State Of Washington V. Alan E. Dean
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Opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86607-9-I (Consolidated with No. 86972-8-I) Respondent,
v. DIVISION ONE
ALAN F. DEAN, UNPUBLISHED OPINION
Appellant.
SMITH, J. — In 2020, law enforcement arrested Alan Dean for
premeditated murder in the first degree for a “cold case” committed in 1993.
Dean asserted an “other suspect” defense at trial. The jury found Dean guilty
and he was sentenced to 320 months. Dean appealed, claiming (1) the trial
court violated his right to due process by admitting his involuntary statements;
(2) the court denied Dean his constitutional right to present a defense; (3) Dean
was denied effective assistance of counsel; (4) the State engaged in
prosecutorial misconduct; (4) the trial court violated Dean’s right to confront a
witness; (5) Dean was deprived of a fair trial due to cumulative error; and (6) the
trial court erroneously entered community custody conditions that exceeded the
statutory maximum. We conclude the trial court did violate Dean’s right to
confront a witness, but because overwhelming evidence of Dean’s guilt existed,
the error was harmless. Because the trial court also erred when imposing the
community custody conditions, we remand to strike the term of community No. 86607-9-I (Consol. with No. 86972-8-I)/2
custody and impose conditions consistent with RCW 9.94B.050(2)(b) but
otherwise affirm.
FACTS
Background
In 1993, M.L. was fifteen years old and lived in Bothell, Washington, with
her mother, Sharon,1 her younger sister, K.L., and her mother’s fiancé, Gary
McClellan. On the evening of April 13, 1993, M.L was home alone with plans to
have a friend spend the night. M.L. spoke with her mother on the phone around
9:30 p.m. and said everything was fine. When Sharon and McClellan returned
home around 2 a.m., they found the door kicked in, the house in disarray, and
M.L. missing. Sharon later indicated that she did not immediately call police
because M.L. had run away in the past. The next afternoon, around 1:45 p.m.,
Sharon became worried about M.L. and called law enforcement to report her
missing. That same afternoon, April 14, 1993, M.L.’s body was found below the
Edgewater Creek Bridge in Everett.
On the morning of April 15, 1993, law enforcement went to Sharon’s
house to take statements from Sharon and McClellan and conduct a search of
the house. By that time, Sharon had cleaned the house. In M.L.’s bedroom,
detectives found a day calendar in the trash. An entry on March 14, 1993, read
“Met Alan on Nightline[2] over the phone.” Entries on March 15 and 16 indicated
1 To protect the identity of the victim, we use Sharon’s first name only. 2 Nightline was “a chat line where people could talk to strangers in an anonymous fashion, leading to potentially meeting up in-person.” M.L.’s friends confirmed that M.L. was a user of the service.
2 No. 86607-9-I (Consol. with No. 86972-8-I)/3
M.L had met with Alan in person.
The day planner also included phone numbers for “Michael” and
“Nightline.” On May 18, Detective Greg Rinta called the phone number for
Michael. The man who answered identified himself as Alan and said no one
named Michael was associated with that number. Alan agreed to speak with
Detective Rinta. Detective Rinta met with Alan—later identified as the defendant
Alan Edward Dean—at his home, which was less than four miles from where
M.L.’s body was found. Detective Rinta showed Dean a picture of M.L., and
Dean recognized M.L. as someone he had met through Nightline and dated
“once or twice” in March 1993. Dean told Detective Rinta that he went by the
name “Mike” when using the chat line. Dean denied ever having sex with M.L.
Law enforcement also interviewed T.P., who dated M.L. for about a year
around the time of her death.3 At the time of M.L.’s death, T.P. was 16 years old
and lived in Edmonds with his family. On the night M.L. disappeared, M.L. and
T.P. argued on the phone. T.P. told M.L. she was “marked.”4 T.P. was a person
of interest, but law enforcement did not have enough evidence to arrest him.
DNA and Arrest
In April 1993, Dr. Eric Kiesel conducted a formal autopsy on M.L.’s body.
Dr. Kiesel detected an odor consistent with ether coming from her body.5 Greg
3 The record is unclear about when exactly T.P. and M.L. broke up. 4 According to T.P., “marked” meant “threaten to kill somebody or something.” 5 Ether is a hydrocarbon compound that was used as a general
anesthetic until the early 1960s. It is now primarily used as a carburetor cleaner.
3 No. 86607-9-I (Consol. with No. 86972-8-I)/4
Frank, a forensic scientist, performed testing on stains extracted from M.L.’s
shorts and underwear. The stains tested positive for blood and trace amounts of
acid phosphates,6 but negative for spermatozoa. This was the extent of testing
done in 1993.
In 2001, Frank tested the stains for DNA. One of the stains contained
DNA from two sources—one was M.L. and the other was an unknown male. The
unknown male source was run through the Combined DNA Index System
(CODIS), a state and national DNA profile repository. At the time, the database
included the DNA profile of M.L.’s on-and-off boyfriend, T.P. No matches to any
profiles stored in CODIS, which included T.P.’s, were returned.
In 2019, detectives employed genetic genealogy testing to compare the
DNA found on M.L.’s clothing to DNA profiles in a publicly available database.
From this process, detectives identified Dean as a potential source of the DNA.
The Snohomish County Sherrif’s Department attempted to get a sample of
Dean’s DNA via a covert operation.
Undercover officers went to Dean’s house posing as market researchers
sampling chewing gum. Dean engaged with the “researchers” and tried the gum,
but he did not allow them to take his used sample. He asked the officers, “You’re
not trying to collect my DNA; are you?” Dean was pleasant during the interaction
and was able to articulate his position clearly. The detectives noted Dean made
various anti-government statements, including telling the officers he was aware
6An acid phosphate test can detect the presence of some liquids, such as semen and vaginal fluids.
4 No. 86607-9-I (Consol. with No. 86972-8-I)/5
that government agents might attempt to obtain DNA samples and alluding to the
officers being “dark agents of the State.” The detectives believed his views were
extreme, but not outlandish. At no time did Dean indicate he was unwilling to talk
to them.
Detectives continued to surveil Dean, and in April 2020, they collected a
cigarette that Dean had discarded on the roadway near his home. The DNA on
the cigarette matched the unidentified male DNA on M.L.’s clothing.
Law enforcement arrested Dean in July 2020. Dean cooperated with the
officers, but stated, “I’m not going to enter into any contract,” and told the officers
they were interfering with interstate commerce. Based on Dean’s comments, the
arresting officer believed Dean was a proponent of the sovereign citizen
movement.7 After the arrest, detectives searched the home where Dean lived.
In the garage, detectives found several items containing ether and heptane.8
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86607-9-I (Consolidated with No. 86972-8-I) Respondent,
v. DIVISION ONE
ALAN F. DEAN, UNPUBLISHED OPINION
Appellant.
SMITH, J. — In 2020, law enforcement arrested Alan Dean for
premeditated murder in the first degree for a “cold case” committed in 1993.
Dean asserted an “other suspect” defense at trial. The jury found Dean guilty
and he was sentenced to 320 months. Dean appealed, claiming (1) the trial
court violated his right to due process by admitting his involuntary statements;
(2) the court denied Dean his constitutional right to present a defense; (3) Dean
was denied effective assistance of counsel; (4) the State engaged in
prosecutorial misconduct; (4) the trial court violated Dean’s right to confront a
witness; (5) Dean was deprived of a fair trial due to cumulative error; and (6) the
trial court erroneously entered community custody conditions that exceeded the
statutory maximum. We conclude the trial court did violate Dean’s right to
confront a witness, but because overwhelming evidence of Dean’s guilt existed,
the error was harmless. Because the trial court also erred when imposing the
community custody conditions, we remand to strike the term of community No. 86607-9-I (Consol. with No. 86972-8-I)/2
custody and impose conditions consistent with RCW 9.94B.050(2)(b) but
otherwise affirm.
FACTS
Background
In 1993, M.L. was fifteen years old and lived in Bothell, Washington, with
her mother, Sharon,1 her younger sister, K.L., and her mother’s fiancé, Gary
McClellan. On the evening of April 13, 1993, M.L was home alone with plans to
have a friend spend the night. M.L. spoke with her mother on the phone around
9:30 p.m. and said everything was fine. When Sharon and McClellan returned
home around 2 a.m., they found the door kicked in, the house in disarray, and
M.L. missing. Sharon later indicated that she did not immediately call police
because M.L. had run away in the past. The next afternoon, around 1:45 p.m.,
Sharon became worried about M.L. and called law enforcement to report her
missing. That same afternoon, April 14, 1993, M.L.’s body was found below the
Edgewater Creek Bridge in Everett.
