FILED
SEPTEMBER 15,2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 29033-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CLAYTON GENE STAFFORD, )
)
Appellant. )
LAWRENCE-BERREY, J. -Ajury convicted Clayton Gene Stafford of aggravated
first degree murder. On appeal, he contends (1) the trial court erred in not suppressing his
statements made during police interrogation because he did not waive his right to have an
attorney present, (2) the Sixth Amendment confrontation clause was violated when the
court allowed DNA1 expert testimony from a witness who was not the person who tested
the evidence, (3) the court abused its discretion in allowing irrelevant and unfairly
prejudicial testimony ofa witness, (4) the State failed to prove the essential elements of
aggravated first degree murder, and (5) the jury was erroneously instructed that it had to
1 Deoxyribonucleic acid. No. 29033-6-II1 State v. Stafford
be unanimous to answer "no" to the special verdict. We disagree with his contentions and
affinn.
FACTS
On June 12, 1993, Shawna Yandell and her boyfriend, Travis Sinden, wentto
Sportsman's Park by the Yakima River. While they were there, Mr. Sinden passed out in
the public restroom after drinking too much. Ms. Yandell awakened Mr. Sinden because
she was cold, tired, and wanted to go home. Around midnight, the couple tried to get a
ride from the park ranger, but the ranger refused. The couple was staying with Mr.
Sinden's relatives, the Wilkeys, and Mr. Sinden called them for a ride. Members of the
Wilkey family told Mr. Sinden that they would not pick him up, primarily because of the
late hour.
Unable to secure a ride, Mr. Sinden went back into the restroom and fell asleep.
He awoke while it still was dark. Ms. Yandell was gone. He yelled for her but could not
find her. He began walking back to the Wilkeys, thinking that Ms. Yandell may have
done the same.
Ms. Yandell was not at the Wilkeys. Mr. Sinden was worried and went back to the
park to search for her. He did not find her, so he went back to the Wilkeys' house and
waited. Eventually, Mr. Sinden called the police and reported her missing.
No. 29033-6-III State v. Stafford
Meanwhile, a group of Boy Scouts on a canoe trip found Ms. Yandell's body in the
Yakima River. The location was about two and one-half miles upstream from
Sportsman's Park. Ms. Yandell's body was nude, except for a black bra pushed up over
her shoulders. Officers responded and observed that Ms. Yandell's scalp was open. A
search was conducted of the area but no additional evidence was found.
Dr. Norman Thiersch, a medical pathologist, conducted an autopsy the following
day and determined that the cause of Ms. Yandell's death was a blow to her head by a
blunt object. There were also signs of strangulation. Dr. Thiersch swabbed Ms.
Yandell's mouth, anus, and vagina. Dr. Thiersch found spermatozoa on the vaginal
swabs.
Ms. Yandell's homicide remained unresolved for over 15 years. In 2008, the
Yakima police had the swabs further tested. Spermatozoa were found on both the vaginal
swab and the oral swab. A DNA analysis of the spermatozoa was completed and the
results were entered into CODIS.2 On May 20,2009, a match was discovered between
the DNA found on Ms. Yandell's body and a DNA profile in CaDIS. Further testing
confirmed that the DNA matched Mr. Stafford.
2 Combined DNA Index System.
No. 29033-6-II1 State v. Stafford
Yakima County officers went to Mr. Stafford's home in Yakima, handcuffed him,
took him to police headquarters, and interrogated him. Yakima County charged Mr.
Stafford with Ms. Yandell's homicide on May 26, 2009. Later, and by amended
information, the State charged Mr. Stafford with aggravated first degree murder and first
degree rape ofMs. Yandell.
Prior to trial, Mr. Stafford moved to suppress his statements made during the
interrogation, claiming that officers ignored his request for counsel. A CrR 3.5 hearing
was held to determine the admissibility of Mr. Stafford's statements. The recording of
the interrogation was played at the hearing. The first mention of the right to counsel came
at the very beginning of the interview. Yakima Police Lieutenant Noland Wentz handed
Mr. Stafford a list of rights and asked him to follow along. In going over the list,
Lieutenant Wentz asked, "Do you understand that this statement is being recorded?"
