direct review.

Five basic issues are presented.

ISSUES

ISSUE ONE. Was the search warrant for defendant's home and vehicles supported by probable cause?

ISSUE TWO. Is notice to defense counsel and an adversarial hearing constitutionally required before a search warrant may authorize the taking of a sample of blood from one arrested but not yet charged?

ISSUE THREE. Did the trial court err in denying the defendant's motion to sever the counts for trial?

ISSUE FOUR. Did the trial court err in admitting expert testimony regarding DNA evidence?

ISSUE FIVE. Did the trial court violate the defendant's statutory or constitutional rights by refusing to review the rape crisis center's notes involving counseling of one of the rape victims?

DECISION

ISSUE ONE.

CONCLUSION. The search warrant for defendant's home and vehicles was supported by probable cause; the trial court did not err in denying the motion to suppress evidence.

Probable cause is established in an affidavit supporting a search warrant by setting forth facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal activity. ² An affidavit need not establish proof of criminal activity, but merely probable cause to believe it may have occurred. ³ The affidavit is evaluated in a commonsense manner with doubts resolved in favor of validity, and with considerable deference being accorded to the issuing judge's determination. ⁴

In the present case, the affidavit described five rapes or attempted rapes in which the perpetrator used very similar methods of operation. The defendant's physical description was consistent with the descriptions of the rapist provided by the victims.

The affidavit explained that a police officer had observed Kalakosky in a vehicle which matched the description of one of the vehicles described by one of the rape victims. Some of the victims had told police they were assaulted on a sleeping bag and the officer saw sleeping bags on the floor of Kalakosky's vehicle. When the officer questioned Kalakosky, he said he was having car trouble and had walked to his sister's home. However, the officer noted the vehicle started without trouble and the police later learned the suspect did not have a sister.

On a different day, during a "decoy surveillance deployment", the rape task force members noticed Kalakosky slowly cruising the neighborhood of the rapes for approximately 1 hour without any apparent destination. During that time he was observed by members of the surveillance team to be driving very slowly and watching young children. The rape victims were either quite young or very slight and young looking.

The affidavit stated that Kalakosky had a lengthy criminal record. Police knew from files available in the prosecutor's office that he had type A blood and evidence from the rapes showed the rapist was type A.

Immediately after a rape attempt, police observed Kalakosky dressed in dark clothing hurrying into his home. The police also observed a trailer parked outside his home which matched the description given by one of the first rape victims. Also located at his residence were vehicles which generally had been described by various rape victims.

During a motion to suppress, the trial court excluded consideration of one piece of information regarding an anonymous informant's statement that the suspect liked to wear western clothing. The court then concluded that, even disregarding the statement regarding criminal history, the warrant was supported by probable cause.

We agree there was ample information in the affidavit from which the judge could reasonably conclude that Kalakosky probably was involved in criminal activity. We therefore uphold the trial court's denial of the motion to suppress.

ISSUE TWO.

CONCLUSION. A valid search warrant based upon probable cause is constitutionally sufficient to obtain a blood sample from a suspect; no adversarial hearing is necessary prior to the issuance of such a warrant.

After the defendant was arrested, he was detained on a parole hold, and the Spokane County Public Defender's office was appointed as counsel at his initial court appearance the following day. Three different warrants were obtained authorizing the taking of blood samples from defendant. The first warrant clearly established probable cause to justify taking a blood sample from the defendant. The second warrant stated that an additional blood sample was necessary because new physical evidence had been obtained during the rape investigation, i.e. blood on a sleeping bag found in the defendant's vehicle. The third blood sample was required because the first one sent to Lifecodes Laboratory had coagulated and might be difficult to test for DNA identification. All three search warrants were obtained after arrest, but prior to charging.

There is no allegation that these warrants lacked probable cause. Rather, defendant argues he was entitled to a hearing and to notice to his counsel and that a search warrant obtained ex parte is not constitutionally sufficient. He argues that the State should have proceeded under CrR 4.7(b)(2)(vi) which provides that the court, on motion, may require the defendant to permit the taking of blood samples.

The prosecuting attorney argues that the criminal discovery rule, CrR 4.7, does not preempt CrR 2.3 allowing issuance of search warrants based upon probable cause and that an application for a search warrant does not become an adversarial proceeding simply because the subject has been arrested. The trial court reasoned that the criminal discovery rule may be utilized after a proceeding has been initiated; in the investigative stage (while defendant was on a parole hold and not yet charged) a search warrant supported by probable cause was an appropriate vehicle to obtain a blood test. We agree.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court held that a suspect's blood can be taken even without a warrant if exigent circumstances exist. The Court in Schmerber explained that: the taking of blood is commonplace, the quantity taken is minimal and the procedure involves virtually no risk, trauma or pain; the privilege against incrimination is not violated as the evidence is not testimonial or communicative in nature; and there was no violation of the Sixth Amendment right to counsel caused by taking a blood sample in that case.

Since blood tests are not testimonial, d...