On the morning of April 15, 1993, law enforcement went to Sharon’s
house to take statements from Sharon and McClellan and conduct a search of
the house. By that time, Sharon had cleaned the house. In M.L.’s bedroom,
detectives found a day calendar in the trash. An entry on March 14, 1993, read
“Met Alan on Nightline[2] over the phone.” Entries on March 15 and 16 indicated
1 To protect the identity of the victim, we use Sharon’s first name only. 2 Nightline was “a chat line where people could talk to strangers in an anonymous fashion, leading to potentially meeting up in-person.” M.L.’s friends confirmed that M.L. was a user of the service.
2 No. 86607-9-I (Consol. with No. 86972-8-I)/3
M.L had met with Alan in person.
The day planner also included phone numbers for “Michael” and
“Nightline.” On May 18, Detective Greg Rinta called the phone number for
Michael. The man who answered identified himself as Alan and said no one
named Michael was associated with that number. Alan agreed to speak with
Detective Rinta. Detective Rinta met with Alan—later identified as the defendant
Alan Edward Dean—at his home, which was less than four miles from where
M.L.’s body was found. Detective Rinta showed Dean a picture of M.L., and
Dean recognized M.L. as someone he had met through Nightline and dated
“once or twice” in March 1993. Dean told Detective Rinta that he went by the
name “Mike” when using the chat line. Dean denied ever having sex with M.L.
Law enforcement also interviewed T.P., who dated M.L. for about a year
around the time of her death.3 At the time of M.L.’s death, T.P. was 16 years old
and lived in Edmonds with his family. On the night M.L. disappeared, M.L. and
T.P. argued on the phone. T.P. told M.L. she was “marked.”4 T.P. was a person
of interest, but law enforcement did not have enough evidence to arrest him.
DNA and Arrest
In April 1993, Dr. Eric Kiesel conducted a formal autopsy on M.L.’s body.
Dr. Kiesel detected an odor consistent with ether coming from her body.5 Greg
3 The record is unclear about when exactly T.P. and M.L. broke up. 4 According to T.P., “marked” meant “threaten to kill somebody or something.” 5 Ether is a hydrocarbon compound that was used as a general
anesthetic until the early 1960s. It is now primarily used as a carburetor cleaner.
3 No. 86607-9-I (Consol. with No. 86972-8-I)/4
Frank, a forensic scientist, performed testing on stains extracted from M.L.’s
shorts and underwear. The stains tested positive for blood and trace amounts of
acid phosphates,6 but negative for spermatozoa. This was the extent of testing
done in 1993.
In 2001, Frank tested the stains for DNA. One of the stains contained
DNA from two sources—one was M.L. and the other was an unknown male. The
unknown male source was run through the Combined DNA Index System
(CODIS), a state and national DNA profile repository. At the time, the database
included the DNA profile of M.L.’s on-and-off boyfriend, T.P. No matches to any
profiles stored in CODIS, which included T.P.’s, were returned.
In 2019, detectives employed genetic genealogy testing to compare the
DNA found on M.L.’s clothing to DNA profiles in a publicly available database.
From this process, detectives identified Dean as a potential source of the DNA.
The Snohomish County Sherrif’s Department attempted to get a sample of
Dean’s DNA via a covert operation.
Undercover officers went to Dean’s house posing as market researchers
sampling chewing gum. Dean engaged with the “researchers” and tried the gum,
but he did not allow them to take his used sample. He asked the officers, “You’re
not trying to collect my DNA; are you?” Dean was pleasant during the interaction
and was able to articulate his position clearly. The detectives noted Dean made
various anti-government statements, including telling the officers he was aware
6An acid phosphate test can detect the presence of some liquids, such as semen and vaginal fluids.
4 No. 86607-9-I (Consol. with No. 86972-8-I)/5
that government agents might attempt to obtain DNA samples and alluding to the
officers being “dark agents of the State.” The detectives believed his views were
extreme, but not outlandish. At no time did Dean indicate he was unwilling to talk
to them.
Detectives continued to surveil Dean, and in April 2020, they collected a
cigarette that Dean had discarded on the roadway near his home. The DNA on
the cigarette matched the unidentified male DNA on M.L.’s clothing.
Law enforcement arrested Dean in July 2020. Dean cooperated with the
officers, but stated, “I’m not going to enter into any contract,” and told the officers
they were interfering with interstate commerce. Based on Dean’s comments, the
arresting officer believed Dean was a proponent of the sovereign citizen
movement.7 After the arrest, detectives searched the home where Dean lived.
In the garage, detectives found several items containing ether and heptane.8
Officers transported Dean to the Sherrif’s Office, where he met with
detectives in an interview room. Detectives read Dean his Miranda9 rights and
asked if he understood. Dean replied, “No.” The detectives asked Dean what he
did not understand and how they could help him understand. Dean repeated the
following statements after each inquiry: “I decline any and all offers of contract,
and I don’t concede to any presumptions,” and “I comprehend you’re just trying to
7 Sovereign citizens believe they are exempt from federal, state, and local laws. 8At the time, Dean rented a room in a house, and the garage was a shared living space. 9 Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
5 No. 86607-9-I (Consol. with No. 86972-8-I)/6
do your job, but I can’t make any legal determinations on any of the questions
that you’re asking me.” Detectives informed Dean that he had been arrested for
murder in the first degree and kidnapping in the first degree arising from a 1993
case. The detectives let Dean know they were going to take a DNA sample,
advised him that the room was being recorded, and then left to gather the
materials needed to collect a sample of his DNA. After the detectives left the
room, Dean whispered, “I knew that’s what this is about.” Then he looked at the
ceiling and said, “I’m sorry.”
The DNA obtained from Dean after his arrest was compared with the DNA
found on M.L.’s clothing. While another male’s DNA was detected in trace
amounts in one of the blood stains on M.L.’s shorts, Dean’s DNA matched every
sample taken from M.L.’s clothing from which scientific comparison could be
conducted, including the stain found on M.L.’s underwear. Dean did not rebut
the DNA evidence at trial, but he did elicit testimony from Frank that DNA,
including DNA deposited by semen, could remain on clothing through up to six
wash cycles.
Competency
After detectives received a DNA sample from Dean, he was transported to
the Snohomish County Jail for booking. During the booking process, a nurse
reported Dean was “alert and oriented times four with no acute distress.” The
next day, a mental health professional (MHP) met with Dean and noted Dean
was “curled up in his blanket . . . look[ing] around the room and would not really
engage with [me].” Dean made several incoherent statements and declared he
6 No. 86607-9-I (Consol. with No. 86972-8-I)/7
had “been tortured because [he doesn’t] want to say what they wanted [him] to
say.” At Dean’s arraignment on August 18, 2020, the court expressed concern
about Dean’s mental competency. The State asserted, “It doesn’t appear to me
that this is a situation where the defendant does not understand. It’s more of a
situation where he protests and refuses to acknowledge.” The court disagreed,
noting Dean did not “seem to be tracking,” and ordered a competency evaluation.
Dean refused to meet with the evaluator. At a subsequent hearing, the
State recommended that Dean be transported to Western State Hospital (WSH)
so he could be evaluated under 24/7 care. Dean remained at the jail until
September 22, 2020, when the jail called a medical emergency because Dean
was “hard to get to respond and his color was grey blue.” The jail sent Dean to a
local hospital where a clinician noted Dean was having paranoid ideation about
food and had not eaten in several days. Several days later, a provider at the
hospital relayed to the jail that Dean’s condition had improved, and they did not
believe psychiatric intervention was warranted at that time. Dean returned to jail.
On October 6, 2020, Dean screamed at a jail nurse and claimed the
medications were poisoning him. Two days later, Dean was admitted to WSH for
a competency evaluation. Dean was uncooperative in the interview, and when
told his attorney would be present, Dean stated, he’s “not [my] attorney. . . . He’s
posing, he’s a pretender.” Dean’s competency evaluation stated that, “although
some of his beliefs may be tied to anti-government conspiracy theories or
ideologies, his thought processes are notably disorganized and tangential.”
Additionally, the evaluation noted that Dean was “paranoid upon evaluation,
7 No. 86607-9-I (Consol. with No. 86972-8-I)/8
guarded to give information, and delusional.” The evaluation concluded by
stating Dean’s “diagnostic picture remains relatively unclear,” but offered a
diagnosis of “Unspecified Schizophrenia Spectrum Disorder . . . as well as an
Unspecified Personality Disorder, with Antisocial and Paranoid Traits.” Dean
was deemed not competent to stand trial.