Report of Proceedings (RP) at 43. Mr. Stafford responded, "Yes, I (inaudible) hear that.
And I understand that I should have an attorney present most, pretty soon." RP at 43.
Lieutenant Wentz replied, "Okay. Well, let me go through this." RP at 43.
After a few biographical questions, Lieutenant Wentz then went over Mr.
Stafford's constitutional rights. He asked that Mr. Stafford write his initials by each right
as they were addressed. Lieutenant Wentz informed Mr. Stafford that he had the right to
No. 29033-6-111 State v. Stafford
an attorney before answering any questions and also during questioning. Mr. Stafford
said he understood the rights as explained by Lieutenant Wentz. Lieutenant Wentz asked
Mr. Stafford ifhe wished to talk. Mr. Stafford responded that he wanted to know what
was going on. Lieutenant Wentz further explained the right to counsel.
[Lieutenant Wentz:] And I haven't filled you in entirely yet, so. Do you understand that you may r6-claim any of these rights at any time during this statement, including the right to stop questioning altogether and the right to the presence of an attorney? [Mr. Stafford:] Yes [Lieutenant Wentz:] What does that mean to you? [Mr. Stafford:] That means that if I want, you guys will go get an attorney before we go any further than we are right at this moment. [Lieutenant Wentz:] And it means that if we decide-if you decide to talk to me at some time and you decide at some point that-while you're talking to me, that you want to change that and ask for an attorney, we stop. [Mr. Stafford:] Yeah, that's what I just said.
RP at 45-46. Mr. Stafford signed an explanation of rights.
Next, Lieutenant Wentz gave Mr. Stafford a waiver of constitutional rights.
Lieutenant Wentz explained,
[Lieutenant Wentz:] Well, this is a (inaudible) waiver of constitutional rights. This is if you're willing to talk with me to begin with. [Mr. Stafford:] Yeah, I'm not going to sign none of that unless an attorney asks me to sign something like that. [Lieutenant Wentz:] Okay. Well, I'm not an attorney. [Mr. Stafford:] Right. [Lieutenant Wentz:] And I told you before that I can't advise you. [Mr. Stafford:] Right.
[Lieutenant Wentz:] All right. What I'm going to do is kind of tell you a little story. [Mr. Stafford:] Okay, tell me a little story.
RP at 46-47.
Lieutenant Wentz told Mr. Stafford of how the body of Ms. Yandell was found in
the river and asked Mr. Stafford about his connection to the Yakima area. Mr. Stafford
responded to Lieutenant Wentz's questions. He denied knowing Ms. Yandell or Mr.
Sinden. Lieutenant Wentz then told Mr. Stafford that he was a person of interest in the
case. Mr. Stafford denied any knowledge of involvement in the matter. Lieutenant
Wentz also told Mr. Stafford that Ms. Yandell was sexually assaulted before she was
murdered and that Mr. Stafford's DNA was found. Mr. Stafford disagreed. After more
questions, Mr. Stafford requested an attorney, saying, "I need an attorney, you know? 1
mean, you guys are-it looks like you're serious about this shit, so 1 guess it's time for me
to get serious about it." RP at 65.
Mr. Stafford argued to the trial court that all of his statements should be
suppressed because he was denied the right to counsel. He contended that he invoked the
right to counsel during the advisement of rights. He testified that he asked for an attorney
three or four times and assumed that an attorney was on the way. He admitted to having
prior experience with reading rights and was familiar with Miranda 3 warnings.
The trial court found that Mr. Stafford did not unequivocally request an attorney
until the officers stopped the interview. The court explained that Mr. Stafford's refusal to
sign the waiver was not an unequivocal assertion of his right to an attorney. The State
offered at trial, and the court admitted Mr. Strafford's statements made prior to the
request for counsel.
