State v. Olsen
| Decision Date | 03 April 2019 |
| Docket Number | 48294-1-II,49554-6-II |
| Parties | STATE OF WASHINGTON, Respondent, v. CHRISTOPHER WILLIAM OLSEN, Appellant. In re the Matter of the Personal Restraint of CHRISTOPHER WILLIAM OLSEN, Petitioner. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
This is a consolidated direct appeal and personal restraint petition (PRP). A jury convicted Christopher William Olsen of two counts of first degree murder and one count of second degree murder. In his appeal, Olsen argues that the trial court erred when it (1) gave an aggressor instruction, (2) denied his pretrial suppression motion, and (3) restricted voir dire. Olsen further argues that (4) the evidence was insufficient to convict him of a vacated first degree murder conviction and (5) the trial court abused its discretion when it allowed extrinsic evidence of a witness's prior inconsistent statement under ER 613(b). Olsen also (6) submits an extensive statement of additional grounds (SAG).[1] In his PRP, Olsen argues that (7) a witness's recantation constitutes newly discovered evidence that merits a new trial.
In Part One, regarding Olsen's direct appeal, we hold that the trial court properly (1) gave the aggressor instruction, (2) denied Olsen's pretrial suppression motion, and (3) allotted voir dire time. Further, we (4) decline to reach Olsen's argument that the evidence was insufficient to convict him of the vacated count, (5) hold that the trial court properly allowed extrinsic evidence under ER 613(b) and (6) reject Olsen's SAG arguments as lacking merit relying on matters outside the record, or are too vague to address. We affirm Olsen's conviction. In Part Two, after a reference hearing regarding the witness's recantation we deny Olsen's PRP.
At approximately 6:00 pm on February 16, 2014, Robert Ward was shot and killed on Canyon Road in Pierce County. Olsen was arrested and eventually charged with first degree premeditated murder, first degree murder under circumstances manifesting an extreme indifference to human life, and second degree felony murder.
At Olsen's trial, the State introduced evidence that Ward had stolen Olsen's rental truck on the day before the shooting. Olsen learned from Presley Lind that her acquaintances, Nathan Stevenson and Joseph Kaplin, knew Ward. According to Lind, at Olsen's behest, she, Stevenson, and Kaplin orchestrated a setup, so that Ward would be waiting at a shopping center on Canyon Road on February 16.
Olsen claimed that he went to the Canyon Road shopping center to recover his stolen belongings from Ward. Olsen brought a firearm with him, pulled up behind Ward's car, and chased after Ward when he fled. When Ward panicked and drove into oncoming traffic, Olsen stopped his truck on the median, turned back toward Ward, aimed, and shot Ward in the head, killing him.
Before trial, Olsen filed a suppression motion, which included arguments about the validity of three "trap and trace" court orders obtained by police and authorizing the use of "pen register" or "trap and trace" devices to target Stevenson's, Lind's, or Olsen's phone number.[2] Clerk's Papers (CP) at 117. Olsen claimed that the trap and trace order that police obtained for Stevenson's phone did not authorize police to use a cell-site simulator ("Stingray") device, that Olsen had standing to contest the Stingray's use, and that "all evidence obtained as a result" should be suppressed. CP at 125, 121, 130. Olsen argued that police illegally located and arrested Stevenson on February 18 using the Stingray device. At the suppression motion hearing, Olsen also argued that because the trap and trace orders were all without respect to geographical limitations, they were all invalid.
In support of Olsen's suppression motion, he relied upon police interviews, affidavits, and the three trap and trace court orders to document the investigation into Ward's death. According to police affidavits, investigators learned that shortly before Ward's death, he had been in contact with Stevenson. Investigators obtained a search warrant for Stevenson's cell phone records. On February 17, police also obtained a trap and trace court order targeting Stevenson's phone number.
On February 18, police located and arrested Stevenson. Stevenson informed police of the involvement of Lind and a man named "Chris." CP at 230. Police located Olsen and subsequently arrested him in Idaho using information provided by his cell phone company under the trap and trace order that targeted his number.
In support of his suppression motion, Olsen also relied upon transcripts of defense interviews with Tacoma and Pierce County detectives. Detectives explained that they had the ability to actively plot the location of a cell phone using a Stingray device. The Stingray narrowed down a cell phone's location from data provided from the phone company; it apparently resembled a "mobile cell phone tower."[3] CP at 203. While investigating Ward's death, detectives deployed the Stingray to locate Stevenson but not to locate anyone else in the case.