In November 2020, the court held a Sell10 hearing and concluded Dean
could be forcibly medicated. Dean remained at WSH for almost two years, a
period which included two competency restorations followed by a civil
commitment. During this time, Dean’s evaluations varied concerning the etiology
of his symptoms: [S]ome providers not[ed] his symptoms were consistent with a schizophrenia spectrum disorder, other providers noting his presentation was consistent with a personality disorder and beliefs consistent with sovereign citizenship, and other providers conceptualizing the etiology of his symptoms and behaviors as both schizophrenia and a personality disorder, and with one forensic evaluator providing a diagnosis of schizophrenia and rule-out of neurocognitive disorder.
In August 2022, WSH discharged Dean, and he returned to the Snohomish
County Jail. In February 2023, Dean participated in a neuropsychological
evaluation, and it was determined Dean did “not appear to be encephalopathic11
at [the] time as he did not present as confused and he was fully oriented.”
Subsequently, the court ordered another competency evaluation, and Dean was
deemed competent to stand trial.
10 Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003). 11 “Encephalopathic” refers to a state or condition in which the brain is
affected by disease, damage, or dysfunction, leading to altered mental function.
8 No. 86607-9-I (Consol. with No. 86972-8-I)/9
Motions in Limine
1. Statements by Dean
In February 2024, the court held a CrR 3.5 hearing to determine whether
statements made by Dean during the gum ruse, his arrest, and post-arrest
interview were admissible. The court concluded that all statements were made
voluntarily and free of coercion. Concerning the statements Dean made in the
interview room after his arrest, the court concluded, Under the totality of the circumstances, it does not appear to the Court that his mental illness, to the extent he had one, interfered with the voluntariness of those statements. The court finds that there was no Miranda violation, they went through the proper process, they were not questioning him, and that those statements are admissible under [CrR] 3.5, as they were the result of a voluntary, spontaneous utterance on his part.
2. Testimony of Dr. Barry Logan
In March 2024, the court heard arguments from the parties concerning the
State’s motion to allow expert testimony from Dr. Barry Logan. The State sought
to have Dr. Logan testify about the results of the chemical analysis of M.L.’s
autopsy. Dr. Logan was the state toxicologist in 1993 and was involved with
testing blood samples taken from M.L. Two sets of tests were done on M.L.’s
blood. The first round of testing was performed by analyst John Larson.12
Larson created a draft report based on the printouts from the testing instruments
and compiled both the report and the printouts for Dr. Logan to review. Larson’s
report indicated that M.L.’s blood contained acetone. After reviewing the raw
data and Larson’s report, Dr. Logan concurred with Larson’s assessment.
12 Larson was deceased at the time of trial.
9 No. 86607-9-I (Consol. with No. 86972-8-I)/10
Dr. Logan communicated with Dr. Kiesel, who had performed the original
autopsy, about the results. Dr. Kiesel told Dr. Logan that he believed it was
ether, not acetone, present in M.L,’s blood. Based on this feedback, Dr. Logan
redesigned the test so it could differentiate between acetone and ether. Larson
again ran M.L.’s blood sample. Dr. Logan was present for some of this testing.
Dr. Logan reviewed the instrument data from this round and concluded M.L.’s
blood contained ether rather than acetone. Dr. Logan also signed off on the final
report. The court concluded Dr. Logan’s testimony did not present a
confrontation clause issue and granted the State’s motion.
3. Graffiti Evidence
Dean brought a motion to admit photographs taken by law enforcement in
1994 of graffiti discovered on the walls of a backyard shed at T.P.’s home. The
photographs were taken in 1994, when the bank repossessed the home and
alerted law enforcement to the existence of the graffiti. The photographs Dean
sought to admit depicted graffiti with the following statements: (1) “[T.P.] wants
[M.L.] dead!!”; (2) “I’ll be dead soon, 6 ft. under” (stick figure in a coffin); and
(3) “[M.L.] is gonna die soon.” (smiley face).13 The State asserted that the graffiti
appeared to be in at least three different people’s handwriting. During pretrial
interviews, both T.P. and M.D. stated they did not create the graffiti, nor did they
know who wrote it. M.D. noted some of the handwriting looked feminine and
admitted it could have been her.
13 The graffiti in (3) above used the first name of M.L., but it is unclear to
whom this statement referred given this first name was shared by M.D., T.P.’s girlfriend at the time of M.L.’s death.
10 No. 86607-9-I (Consol. with No. 86972-8-I)/11
Dean claimed he was offering the photographs as proof that T.P. put a hit
on M.L. The court concluded the statements were hearsay and no exception
existed. In a motion for reconsideration, Dean argued the writings were
admissible for the purpose of impeaching law enforcement’s investigation. He
maintained detectives “cleared” T.P. before the writings were found, and the
investigation efforts concerning T.P. were minimal. The court denied Dean’s
motion.
4. Other Suspect Evidence
Dean also sought to admit testimony that T.P. was abusive towards his
girlfriend, M.D., as part of his “other suspect” defense. In a pretrial interview,
M.D. stated T.P. choked her “a couple of times.” Dean contended this evidence
went to T.P.’s intent, motive, and modus operandi underlying his alleged murder
of M.L. The court allowed the evidence, noting Dean satisfied the ER 404(b)
requirements.14
The State filed a motion asking the court to reconsider. During the
hearing, Dean offered a new, non-propensity, basis for admission:
consciousness of guilt. Dean told the court he expected M.D. to testify about an
incident that occurred while she was dating T.P., where T.P. and a friend, E.C.,
took her out in the woods behind T.P.’s house and tied her to a tree, then the
14 To admit evidence of the defendant’s prior misconduct, “ ‘the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.’ ” State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)).
11 No. 86607-9-I (Consol. with No. 86972-8-I)/12
friend put his hands around M.D.’s neck, and T.P. said, “Do you want to die like
[M.L.] died?”
The court considered both the State’s motion for reconsideration and the
newly offered evidence of the incident in the woods. The court reversed its
original order allowing the admission of evidence of T.P. choking M.D., noting,
“the case law is clear that this does not fit MO, modus operandi, because it’s not
so distinctive and unusual of a manner of assaulting or attempting to kill
someone that it would justify admitting the prior misconduct.” But, with regard to
the incident with T.P., E.C., and M.D. in the woods, the court found its probative
value outweighed the prejudice and allowed its admission.
5. Autopsy Photographs
The State sought to admit 16 photographs from M.L.’s autopsy. The State
maintained the photographs selected offered “a very particular and specific thing,
clothing that the victim was wearing, the injuries to her throat from various
angles, the face shot for identification, and the condition of her various limbs and
back and torso.” The court granted the State’s motion, noting it did not “believe
that they are so shocking under [ER] 403 as to be unfairly prejudicial, and they’re
directly relevant to the State’s burden in this matter.”
Trial
At trial, Dean’s theory of the case was that T.P. was responsible for M.L.’s
death. Sharon described M.L. and T.P.’s relationship as “volatile,” and noted she
did not like the way T.P. treated M.L. She testified that shortly before M.L.’s
death, T.P and M.L. broke up. She stated that on the day of M.L.’s death, M.L
12 No. 86607-9-I (Consol. with No. 86972-8-I)/13
called her at work and told her that T.P. “was going to come and kill her [M.L.].”15
At the end of Sharon’s direct examination, the State handed her what had
previously been admitted as Exhibit (Ex.) 29—an autopsy photograph of M.L.16
The photograph depicted M.L.’s face. M.L.’s eyes were closed, her mouth sightly
open, and red ligature marks were visible on her neck. The State questioned,
“I’m going to ask you to take a look at [the photograph], and I’m going to ask you
to indicate for us whether this is, in fact, a photograph of your daughter [M.L.],
okay?” Sharon replied, “Oh, my God. It’s her.” The State ended its direct
examination and the court turned to Dean for cross-examination. Before Dean’s
attorney began cross-examination, he stated, “Your Honor, I’ll just ask, if
[Sharon] needs a few minutes, that would certainly be understandable.” Sharon
indicated she was ready to continue, but after a few moments, Dean noted, “Your
Honor, I know [Sharon] has indicated that she’s all right, but I do wonder if this
would be an appropriate time for the afternoon recess, as I do see that she is still
understandably upset and tearful.”