At trial, Dr. Roger Vielbig testified that he was with the group of Boy Scouts when
Ms. Yandell's body was found. He said that Ms. Yandell had blood on her face and
bruises on her knees. Regarding the location, he testified that the portion of the river
. where Ms. Yandell's body was found had deep channels and a swift current. He noted
that entering the river in that location was dangerous. A person could be towed under and
suffer bumps, bruises, and scratches from the logs and rocks in the river.
Mr. Sinden also testified. He recounted the events of the evening, including
passing out in the park and walking to the Wilkeys without Ms. Yandell. He also testified
that he and Ms. Yandell came to Yakima about three weeks prior to the incident and were
looking for work picking cherries. Mr. Sinden said that he and Ms. Yandell were always
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
together and neve); did anything apart. Mr. Sinden also said that he did not know Mr.
Stafford.
Theresa LaFray was called to testify for the State. A week prior to being called to
testify, Ms. LaFray came forward with new information. Mr. Stafford objected, and
argued that her testimony was more prejudicial than probative, was uncorroborated, was
inconsistent with information she provided in prior interviews, and was disclosed
untimely. The trial court conducted a hearing outside the presence of the jury to hear
argument and consider Mr. Stafford's objections. The court overruled Mr. Stafford's
objections, and noted that the objections provided good fodder for cross-examination.
The new information consisted of the following: Ms. LaFray testified that one
night during the middle of the summer in 1993, Mr. Stafford showed up at her house
covered in blood. At the time, Mr. Stafford lived next door with his sister. Ms. LaFray
estimated that her home was about three-quarters of a mile from Sportsman's Park. Mr.
Stafford told Ms. LaFray that he was in a fight with some Mexicans and wanted to know
how to get blood out of his clothes. Ms. LaFray told Mr. Stafford, "[D]on't say another
word. 1 want you to get in the shower and throw your clothes out to me and 1 will wash
them for you, and 1 will tell you when they are washed and dried. And then leave." RP at
1454. According to Ms. LaFray, Mr. Stafford had no injuries but had blood on his jeans,
t-shirt, over-shirt or light jacket, and the top of his underwear band. After Ms. LaFray
returned Mr. Stafford's clothes, he left as directed.
Ms. LaFray admitted that she did not come forward with this information until the
middle of trial. She came forward because she thought there was a chance that Mr.
Stafford would not be convicted and felt like she needed to come forward even though
she was scared. She also said that she had been stressed over the matter and felt that she
needed to report it. She admitted that she did not like Mr. Stafford.
Dr. Thiersch testified to Ms. Yandell's autopsy results. Dr. Thiersch attributed
Ms. Yandell's death to a blunt impact to the head with bruising of the brain. Ms.
Yandell's scalp was lacerated on the front of her head and her skull was fractured. On the
back of her head, there were four more lacerations with skull fractures. Dr. Thiersch
testified that the skull fractures were significant, lethal injuries causing damage to the
brain, and that these injuries were consistent with being hit with an object. He said that
floating down the river would not have caused the lethal injuries.
He also noted evidence of strangulation on her body. Ms. Yandell had bruising on
her chin and along the side of her face and hemorrhages in the structure of her neck. Dr.
Thiersch concluded that the head injuries and strangulation appeared to have occurred
about the same time.
Dr. Thiersch found evidence of defensive wounds on Ms. Yandell's arms, legs,
and feet. In addition, Dr. Thiersch saw injuries with a linear pattern on Ms. Yandell's left
thigh, right hip, lower abdomen, and the back of her left leg. He testified that these could
have been caused by someone dragging her or possibly by bumping on rocks and
branches when floating down the stream. He also testified that the bruises were purple or
red, which was indicative of being caused while still alive. Dr. Thiersch estimated that
Ms. Yandell's body was in the water for at least a couple of hours, perhaps longer.
