State v. Roberts

Decision Date14 December 2000
Docket NumberNo. 65512-0.,65512-0.
Citation14 P.3d 713,142 Wash.2d 471
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Michael Kelly ROBERTS, Appellant.

Sheryl McCloud, Mair, Camiel & Kovach, Peter A. Camiel, Seattle, Michael Kelly Roberts, Walla Walla, for Appellant.

Norm Maleng, King County Prosecutor, Lee Davis Yates, Deputy, Brian Martin McDonald, Deputy, Seattle, for Respondent.

Carney, Badley, Smith, Spellman, James Elliot Lobsenz, John B. Mitchell, Professor, Seattle, amicus curiae of behalf of WACDL.


Appellant Michael Kelly Roberts (Roberts) was tried, convicted, and sentenced to death for the aggravated premeditated first degree murder of Elijio "Eli" Cantu (Cantu). Roberts was also convicted of first degree felony murder. Roberts appeals his convictions and sentence. We affirm Roberts' first degree felony murder conviction, reverse Roberts' first degree aggravated murder conviction, and vacate the sentence of death.


In 1988, Roberts escaped from a Canadian prison, crossed the United States border, and lived as a fugitive in Washington State. Nearly two years later, Roberts was apprehended when two Seattle area fishermen he had befriended saw information about Roberts' case on a national television program and notified law enforcement of Roberts' whereabouts. Roberts was returned to Canada, but on May 3, 1994, he and fellow inmate Timothy Cronin (Cronin) escaped from the Ferndale Institution, a minimum security facility in Mission, British Columbia, Canada.

After the escape Roberts, with Cronin, returned to Washington. On May 6, 1994, Roberts and Cronin burglarized the residence of Gerald and Evelyn Mee in Edmonds, Washington. Roberts and Cronin stole several items, including a .38 caliber pistol.

Shortly before noon the same day, Roberts and Cronin appeared at Prudent Auto Sales on Ballinger Way Northeast in King County. Roberts spoke with dealership employees Toni Matni and Mike Srour and told the men he was looking for an "old friend" who used to drive a Chevrolet S-10 Blazer. Cantu lived in a small apartment beneath Prudent Auto Sales. Cantu was an associate of the fishermen Roberts had earlier befriended, but was not one of the men who turned Roberts in for the 1988 Canadian prison escape. Roberts knew Cantu had owned a Blazer; Roberts had ridden in the vehicle with Cantu in the past. Roberts had also been to Cantu's apartment in the past. After Toni Matni pointed Roberts in the direction of Cantu's apartment, Roberts and Cronin walked toward Cantu's apartment. According to the dealership employees, Roberts was the person making the inquiries.

At approximately 1:00 p.m., Mike Srour saw Cantu's Blazer leave the area with Roberts behind the wheel and Cronin in the passenger seat. By approximately 9:00 p.m. the same day, Roberts and Cronin had traveled south to Salem, Oregon in Cantu's Blazer. In Salem, the two men robbed the Heliotrope Natural Foods store; Cronin was armed with the stolen .38 caliber pistol. Roberts and Cronin left with about $1,600 cash. Witnesses provided a description of the vehicle, and Oregon police quickly apprehended the two escapees.

Detective James Ragon of the Oregon State Police testified Roberts was cooperative and complied with his commands. Police seized a large amount of cash from Roberts' pocket, a ring he was wearing, his clothing, and his tennis shoes. Roberts also had in his pocket a check deposit slip with Cantu's name and telephone number on it.

After telephone attempts to contact Cantu failed, Oregon authorities asked King County police to visit Cantu's residence. King County police arrived at Cantu's apartment and found a sliding glass door to the back of the apartment unlocked and ajar. In a back hallway of the apartment, the police found Cantu's body tied to a chair. Because the hallway where Cantu was found was narrow, Detective Randy Mullinax, a King County Police Department major crimes investigator, concluded Cantu had been tied to the chair before it was moved into the hallway. The linoleum flooring in the apartment had no scuff or drag marks. At the trial, Cantu's sons testified the chair was usually beside the front door and never in the hallway.

Cantu's hands were each tied separately behind the chair. The rope was then wrapped around a chair leg, stretched under the chair and tied around Cantu's feet in front of the chair. Cantu's mouth was taped shut and a piece of rope was draped over his right shoulder. There was blood from his nose underneath the tape, a small pool of blood beneath the chair, and blood on the right rear leg of the chair.