The court recessed and Dean moved for a mistrial. Dean noted Sharon
had already been shown several photos of M.L., and no apparent need existed
for the State to show her the final autopsy photo. Dean claimed, It was clearly a ploy that was meant to derail cross- examination. It puts defense in a terrible light before the jury to ask her really anything about [M.L.]. It was clearly designed to enflame
15 Neither Sharon’s initial report to police nor her written statement included this fact. 16 Before showing Sharon the photo, the State approached Dean’s
counsel and confirmed it was going to present the photo to Sharon. Dean’s counsel did not object.
13 No. 86607-9-I (Consol. with No. 86972-8-I)/14
the passions of the jury. [Sharon], upon seeing the photo shouted, “Oh, my God,” and burst into tears.
The State countered that it was appropriate to “close the circle” by having Sharon
identify the individual in the photograph. The State also noted that it had told
Sharon that morning it would be showing her autopsy photographs.
The court concluded there was a legitimate basis for the State to show the
photograph and noted, “while it’s unfortunate the witness had a – an emotional
reaction, which is understandable, to it, it was not so overblown that it can’t be,
with a break, overcome.” After the recess, Sharon returned to the stand and
Dean conducted cross-examination with seemingly no issues.
Later in trial, the State showed Dr. Kiesel the same photograph (Ex. 29)
and he explained, “this is an identification photograph that we take on all cases.”
Prior to deliberations, the court read the jury instructions, which included the
following instruction: “You must not let your emotions overcome your rational
thought process. You must reach your decision based on the facts proved to you
and on the law given to you, not on sympathy, prejudice, or personal preference.”
Dean called several witnesses at trial, including T.P. T.P. testified that
M.L. prank-called his house the night she was killed but had little memory of
much else. When asked if he had any memory of telling M.L. she was marked,
T.P. claimed he did not recall making that comment. But in a written statement to
law enforcement on April 20, 1993, T.P. said he had placed a tag on M.L.’s life.
T.P.’s stepbrother, A.G., testified and confirmed that T.P. had placed a hit
on M.L. A.G. recalled that T.P. had told him that “he had forgotten to call off a
hit” on M.L. A.G. said T.P was not planning the hit himself but had recruited
14 No. 86607-9-I (Consol. with No. 86972-8-I)/15
someone from the gang he was affiliated with to carry out the hit. A.G. testified
“nothing” wound up happening with the hit and T.P. never mentioned it to him
again. In his written statement to law enforcement in 1993, A.G. said, “[T.P.] did
tell [M.L.] she was marked, but only after she kept calling and refused to stop.”
T.P.’s father and brothers, S.P. and B.P., also testified. Neither recalled
much from the night of April 13, but their statements to police on April 16, 1993,
indicated that on the night of April 13, T.P. returned home around 9:00 p.m., was
on the couch watching a movie at 2:00 a.m., and was asleep on the couch at
6:00 a.m. Conversely, M.D. testified that T.P. stayed at her house the night of
April 13, 1993.
Dean called M.D. as a witness and asked about the incident in the woods.
While describing the incident, M.D. testified it was T.P.’s friend, E.C., who asked
if she wanted to die like M.L., not T.P., as Dean had indicated. The State
objected and asked to be heard outside the presence of the jurors. The State
noted that M.D.’s testimony was different than what was discussed during the
motions in limine. During the motion, Dean had offered this incident as proof of
T.P.’s consciousness of guilt because it was T.P. who said, “Do you want to die
like [M.L.]” but now M.D. was testifying it was T.P.’s friend who said those words.
Dean responded that in her interview with detectives, M.D. indicated it was T.P.
who said those words. Dean offered two remedies: impeachment or a stipulation
from the detective that during the interview, M.D. referred to T.P making the
statement.
The court allowed Dean to impeach M.D., but stated, “if she does not—
15 No. 86607-9-I (Consol. with No. 86972-8-I)/16
after being confronted with her out-of-court statement—agree to that, then the
matter is over.” Dean responded, “And I will move on at that point.” When Dean
continued questioning, M.D. confirmed it was E.C. who made the statement. The
State objected and moved to strike. The court sustained the objection and told
the jury “to disregard the last answer with regard to who made the statement and
what the statement was.” The State requested that the entire portion of the
testimony concerning the incident be struck; the court sustained that as well and
told the jury to “disregard the entirety of that line of questioning.” Dean did not
object.
The jury found Dean guilty of murder in the first degree, and the court
sentenced Dean to 320 months imprisonment, to be followed by 36 months
community custody. Dean appealed, claiming (1) the trial court violated his right
to due process by admitting his involuntary statements; (2) the court denied Dean
his constitutional right to present a defense; (3) Dean was denied effective
assistance of counsel; (4) the State engaged in prosecutorial misconduct; (4) the
trial court violated Dean’s right to confront a witness; (5) Dean was deprived of a
fair trial due to cumulative error; and (6) the trial court erroneously entered
community custody conditions that exceeded the statutory maximum.
ANALYSIS
CrR 3.5
Dean contends the trial court erred when it concluded that admission of
the statements he made during his postarrest interview did not violate his due
16 No. 86607-9-I (Consol. with No. 86972-8-I)/17
process rights.17 Because Dean was not exhibiting any signs of mental illness
and his statements were not coerced, the court did not err when it concluded the
statements were made voluntarily.
We will not disturb a trial court’s determination that a statement was made
voluntarily if “there is substantial evidence in the record from which the trial court
could have found by a preponderance of the evidence that the confession was
voluntary.” State v. Cushing, 68 Wn. App. 388, 393, 842 P.2d 1035 (1993). The
due process clause of the federal and state constitutions protects individuals
from convictions predicated on, in whole or part, the admission of involuntary
statements coerced by the actions of a State actor. U.S. CONST. amend. XIV,
§ 1, WASH. CONST. art. I, § 3; State v. McCullough, 56 Wn. App. 655, 658, 784
P.2d 566 (1990). For purposes of due process, “coercive police activity is a
necessary predicate to the finding that a confession is not ‘voluntary.’ ” Colorado
v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).
Whether a statement is involuntary is determined by the totality of the
circumstances. State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008).
Factors considered in the totality of the circumstances analysis include the
defendant’s physical condition, age, mental abilities, and conduct of law
enforcement. State v. Rupe, 101 Wn. 2d 664, 679, 683 P.2d 571 (1984). While
the court must consider the mental abilities of a defendant, mental illness does
17 Dean only challenges the voluntariness of statements made during his postarrest interview. His statements made to law enforcement during his arrest are not challenged, but they are discussed to the extent they inform the voluntariness of his interview room statements.
17 No. 86607-9-I (Consol. with No. 86972-8-I)/18
“not necessarily require the conclusion that the confession was involuntary.”
Cushing, 68 Wn. App. at 392-93. Even where mental illness is a factor, police
coercion must also be present for a statement to be deemed involuntary.
Connelly, 479 U.S. at 165 (“[W]hile mental condition is surely relevant to an
individual’s susceptibility to police coercion, mere examination of the
confessant’s state of mind can never conclude the due process inquiry.”)
Here, Dean contends the totality of the circumstances show that he had
an untreated mental illness and law enforcement exploited this condition during
the July 28, 2020, interview. Dean references his past treatment for
schizophrenia, maintaining this indicates a longstanding condition,18 and his
more recent competency evaluations to support his assertion that his behavior
was the product of more than anti-government beliefs. He maintains the State
had reason to question his mental condition—based on his statements during the
gum ruse and his arrest—and exploited this condition by lying to him about the
reason for his arrest, then “taking his incoherent statements as an invocation of
his right to silence.”
Dean likens his situation to State v. Sergent, 27 Wn. App. 947, 621 P.2d
209 (1980). In that case, the State charged Sergent with murder in the first
degree but found him incompetent to stand trial. Sergent, 27 Wn. App. at 948.
Sergent was admitted to WSH and the hospital administered “haloperidol (which
reduces delusions and hallucinations of one suffering from schizophrenia) and
18In 2007 and 2009, Dean received services through King County Regional Support Network in relation to a diagnosis of Unspecified Schizophrenia.
18 No. 86607-9-I (Consol. with No. 86972-8-I)/19
Cogentin (which controls undesirable physical side effects of the haloperidol).”
Id. A few weeks after being admitted, Sergent spoke with law enforcement on
the phone and expressed a desire to enter a guilty plea. Id. The court held a
CrR 3.5 hearing and deemed the conversation admissible. Id. Subsequently,
the court found Sergent guilty of murder in the second degree. Id. Sergent
appealed, contending his confession was not made voluntarily. Id.