Dr. Thiersch testified that he found spermatozoa on the vaginal swabs taken from
Ms. Yandell. He said that the spermatozoa could have been up to seven days old when
they were found, depending on temperature and other conditions. However, he said
spermatozoa typically last only 24 to 30 hours. Dr. Thiersch further testified that he was
unable to tell whether Ms. Yandell was raped or had consensual Syx. He was also unable
to tell whether the person Ms. Yandell had sex with was the same person who inflicted
the lethal head injuries.
The State called Valencia Ward, a DNA analyst for Orchid Cellmark, to testify
about the 2008 DNA testing of the vaginal and oral swabs. Ms. Ward stated that she did
not personally perform the DNA testing of the swabs. Mr. Stafford objected to Ms. Ward
testifying about the DNA tests based on Crawfordv. Washington, 541 U.S. 36, 124 S. Ct.
1354, 1581. Ed. 2d 177 (2004) and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129
S. Ct. 2527,1741. Ed. 2d 314 (2009). The trial court overruled the objection based on
the appellate court decision of State v. Lui, 153 Wn. App. 304,221 P.3d 948 (2009), affd,
l79Wn.2d457, 315 P.3d493 (2014).
Ms. Ward testified that the person who personally tested the swabs no longer
worked for Orchid Cellmark. She also testified that each case processed in her lab goes
through a significant review process. Ms. Ward explained that she reviews all work in
the lab with a second review completed by another person. Ms. Ward testified that for
Mr. Stafford's case, she reviewed the entire case file sent to her by the Yakima Police
Department and then generated a report. Ms. Ward was one of the reviewers for every
report that was submitted for Mr. Stafford's case and personally signed the reports before
sending them.
Ms. Ward testified that DNA was found on the swabs of Ms. Yandell's mouth and
her vagina, and this DNA matched (to a high mathematical probability) Mr. Stafford's
DNA profile. Regarding these results, Ms. Ward testified that she did not simply rely on
the conclusions made by other analysts. Rather, she came to her own conclusions. In
reviewing Mr. Stafford's case, Ms. Ward found no evidence of contamination. Also, she
found no inconsistency in raw data or case file information that caused her professional
concern.
After both sides rested, the trial court dismissed the count for first degree rape.
However, the court allowed the State to argue the elements of first degree rape to support
the aggravating factor for the other count of aggravated first degree murder.
The jury was asked, by special verdict form, to find the aggravating circumstance
that the murder was committed in the course of, in furtherance of, or in immediate flight
from the crime of first or second degree rape. The jury was instructed on the elements of
first degree rape. The jury was also instructed in pertinent part regarding the special
verdict form:
Because this is a criminal case all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form "yes", you must unanimously be satisfied beyond a reasonable doubt that ''yes'' is the correct answer. If you have reasonable doubt as to the question, you must answer "no". Because this is a criminal case, each ofyou must agree for you to return a verdict. When all of you have so agreed, fill in the proper form of verdict or verdicts to express your decision.
Clerk's Papers (CP) at 43-44. Mr. Stafford did not object to these instructions.
The jury found Mr. Stafford guilty of aggravated first degree murder and answered
''yes'' on the special verdict form. CP at 11. The court imposed a sentence of life without
the possibility of parole.
ANALYSIS
1. Whether the trial court erred in admitting Mr. Stafford's custodial statements
We review a trial court's challenged findings of fact from a CrR 3.5 suppression
hearing for substantial evidence. State v. Grogan, 147 Wn. App. 511, 516, 195 P.3d 1017
(2008). '" Substantial evidence is evidence sufficient to persuade a fair-minded, rational
person of the truth of the finding.'" Id. (quoting State v. Solomon, 114 Wn. App. 781,
789,60 P.3d 1215 (2002)). We apply de novo review to the court's challenged
conclusions of law that are derived from the findings of fact. Id. (quoting Solomon, 114
Wn. App. at 789).
Mr. Stafford contends that once he made even an equivocal request for an attorney
during the police interrogation, the officer was prohibited from continuing the
interrogation and could only ask questions clarifying his request.