The trial court denied Olsen's suppression motion because he lacked standing to contest the Stingray's use to apprehend Stevenson. As for Olsen's argument that the trap and trace orders were all facially invalid, the trial court focused on only the trap and trace order used to apprehend Olsen. The trial court ruled that Olsen did not have a privacy interest in his location.
After swearing in prospective jurors, the parties and the trial court conducted voir dire. The trial court allowed 40 minutes of questioning per party "to begin with." Verbatim Report of Proceedings (VRP) (Sept. 14, 2015) at 351. The trial court cautioned the parties that it would "see where we are after that," and Olsen agreed that this was acceptable to him. VRP (Sept. 14, 2015) at 351.
Olsen questioned the venire about their perceptions of the criminal justice system, focusing on the burden of proof and the right to a jury trial and jury unanimity. After Olsen's time expired, he requested an additional 40 minutes, and the State requested an additional 5 minutes. The trial court granted each side an additional 15 minutes. Olsen then asked the venire about whether a killing could be justified in self-defense and their perceptions about firearms.
When the venire was excused, Olsen moved for a mistrial on the basis that the trial court improperly restricted voir dire. Olsen argued that the trial court never apprised him that his questioning during voir dire would be limited and that without further questioning, he was unable to broach the topic of police witnesses' credibility. The trial court denied the mistrial motion because both sides had adequate time to explore the issues.
At the beginning of trial and over Olsen's relevancy objection, the trial court allowed the State to use one "in-life" photograph of Ward with his family.
Olsen's acquaintances, Douglas Nelson and Lind, and Lind's acquaintances, Kaplin and Stevenson, testified for the State about the events leading up to the shooting. On February 15, the day before Olsen killed Ward, the two met for the first time at Nelson's home. According to Nelson, Olsen and Ward left Nelson's home together. Nelson had previously given Olsen a handgun.
Later that day, Olsen returned to Nelson's home, and Olsen reported that Ward had stolen Olsen's rental truck. Olsen was angry and remained upset despite Nelson's attempts to calm him down. Nelson warned Olsen to be careful because Ward had previously shot and killed someone, had robbed several of Nelson's friends, and carried a loaded handgun.
The next day, Olsen learned from Lind, a woman with whom Olsen used drugs and had a "casual relationship," that her acquaintances, Kaplin and Stevenson, knew Ward. Olsen wanted Lind, Kaplin, and Stevenson to "get [Ward] to meet [them] somewhere," and the four orchestrated a scheme to trick Ward into waiting at a shopping center on Canyon Road, ostensibly to sell drugs to Stevenson's cousin.[4] VRP (Sept. 16, 2015) at 719. Stevenson subsequently met with Ward, who showed his handgun to Stevenson. After this meeting, Stevenson told Lind to warn Olsen that Ward was armed.
Lind went to the Canyon Road shopping center to meet Olsen, who was driving a second rental truck. At the shopping center, Lind pointed out Ward's car to Olsen. Lind then approached Ward's car alone and spoke with Ward.
While Lind spoke to Ward, Olsen drove his truck behind Ward's car. Lind saw two passengers in Ward's car and told Ward that "his friends might want to get out of the car." VRP (Sept. 16, 2015) at 742. Instead, Ward "peeled out" of the parking lot with Olsen pursuing directly behind him. VRP (Sept. 16, 2015) at 743.
Both Ward's passengers, Richard Pederson and Bryant Ward, testified for the State. Pederson, who was sitting in the front passenger seat of Ward's car, testified that he told Ward to leave when Lind warned Ward's passengers. When Ward left, Olsen began firing at Ward's car, and Ward quickly drove from the parking lot to an access road and onto Canyon Road.
At the intersection, Pederson told Ward to turn left onto Canyon Road, but Ward "panicked and took a right and went into oncoming traffic." VRP (Sept. 21, 2015) at 1158. Pederson then realized that Ward had been shot in the head. According to Pederson, Ward was armed with a small handgun, which Ward drew at the intersection of the access road and Canyon Road but never raised above his lap.
Bryant [5] who had been sitting in the...
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