On appeal, the court held, “An examination of all the circumstances
surrounding the February 15 statement convinces us that the confession was
involuntary.” Id. at 949. The court noted that when Sergent made the statement
to law enforcement, he was incompetent to stand trial, actively exhibiting
symptoms of schizophrenia, experiencing strong negative reaction to his
medications, had waived his fundamental constitutional rights without the
assistance of counsel, and believed confessing would result in his transfer to
prison, thereby “escaping the prescribed medications.” Id. at 950. Additionally,
the court noted the officer’s questions to Sergent were “highly suggestive and
leading.” Id. at 951.
The facts here are distinguishable. Unlike Sergent, no evidence exists
suggesting Dean was actively experiencing symptoms of mental illness during
the interview. Dean had been treated for schizophrenia over ten years prior, but
he had no documented treatment again until October 16, 2020, nine months after
his arrest, when a psychologist deemed him incompetent to stand trial. However,
when law enforcement arrested Dean in February 2020, officers noted Dean
appeared to be tracking what they were saying and understood the situation.
19 No. 86607-9-I (Consol. with No. 86972-8-I)/20
Even if Dean had been experiencing mental illness symptoms, nothing in the
record indicates law enforcement was aware of and exploited his mental illness.
The arresting officer believed Dean considered himself a sovereign citizen
and recognized his communications as consistent with those beliefs. Dean made
similar statements during his interview with Detectives Walvatne and Conley, and
the detectives understood that Dean was communicating his desire to not answer
questions. When Dean continued to say he “decline[d] any and all offers of
contract” and he could not “make any legal determinations on any of the
questions,” the detectives ceased questioning him. Detective Conley told Dean
what he was being charged with, informed him that he was being recorded,
offered assistance if he needed anything, and left the room. The detectives did
not use coercive tactics, did not threaten Dean or ask him suggestive or leading
questions, and they left the room when Dean made it clear he did not want to
talk.
The court’s determination that Dean’s statement was voluntary is
supported by the record. Dean was not displaying obvious symptoms of mental
illness, but even if he was experiencing a mental health issue, the detectives did
not use coercive tactics. We conclude the trial court did not err when it admitted
Dean’s July 28, 2020, statements.
Right to Present a Defense
Dean contends the trial court violated his right to present his “other
suspect” defense when it excluded the graffiti writings and testimony from M.D.
concerning the incident in the woods. Exclusion of the graffiti writings and the
20 No. 86607-9-I (Consol. with No. 86972-8-I)/21
incident in the woods was not error because the prejudicial nature of the
evidence outweighed its probative value. In addition, it was not the only
evidence to support Dean’s “other suspect” defense.
A defendant has the right to present a complete defense. State v.
Cayetano-Jaimes, 190 Wn. App. 286, 297-98, 359 P.3d 919 (2015). This
includes the right to present relevant, material evidence and “ ‘a fair opportunity
to defend against the State’s accusations.’ ” State v. Jones, 168 Wn.2d 713,
720, 230 P.3d 576 (2010) (quoting Chambers v. Mississippi, 410 U.S. 284, 294,
93 S. Ct. 1038, 35 L. Ed. Ed 297 (1973)).
We apply a two-step analysis to determine whether a defendant’s right to
present a defense was violated by a trial court’s exclusion of evidence. State v.
Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019). First, we analyze the trial
court’s evidentiary rulings for abuse of discretion. State v. Jennings, 199 Wn.2d
53, 58, 502 P.3d 1255 (2022). A trial court abuses its discretion if it “ ‘applies the
wrong legal standard[] or bases its ruling on an erroneous view of the law.’ ”
State v. Orn, 197 Wn.2d 343, 351, 482 P.3d 913 (2021) (alteration in original)
(quoting State v Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007)). If the trial
court’s evidentiary ruling was an abuse of discretion, we must determine whether
the error was prejudicial under the harmless error standard. Jennings, 199
Wn.2d at 59. “An error is harmless and not grounds for reversal if the appellate
court is assured beyond a reasonable doubt that the jury would have reached the
same verdict without the error.” State v. Romero-Ochoa, 193 Wn.2d 341, 347,
440 P.3d 994 (2019).
21 No. 86607-9-I (Consol. with No. 86972-8-I)/22
If the court’s evidentiary ruling was not an abuse of discretion or was
harmless error, we then consider de novo whether the exclusion of evidence
violated the defendant’s right to present a defense. Jennings, 199 Wn.2d at 58.
First, the court must determine whether the evidence is minimally relevant.
Jones, 168 Wn.2d at 720. Evidence is relevant if it has “ ‘any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.’ ”
Jennings, 199 Wn.2d at 60 (quoting ER 401). Whether evidence is relevant is a
low threshold; “[e]ven minimally relevant evidence is admissible.” State v.
Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
If the evidence is deemed relevant, the court must then “weigh the
defendant’s right to produce relevant evidence against the State’s interest in
limiting the prejudicial effects of that evidence to determine if excluding the
evidence violates the defendant’s constitutional rights.” Jennings, 199 Wn.2d
at 62. To justify exclusion of evidence, the State must show “the evidence was
‘so prejudicial as to disrupt the fairness of the factfinding process.’ ” Orn, 197
Wn.2d at 354 (quoting State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)). If
the evidence is highly probative, “ ‘no state interest can be compelling enough’ ”
to justify exclusion. State v. Luna, 5 Wn.3d 465, 507, 578 P.3d 273 (2025)
(quoting Hudlow, 99 Wn.2d at 16). But, even if the court excludes some
probative evidence, a defendant’s right to present a defense may not be violated
if they are still able to present evidence to support their defense. Arndt, 194
Wn.2d at 813-14. If the State cannot make a showing of prejudice, or if the
22 No. 86607-9-I (Consol. with No. 86972-8-I)/23
excluded evidence is highly probative, then the defendant’s right to present a
defense was violated and the harmless error standard applies. Orn, 197 Wn.2d
at 358.
1. Graffiti Evidence
Dean contends the exclusion of the graffiti writings violated his right to
present a defense because the writings were relevant and highly probative of
T.P.’s state of mind and, alternatively, could have been used for the purpose of
impeaching the police investigation.19 We disagree.
a. T.P.’s State of Mind
Dean maintains the writings were relevant because sufficient evidence
exists to infer the writings reflected T.P.’s state of mind. Dean cites to testimony
that the writings occurred only when T.P. or his brother were present and T.P.
would have been aware of the writings. Dean also notes that, even if M.D.
created some of the graffiti (which she testified was a possibility), that would still
be relevant because, as T.P.’s girlfriend, M.D. had intimate knowledge of T.P.’s
state of mind.
Conversely, the State contends the graffiti evidence is only relevant if
some evidence exists that the statements were made by T.P., because “[t]here is
no minimal relevance in a statement made by unknown person, at some
unknown time to the effect that they personally believed T.P. wanted M.L. dead.”
(Emphasis in original.)
19 Dean does not argue the trial court’s evidentiary ruling was an abuse of discretion.
23 No. 86607-9-I (Consol. with No. 86972-8-I)/24
The graffiti evidence is relevant because it references M.L.’s death, but
evidence is not admissible if its relevance “rest[s] on theories that [are]
speculative and lack[] an adequate foundation.” State v. Bass, 18 Wn. App. 2d
760, 800, 491 P.3d 988 (2021). No evidence exists to support that T.P wrote the
graffiti. And even if the graffiti writings were created when T.P. was present or he
knew about them, that does not prove the writings were indicative of T.P.’s state
of mind. This theory is purely conjectural. Any conclusion that it is an indication
of T.P.’s state of mind is speculative and inadmissible.
Even if the evidence was relevant, the State met its burden of showing the
evidence was more prejudicial than probative. Because the authors of the graffiti
are unknown, the admission of the evidence could lead the jury to speculate and
make prejudicial inferences about who created the graffiti. Dean maintains that
any prejudice is negated because the prosecution would be able to emphasize to
the jury that the author of the graffiti was unknown and the jury could weigh the
evidence. Dean cites to State v. Terrovona, for support, but in that case the
declarant was known, and the jury was weighing only the inferences of action
after the statements were made. 105 Wn.2d 632, 638, 716 P.2d 295 (1986).
Furthermore, exclusion of the graffiti did not deprive Dean of his ability to argue
his theory of the case. He was still able to present to the jury evidence of T.P.
and M.L.’s tumultuous relationship and T.P.’s threats toward M.L., including that
he put a hit on her. For these reasons, the exclusion of the graffiti evidence did
not violate Dean’s right to present a defense.