The Fifth and Sixth Amendments to the United States Constitution guarantee the
right to counsel. The Fifth Amendment prohibition against compelled self-incrimination
requires that custodial interrogation be preceded by advice to the accused that he or she
has the right to remain silent and the right to the presence of an attorney. Miranda v.
Arizona, 384 U.S. 436,479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Once the right to
counsel is invoked, the police cannot initiate further interrogation or seek a waiver until
the suspect has an opportunity to meet with counsel and, further, that counsel must be
present during any future interrogation. State v. Warness, 77 Wn. App. 636, 639,893
P.2d 665 (1995).
A defendant's request for an attorney must be unequivocal. State v. Nysta, 168
Wn. App. 30,41,275 P.3d 1162 (2012). To be unequivocal, the defendant must
sufficiently and clearly articulate his desire to have counsel present so that a reasonable
police officer under the circumstances would understand the statement to be a request for
an attorney. Id. (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129
L. Ed. 2d 362 (1994)). The courts look to the specific wording of the accused's statement
to police and the circumstances leading up to the request to determine whether the
accused unequivocally invoked his or her right to counsel. Smith v. Illinois, 469 U.S. 91,
97-98, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).
Where an accused makes an ambiguous or equivocal statement regarding the
invocation of his or her rights, officers may carry on questioning. In re Pers. Restraint of
Cross, 180 Wn.2d 664,682,327 P.3d 660 (2014). Law enforcement officers have no
obligation to ask clarifYing questions or to cease the interrogation. Id. "If a defendant
fails to unequivocally invoke his Miranda rights, a waiver may be inferred when a
defendant freely and selectively responds to [further] police questioning." Id. at 687.
Mr. Stafford did not invoke his right to counsel in the beginning of the interview.
He did not make an unequivocal request when he said that he understood that he should
have an attorney present. Nor did he make an unequivocal request when he refused to
sign the consent form. Mr. Stafford's continuing to answer police questions allows us to
infer his nonassertion of his rights.
Even if the request was equivocal, the State did not have a duty to stop
interrogation and ask for clarification simply because he had not expressly waived his
rights. "A suspect may choose to invoke [Miranda] rights at any time prior to or during
questioning." Id. at 682. Miranda rights must be invoked unambiguously. State v.
Piatnitsky, 180 Wn.2d 407,413,325 P.3d 167 (2014), cert. denied, 135 S. Ct. 950 (2015).
Accordingly, a defendant's request for an attorney must be unambiguous, regardless of
when the request is made. Law enforcement does not need to ask for clarification on
whether the defendant is invoking Miranda rights. Id. at 415. Here, there was no need
for Lieutenant Wentz to ask for clarification ofMr. Stafford's statement given during the
advisement of rights.
The court properly concluded that Mr. Stafford invoked his right to have counsel
present during questioning when he said "I need an attorney, you know?" RP at 65. Prior
to this statement, Mr. Stafford did not invoke his Miranda right to counsel but, instead,
waived the right by voluntarily answering Lieutenant Wentz's questions. The trial court
did not err in admitting Mr. Stafford's statements. Mr. Stafford's right to counsel was not
violated.
2. Whether the trial court's decision to admit the forensic scientist's DNA testimony violated Mr. Stafford's constitutional right to confront his accuser
We apply de novo review to confrontation clause challenges. State v. Jasper, 174
Wn.2d 96, 108,271 P.3d 876 (2012). Mr. Stafford contends that Ms. Ward's testimony
violated the confrontation clause because she testified about the DNA analysis and match
with Mr. Stafford even though she was not the person who perfonned the DNA tests.
The Sixth Amendment confrontation clause provides that in all criminal
prosecutions, the accused shall enjoy the right to be confronted with the witnesses against
them. U.S. CONST. amend. VI. This right is binding on the states through the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400, 403,85 S. ct. 1065, 13 L. Ed. 2d 923
(1965). Similarly, article I, section 22 of the Washington Constitution provides that in
criminal prosecutions, the accused shall have the right to meet the witnesses against him
face to face. Here, the United States Constitution and the Washington Constitution
compel the same result. See Lui, 179 Wn.2d at 468.