Cigarette butts were found inside and outside Cantu's apartment; one contained deoxyribonucleic acid (DNA) from saliva. Roberts had the same polymarker typing as that in the DNA sample. At trial, Dr. Thomas Blake, a forensic serologist at Forensic Science Associates, testified that in the Caucasian and Mexican American populations approximately only one in 14,000 individuals has the same polymarker typing as that contained in the cigarette butt. Neither Roberts' nor Cronin's prints were found in Cantu's apartment. Although the State presented substantial evidence of footprints in Cantu's apartment, the footprints were concluded not to match Roberts' footprints.

A spot on the right tennis shoe of Roberts was also discovered. Dr. David Bing, director of clinical testing at the Center for Blood Research Laboratories, first tested the spot in September 1994. Although the test confirmed human DNA was present, Dr. Bing was unable to determine a potential donor of the DNA or whether the spot was human blood. The remainder of the sample was stored in a test tube and frozen in the laboratory. In October 1996, after advances in DNA testing, authorities requested Dr. Bing repeat DNA testing on this sample. Dr. Bing was again able to conclude only that human DNA was present. He could not identify the spot as human blood, nor could he identify any potential DNA donors. In closing, the State urged the jury to draw its own conclusions regarding the spot from Roberts' shoe.

Kerstin Gleim, a forensic scientist with the Washington State Patrol Crime Lab, was called at trial to view a videotape of the crime scene. She had never personally visited the crime scene. Based upon her experience, training, and review of this case's blood pattern and blood deposit materials, Gleim concluded Cantu was bound and bleeding before the chair was moved into the hallway. She based her conclusion on the assumption that two spots on the floor behind Cantu were bloodstains from Cantu. Gleim testified these two spots were not tested with a presumptive test for blood, nor were they tested for species. She further testified the spot pattern was consistent with Cantu being carried by two people while he was in the chair.

King County Chief Medical Examiner Donald Reay testified although Cantu died of massive internal bleeding caused from a single stab wound to the chest and aorta, the ligature around Cantu's neck had been repeatedly tightened and loosened while he was still alive. Dr. Reay identified four abrasions on Cantu's neck. Dr. Reay opined that a ring on the attacker's hand could have caused the abrasions and that the ring seized from Roberts could have caused the marks. Dr. Reay also testified there were no apparent signs of struggle.

Dr. Marie Russell, the only person in the country with dual credentials in emergency medicine and forensic pathology, disagreed with Dr. Reay's conclusions. She testified that for a ring to have cause the abrasions, it would have had to line up perfectly with the ligature line at four different points, four different times. She testified the abrasions appeared where neck muscles naturally stand out and, therefore, the most reasonable explanation for the physical evidence, particularly the abrasions and the ligature mark, was that one person strangled Cantu.

On May 8, 1994, two days after Roberts' and Cronin's capture, Cronin made a tape-recorded statement to two King County Detectives in Oregon. Cronin denied murdering Cantu and claimed Roberts admitted killing Cantu after Cronin had left the apartment. Cronin admitted he and Roberts visited Cantu at his apartment. Cronin alleged that Cantu refused to give Roberts and Cronin a ride to Seattle, and Roberts then suggested binding Cantu to prevent him from calling the police. According to Cronin, Roberts bound Cantu and taped his mouth, and Cantu did not resist. Later in the taped statement, Cronin admitted helping Roberts bind Cantu. Cronin denied seeing a ligature around Cantu's neck. Cronin stated he and Roberts moved Cantu into a corner of the apartment to prevent his detection by others, he then left to get Cantu's truck, and Roberts joined him a short time later. Cronin stated he wiped his fingerprints from Cantu's doorknob after leaving the apartment. Cronin alleged that on the way to Oregon Roberts admitted killing Cantu, putting his finger against Cronin's chest and saying, "I signed it the same way I did my last one." Clerk's Papers (CP) at 2083.

Cronin also allegedly made statements to fellow inmates while held in the Marion County Correctional Facility in Salem, Oregon. Jail inmate Kenneth Houghton made a written statement and would have testified at trial that Cronin said, "I screwed up," and "I don't know why I did what I did." CP at 2061. Inmate Houghton would have further testified that Cronin said he dreamed of his strangulation of Cantu and of Cantu's eyes bulging during the strangulation. Jail inmate Kevin Ives also submitted a written statement and would have testified at trial that he overheard Cronin admit on at least 5 to 10 occasions he would accept responsibility for killing Cantu, and that Cronin admitted murdering Cantu. Jail inmate Michael Tucker made a written statement and would have testified at trial that he heard...

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