24 No. 86607-9-I (Consol. with No. 86972-8-I)/25
b. Impeachment of the Investigation
Dean contends the trial court abused its discretion and violated his right to
present a defense by excluding the graffiti for the purpose of impeaching the
police investigation.
Criminal defendants have a right to question the reliability of law
enforcement’s investigation. See, e.g., Kyles v. Whitley, 514 U.S. 419, 446-47,
115 S. Ct. 1555, 131 L. Ed. 2d. 490 (1995). When evidence is offered not for the
truth of the matter asserted, but to provide context for an investigation, it is not
hearsay. State v. Iverson, 126 Wn. App. 329, 337, 108 P.3d 799 (2005).
Here, Dean maintains the graffiti was relevant to impeach the investigation
because detectives did not search the shed and, later, when they discovered the
writings, they did not “reexamine [T.P.’s] alibi.” Dean claims the fact that none of
the witnesses interviewed in 1993, including T.P. and M.D., discussed the
writings goes to their credibility and, thus, warranted reexamination of T.P.
First, the trial court never deemed the evidence to be irrelevant. The
court’s decision to deny the motion to admit the graffiti evidence was based on
the untrustworthiness of the evidence and Dean’s ability to impeach the
investigation without the evidence. As the court correctly identified, the
information from the statements—that T.P. wanted M.L. dead—was the same
information detectives already had from witness testimony. Additionally, Dean’s
contention that the writings went to law enforcement’s efforts because they
“already cleared [T.P.] as the other suspect” is based on the false notion that T.P.
was cleared as a suspect before law enforcement discovered the graffiti. The
25 No. 86607-9-I (Consol. with No. 86972-8-I)/26
State indicated that T.P. remained a person of interest and only “came off the
radar” when the DNA profile on M.L.’s shorts was not a match to T.P.
Dean cites to State v. Alexander,20 to support his argument, but that case
is distinguishable. In Alexander, the court admitted a diary entry by the victim
that indicated she was alive after the defendant left her. No. 82703-1-I, slip op.
at 10. The court held the diary entry was admissible to impeach law
enforcement’s investigation, because they had failed to obtain video surveillance
for the apartment complex after the entry was written. Id. But, unlike the case
here, law enforcement knew about the diary entry from the beginning of the
investigation, and despite one officer directing another officer to obtain the
surveillance footage, it was never recovered. Id. at 11.
Here, nothing in the record indicates detectives should have known about
the graffiti writings sooner or that the lack of such knowledge was a “failure to
investigate.” As Dean admits, none of the witnesses discussed the writings in
the shed. Also, no evidence indicates that T.P. was “cleared” before the
discovery of the graffiti, and no evidence exists to support a conclusion that law
enforcement did not further examine T.P.’s alibi after the graffiti was discovered.
And, as discussed supra, any probative value of the graffiti was outweighed by its
prejudicial nature. For these reasons, exclusion of the graffiti evidence for
purposes of impeaching the investigation did not violate Dean’s right to present a
defense.
20 No. 82703-1-I (Wash. Ct. App. Apr. 3, 2023) (unpublished), https:// www.courts.wa.gov/opinions/pdf/827031%20Order%20and%20Opinion.pdf.
26 No. 86607-9-I (Consol. with No. 86972-8-I)/27
2. Incident in the Woods
Dean contends the trial court’s evidentiary ruling concerning the incident in
the woods was an abuse of discretion, and exclusion of the evidence violated his
right to present a defense. Because Dean failed to object, he has waived this
claim on appeal.
Evidentiary Ruling
A party’s failure to object at trial precludes appellate review unless the
error was manifest and of constitutional magnitude. State v. Leavitt, 111 Wn.2d
66, 71, 758 P.2d 982 (1988). Evidentiary rulings are not of constitutional
magnitude. State v. Powell, 166 Wn.2d 73, 84, 206 P.3d 321 (2009).
Here, Dean did not object to the trial court’s ruling to strike the entire
testimony concerning the incident in the woods. Because Dean failed to object,
we decline to review the issue on appeal.
Ineffective Assistance of Counsel
Dean contends he received ineffective assistance of counsel because
(1) his attorney did not argue the “ancient documents” exception in support of the
motion to admit the graffiti evidence and (2) his counsel failed to object to the
court’s ruling concerning testimony of the incident in the woods with M.D.
Because the ancient documents exception does not apply, and any objection to
the court’s ruling concerning the incident in the woods would have been futile, we
conclude Dean received effective assistance of counsel.
We review ineffective assistance of counsel claims de novo. State v.
Jones, 183 Wn. 2d 327, 338, 352 P.3d 776 (2015). Under both the federal and
27 No. 86607-9-I (Consol. with No. 86972-8-I)/28
state constitutions, a criminal defendant is guaranteed the right to effective
assistance of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.
Counsel for criminal defendants have basic duties, including “assisting the
defendant, advocating for the defendant’s cause, and utilizing ‘such skill and
knowledge as will render the trial a reliable adversarial testing process.’ ” State
v. Vazquez, 198 Wn.2d 239, 249, 494 P.3d 424 (2021) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A
defendant’s right to effective assistance of counsel is violated when (1) defense
counsel’s performance was deficient and (2) that deficiency prejudiced the
accused. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). The
defendant has the burden of showing both that their counsel’s performance was
deficient and they were prejudiced. Estes, 188 Wn.2d at 458.
Counsel’s performance is deficient if it “falls ‘below an objective standard
of reasonableness based on consideration of all the circumstances.’ ” Id.
(quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)).
The presumption is strong that counsel’s representation was reasonable, and the
defendant has the burden of proving “ ‘the absence of legitimate strategic or
tactical reasons supporting the challenged conduct by counsel.’ ” Vazquez, 198
Wn.2d at 248 (quoting McFarland, 127 Wn.2d at 336). An attorney’s decision to
not object during trial “ ‘may be a sound one on tactical grounds by competent
counsel.’ ” State v. Warren, 134 Wn. App. 44, 56, 138 P.3d 1081 (2006) (quoting
State v. Madison, 53 Wn. App. 754, 762-63, 770 P.2d 754 (1989)). When a
defendant bases their ineffective assistance of counsel claim on their attorney’s
28 No. 86607-9-I (Consol. with No. 86972-8-I)/29
failure to object, “ ‘the defendant must show that the objection would likely have
succeeded.’ ” Vazquez, 198 Wn.2d at 248 (quoting State v. Crow, 8 Wn. App. 2d
480, 508, 438 P.3d 541 (2019)).
To show prejudice, a defendant must prove there is a “ ‘reasonable
probability’ . . . that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” State v. Jones, 183 Wn.2d 327, 339,
352 P.3d 776 (2015) (quoting Strickland, 466 U.S. at 694). A “reasonable
probability” is lower than a “preponderance of the evidence” standard: “[I]t is a
probability sufficient to undermine confidence in the outcome.” Estes, 188 Wn.2d
at 458.
Dean contends his counsel was ineffective for failing to argue the graffiti
was admissible under the ancient documents exception to hearsay. Under
ER 803(16), “[s]tatements in a document in existence 20 years or more whose
authenticity is established” are not excluded by the hearsay rule, “even if the
declarant is available as a witness.” Authenticity requires “evidence sufficient to
support a finding that the matter in question is what its proponent claims.”
ER 901(a). Authenticity of an ancient document may be established by showing
the document “(i) is in such condition as to create no suspicion concerning its
authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has
been in existence 20 years or more at the time it is offered.” ER 901(8).
29 No. 86607-9-I (Consol. with No. 86972-8-I)/30
Here, Dean cannot establish authenticity of the documents.21 Dean claims
the writings are what they proport to be—threatening messages recovered from
the walls of T.P.’s shed—and it is not determinative that the author of the
statements is unknown. Dean cites to Allen v. Asbestos, 138 Wn. App. 564, 157
P.3d 406 (2007), to support the proposition that testimony from someone with
personal knowledge about the creation of the document is not required. While
Allen does state as much, the facts here are very different from Allen. In Allen,
the documents in question were shipyard documents either from the shipyard
itself or from the national archives. Id. at 576.
Not only is the creator of the graffiti unknown, but the circumstances
surrounding its creation are unknown. None of the witnesses could testify to the
authenticity of the writings. Both T.P. and M.D. had no recollection of who
created the graffiti or when it was created—whether before M.L.’s death or after.
Also, while Dean contends the graffiti is what it proports to be (threatening
messages), no evidence exists to support a finding these messages were written
as anything other than inappropriate, childish scribbles of teenagers.
Additionally, the graffiti itself was not in existence for more than 20 years when
offered at trial. Dean offered photographs of the graffiti taken in 1994.
Because the graffiti cannot be authenticated, the ancient document
exception does not apply, and Dean’s counsel was not ineffective for failing to
argue an exception that was futile.
21While we do not analyze the issue because we conclude the graffiti cannot be authenticated, we do not believe the graffiti at issue here is a “document” for purposes of ER 901(b)(8).
30 No. 86607-9-I (Consol. with No. 86972-8-I)/31
Dean contends he was deprived of effective assistance of counsel
because his attorney did not object when the trial court struck testimony from
M.D. concerning the incident in the woods. But, as discussed supra, the
testimony concerning the incident in the woods was properly struck; therefore,
any objection would have been futile, and Dean’s counsel was not ineffective for
failing to object.
Prosecutorial Misconduct
Dean contends the State engaged in prosecutorial misconduct when it
showed Sharon the autopsy photograph of M.L. at the end of direct examination.
We disagree.
Claims of prosecutorial misconduct are reviewed for abuse of discretion.
State v. Brown, 132 Wn.2d 529, 562-63, 940 P.2d 546 (1997). A court abuses its
discretion if it “ ‘acts on untenable grounds or its ruling is manifestly
unreasonable.’ ” State v. Hill, 19 Wn. App. 2d 333, 345, 495 P.3d 282 (2021)
(quoting State v. Gaines, 194 Wn. App. 892, 896, 380 P.3d 540 (2016)). “Where
the defendant moves for a mistrial based on alleged prosecutorial misconduct,
we will give deference to the trial court’s ruling on the matter.” State v. Whitaker,
6 Wn. App. 2d 1, 16, 429 P.3d 512 (2018).
To prevail on a claim of prosecutorial misconduct, a defendant must
establish “in the context of the record and all of the circumstances of the trial, the
prosecutor’s conduct was both improper and prejudicial.” In re Pers. Restraint of
Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012) (plurality opinion). A
31 No. 86607-9-I (Consol. with No. 86972-8-I)/32
prosecutor’s conduct is improper when they “seek[] a conviction based on
emotion rather than reason.” State v. Craven, 15 Wn. App. 2d 380, 385, 475
P.3d 1038 (2020).
Prejudice is established where “there is a substantial likelihood the
misconduct affected the jury’s verdict.” State v. Barboa, 157 Wn.2d 108, 122,
135 P.3d 469 (2006). When determining whether a prosecutor’s conduct was
prejudicial, we look at the conduct “in the context of the total argument, the
issues in the case, the evidence, and the instructions given to the jury.” State v.
Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).
Here, Dean contends the State’s conduct was improper because it “was
an unnecessary appeal to jurors’ emotions.” Dean argues M.L.’s identity was
verified by one of the investigating detectives shortly after Sharon’s testimony
and, therefore, a valid reason did not exist to show Sharon the photo. Dean
maintains there is a substantial likelihood that showing Sharon the photo
appealed to the jury’s sympathy for M.L. and prejudiced the outcome of the trial.
While the parties may disagree whether showing Sharon the photograph
to confirm M.L.’s identity was necessary, presentation of the photograph does not
rise to the level of prosecutorial misconduct. First, the photograph was admitted
evidence, and the State told Sharon prior to her testimony that it was planning on
showing her an autopsy photo. The State also informed defense counsel before
showing Sharon the photo, and defense counsel did not express concern. No
evidence exists to support a finding that the State knew Sharon would react the
way she did, and the court observed that, while emotional, Sharon’s action was
32 No. 86607-9-I (Consol. with No. 86972-8-I)/33
not overblown.22 Additionally, the jury instructions reminded jurors that “[y]ou
must not let your emotions overcome your rational thought process. You must
reach your decision based on the facts proved to you and on the law given to
you, not on sympathy, prejudice, or personal preference.” And jurors are
presumed to follow the court’s instructions. Warren, 165 Wn.2d at 28.
To the extent that Dean argues the conduct prejudiced his cross-
examination, nothing in the record indicates that Sharon’s testimony was affected
by the photograph. Following the recess, the court informed the parties, “I'll just
indicate for the record that [Sharon] just . . . told me that she’s good with a smile.
So I think we're ready to go forward.” Sharon then went on to answer Dean’s
questions coherently. Because Dean cannot demonstrate how the State’s
conduct was improper or prejudiced him, we conclude the court did not abuse its
discretion when it denied Dean’s motion for a mistrial.
Right to Confrontation
Dean contends the trial court violated his right to confront the witness
when it allowed testimony from Dr. Logan concerning the testing done on M.L.’s
blood, when Dr. Logan was not the one who performed the testing. We agree.
We review a claim of constitutional violation de novo. State v. Hall-
Haught, 4 Wn.3d 810, 816, 569 P.3d 315 (2025). The confrontation clause of
both the federal constitution and Washington State Constitution guarantee a
22 Dean did not object to the use of the photograph when the State indicated it was going to show it to Sharon; it was only after Sharon’s reaction that the Dean objected. Dean’s failure to object beforehand indicates that Dean did not have an issue with the photo itself—it was Sharon’s reaction that Dean believes prejudiced the jury.
33 No. 86607-9-I (Consol. with No. 86972-8-I)/34
criminal defendant the right to confront the witnesses against them. U.S. CONST.
amend. VI; WASH. CONST. art. I, § 22. The confrontation clause prohibits
testimonial statements “unless the declarant is unavailable and the defendant
has had a prior opportunity to cross-examine the declarant.” Hall-Haught, 4
Wn.3d at 816. The clause applies only to testimonial hearsay and “ ‘does not bar
the use of testimonial statements for purposes other than establishing the truth of
the matter asserted.’ ” Smith v. Arizona, 602 U.S. 779, 792-92, 144 S. Ct. 1785,
219 L. Ed. 2d 420 (2024) (quoting Crawford v. Washington, 541 U.S. 36, 60 n.9,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). “A statement is testimonial if ‘the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.’ ” Hall-Haught, 4 Wash. 3d
at 815 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L.
Ed. 2d 224 (2006)). To determine whether a statement is testimonial, the court
considers “whether the statement has ‘a primary purpose of creating an out-of-
court substitute for trial testimony.’ ” Id. at 819 (internal quotation marks omitted)
(quoting Bullcoming v. New Mexico, 564 U.S. 647, 669, 131 S. Ct. 2705, 180 L.
Ed. 2d 610 (2011)).
The confrontation clause “applies in full to forensic evidence.” Smith, 602
U.S. at 783. Under the confrontation clause, a party cannot introduce a lab
analyst’s written findings through the testimony of another. Id. at 786. When an
expert bases their opinion on the out-of-court statements of another, “[t]hose
statements . . . come into evidence for their truth—because only if true can they
provide a reason to credit the substitute expert.” Id. at 803.
34 No. 86607-9-I (Consol. with No. 86972-8-I)/35
In 2024, the Supreme Court clarified the applicability of the confrontation
clause to expert opinions based on forensic evidence the testifying expert did not
create. In Smith, Elizabeth Rast, a forensic analyst, performed a full scientific
analysis on substances believed to be drugs. Id. at 790. After Rast completed
the testing, she prepared “a set of typed notes and a signed report” documenting
her “lab work and results.” Id. The notes included descriptions of the items
tested, the tests performed, and the equipment used. Id. The report distilled
Rast’s notes into two pages of ultimate findings. Id.
At trial, instead of Rast, a substitute forensic scientist, Greggory Longoni,
testified about the testing. Id. Longoni reviewed Rast’s notes and report and
came to the same conclusion as Rast. Id. at 791. Longoni testified that after
reviewing the notes and report, he “form[ed] an independent opinion” as to the
results. Id. at 797. The defendant, Smith, was found guilty and he appealed his
conviction, contending Longoni’s testimony violated his confrontation clause
rights. Id. at 791. On appeal, the court upheld Smith’s conviction, concluding “an
expert may testify to ‘the substance of a non-testifying expert’s analysis, if such
evidence forms the basis of the [testifying] expert’s opinion.’ ” Id. (alteration in
original).
The Supreme Court reversed, holding out-of-court statements that come
in for their truth cannot be used as the basis for an expert’s opinion. Id. at 802-
03. Because Longoni’s opinion, though independently reached, could not be
credited unless Rast’s underlying statements were true, Longoni’s opinion
violated the confrontation clause. Id.
35 No. 86607-9-I (Consol. with No. 86972-8-I)/36
A year after Smith was decided, the Washington State Supreme Court
addressed a similar issue in Hall-Haught. In that case, Mindy Krantz, a forensic
analyst, performed a toxicology examination of the defendant’s blood sample.
Hall-Haught, 4 Wn.3d at 814. At trial, Katie Harris, the toxicology lab supervisor,
who oversaw Krantz’s work on Hall-Haught’s case, testified instead of Krantz. Id.
Harris reviewed the sample testing before approving release of the test results,
but she did not conduct the tests herself. Id. at 814, 822. Harris’s testimony
referred to the “toxicology test report and related items it referenced.” Id.
at 823.23 Additionally, Harris described the scientific tools that Krantz used and
confirmed the lab’s standard operating procedures were followed. Id.
Correcting prior precedent,24 our Supreme Court held Hall-Haught’s
confrontation clause rights were violated when Harris, not Krantz, testified. Id.
The court determined that “Hall-Haught’s lab reports were introduced to show the
truth of what they asserted.” Id. The court concluded Krantz, “the analyst who
performed the testing and wrote the report, was the real witness against Hall-
Haught.” Id. at 825.
Here, John Larson, the analyst who performed the DNA testing, is the real
witness against Dean; therefore, Dean’s right to confrontation was violated. The
State contends the facts here are distinguishable from Smith and Hall-Haught,
because Dr. Logan reviewed the raw data and came to his own conclusions
23 It is unclear whether the report Harris reviewed included the raw data. 24 State v. Lui, 179 Wn.2d 457, 497-98, 315 P.3d 493 (2014) (holding expert witnesses could rely on technical data prepared by other analysts to reach their own conclusions).
36 No. 86607-9-I (Consol. with No. 86972-8-I)/37
based on that data. The State cites to several non-binding cases to support its
contention that raw data generated by a machine cannot be testimonial or
hearsay, but we are bound by Washington Supreme Court precedent. State v.
Watkins, 136 Wn. App. 240, 241, 148 P.3d 1113 (2006). And, as the court in
Hall-Haught indicated, it is not enough that Dr. Logan reviewed the testing and
approved the results. See 4 Wn.3d at 822 (concluding the expert’s opinion was
testimonial even though the expert “supervised Krantz’s work from the start of the
case and also reviewed the sample testing before approving the release of the
test results”).
The State attempts to distinguish Hall-Haught and Smith by noting those
cases did not distinguish between reports prepared by analysts and raw data.
Justice Gonzalez addressed this issue in his concurrence: “Under Smith, are the
results generated by the laboratory machines, the truthfulness of which the
analyst relies on when authoring their report, also subject to the confrontation
clause?” Hall-Haught, 4 Wn.3d at 827 (concurring opinion of Gonzalez, J.).
Seemingly, this question is left unanswered by Hall-Haught as well.
While neither Smith nor Hall-Haught distinguish between reports and raw
data, Bullcoming addressed the issue, and that case was not overturned by
Smith. In Bullcoming, the court acknowledged the burden of requiring the analyst
who performed the testing be the one to testify, but noted the State could avoid
this by having the testifying expert re-test the sample, or engaging notice-and-
demand procedures. 564 U.S. at 666.
Unless and until our Supreme Court makes a distinction between an
37 No. 86607-9-I (Consol. with No. 86972-8-I)/38
analyst’s report and raw data, the confrontation clause requires the analyst who
performed the testing to testify. Accordingly, Dean’s right to confrontation was
violated, and we must determine whether the error was harmless. State v.
Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012).
To determine whether the error was harmless, we use the “ ‘overwhelming
untainted evidence’ ” test. State v. Flores, 164 Wn.2d 1, 18, 186 P.3d 1038
(2008) (internal quotation marks omitted) (quoting State v. Davis, 154 Wn.2d
291, 305, 111 P.3d 844 (2005)). Under this test, “when the properly admitted
evidence is so overwhelming as to necessarily lead to a finding of guilt, the error
is harmless.” Flores, 164 Wn.2d at 19. When the improperly admitted evidence
was merely cumulative of properly admitted evidence, its admission was
harmless. Id.
Here, the toxicology results indicating M.L. had ether in her system were
cumulative of other evidence, and even without Dr. Logan’s testimony, the
admitted evidence overwhelmingly supported a finding of guilt. First, Dr. Kiesel
also testified to smelling ether during M.L.’s autopsy. Dr. Kiesel did not perform a
toxicology test, but he was personally familiar with the smell of ether and was
confident in his identification. Dr. Logan’s testimony expanded on the presence
of ether in M.L.’s bloodstream, including the quantity and that it was combined
with heptane. These results indicated the source of the ether was likely
carburetor fluid or starter fluid. Without Dr. Logan’s testimony, there was still
evidence in the record that M.L.’s blood had ether in it at the time of her death.
But, even if the evidence was not cumulative, its absence would not have
38 No. 86607-9-I (Consol. with No. 86972-8-I)/39
impacted the outcome of the trial. First, the connection between Dean and the
ether was attenuated. The State noted that products containing ether were found
at Dean’s residence when it was searched, but ether is commonly found in
carburetor fluid, and the garage where the items were found was shared with
other people in the house. Additionally, T.P.’s brother testified that they had
carburetor cleaner in their garage in 1993; therefore, the substance was just as
likely linked to T.P. as Dean.
Additionally, even without the toxicology results, substantial evidence in
the record would lead any reasonable juror to reach the same verdict. Dean’s
DNA was a match to four different DNA profiles found on the clothing M.L. was
wearing at the time of her death. Dean’s DNA individually matched the profile
developed from a blood stain on M.L.’s shorts, meaning the chance of finding the
same DNA profile in a randomly selected person from the United States was 1 in
7.2 quadrillion.25 Similarly, the DNA component of the semen stain on the crotch
of M.L.’s shorts matched Dean; that partial profile can only be found in
approximately 1 in 5,400 males in the United States. Dean also had known
contact with M.L., he lived near where her body was found, and he initially denied
knowing her when he spoke with law enforcement. For these reasons, we
conclude that, even though Dean’s right to confrontation was violated, the error
was harmless.
Cumulative Error
Under the cumulative error doctrine, “a defendant may be entitled to a new
25 “72” followed by 14 zeroes.
39 No. 86607-9-I (Consol. with No. 86972-8-I)/40
trial when cumulative errors produce a trial that is fundamentally unfair.” State v.
Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012). The doctrine applies “ ‘where
a combination of trial errors denies the accused a fair trial even where any one of
the errors, taken individually, may not justify reversal.’ ” State v. Meza, 26 Wn.
App. 2d 604, 624, 529 P.3d 398 (2023) (quoting In re Det. of Coe, 175 Wn.2d
482, 515, 286 P.3d 29 (2012)). But “ ‘[w]here the evidence is overwhelming
against a defendant,’ cumulative error will not require reversal.” Meza, 26 Wn.
App. 2d at 624 (quoting In re Pers. Restraint of Cross, 180 Wn.2d 664, 691, 327
P.3d 660 (2014)).
Here, only one error by the trial court occurred: allowing the testimony of
Dr. Logan in violation of Dean’s right to confrontation. But, as discussed supra,
the error was harmless and did not affect the outcome of the trial. Because no
other errors occurred, we conclude cumulative errors did not deprive Dean of a
fair trial.
Community Custody
Dean and the State agree that Dean’s community custody exceeds the
statutory maximum, and the case should be remanded to strike the current term
of community custody and impose placement consistent with
RCW 9.94B.050(2)(b). We agree with the parties.
Under RCW 9.94B.050(2)(b), The court shall sentence the offender to a term of community placement of two years or up to the period of earned release awarded pursuant to RCW 9.94A.728, which is longer, for: (b) A serious violent offense other than a sex offense committed on or after July 1, 1990, but before July 1, 2000.
40 No. 86607-9-I (Consol. with No. 86972-8-I)/41
A defendant’s punishment may not exceed the penalty in place on the day the
crime was committed. State v. Pillatos, 159 Wn.2d 459, 475, 150 P.3d 1130
(2007).
Here, because Dean committed the offense in 1993, his community
custody conditions should be imposed in accordance with RCW 9.94B.050(2)(b).
We remand to strike the term of community custody and impose conditions
consistent with RCW 9.94B.050(2)(b).
We affirm, but remand with instructions to correct the community custody
conditions.
WE CONCUR:
Related
Cite This Page — Counsel Stack
State Of Washington V. Alan E. Dean, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-washington-v-alan-e-dean-washctapp-2026.