The confrontation clause prohibits the admission oftestimonial statements against
a defendant unless the witness making the statements appears at trial or the defendant has
a prior opportunity for cross-examination. Melendez-Diaz, 557 U.S. at 309. Testimonial
statements include documents created solely for an evidentiary purpose, made in the aid
of a police investigation. Bullcoming v. New Mexico, _ U.S. _, 131 S. Ct. 2705, 2717,
180 L. Ed. 2d 610 (2011). A witness is a declarant who makes a factual statement to a
tribunal. Lui, 179 Wn.2d at 482. "If the witness's statements help to identify or inculpate
the defendant, then the witness is a 'witness against' the defendant." Id.
The Washington Supreme Court in Lui determined that the confrontation clause is
not violated when an expert witness at trial presents an independent DNA analysis based
on data generated by work of others in the DNA testing process. "[T]he DNA testing
process does not become inculpatory and invoke the confrontation clause until the final
step, where a human analyst must use his or her expertise to interpret the machine
readings and create a profile." Id at 486. When DNA evidence is presented, the witness
against the defendant is the final analyst who examines the machine-generated data,
creates a profile, and makes a determination that the defendant's profile matches some
other profile. Id. at 489.
"An expert witness may not parrot the conclusions of others and circumvent the
confrontation clause[.] An expert may, however, rely on the work oflaboratory
technicians when reaching his or her conclusion." Id. at 484. Other persons who may
have contributed to certifying a DNA match by participating in the DNA testing process
are not a witness against a defendant. [d. at 486.
Based on Lui, the testimony of Ms. Ward regarding the DNA results did not
violate the confrontation clause. As an expert witness for the State, Ms. Ward reviewed
Mr. Stafford's entire file and generated a report. She also reviewed the reports of others
in the lab. From the data, she was able to determine a match between the DNA found on
Ms. Yandell and Mr. Stafford's DNA. Ms. Ward did not rely on the conclusions made by
other analysts but reached her own conclusions.
The analyst who actually ran the test did not need to be the person who presented
the evidence. That analyst was not a witness against Mr. Stafford, but rather facilitated
Ms. Ward's role as an expert witness. Mr. Stafford's right to confront each witness
against him was not violated by Ms. Ward's DNA testimony.
3. Whether the trial court erred when it admitted the new testimony ofTheresa LaFray
Mr. Stafford contends that the testimony of Theresa LaFray should have been
excluded because it was irrelevant and its probative value was substantially outweighed
by the danger of unfair prejudice. He argues that Ms. LaFray's testimony regarding her
encounter with Mr. Stafford was irrelevant because she could not identify the date it
occurred. He also argues that the validity of the testimony is questionable because Ms.
LaFray did not like Mr. Stafford, was late in the disclosure, and admitted that she came
forward only because she was afraid he would not be convicted.
The detennination of relevance is within the broad discretion of the trial court and
will not be disturbed absent a manifest abuse of discretion. State v. Swan, 114 Wn.2d
613,658, 790 P.2d 610 (1990). Similarly, a detennination of whether the probative value
outweighs substantial prejudice is within the broad discretion of the trial court and will
only be reversed in the exceptional circumstance of a manifest abuse of discretion. State
v. Gould, 58 Wn. App. 175, 180,791 P.2d 569 (1990).
Generally, all relevant evidence is admissible and all irrelevant evidence is
inadmissible. ER 402. Relevant evidence is any "evidence having any tendency to make
the existence of any fact that is of consequence to the detennination of the action more
probable or less probable than it would be without the evidence." ER 401. "Relevancy
means a logical relation between evidence and the fact to be established. Any evidence
which tends to identify the accused as the person guilty is relevant." State v. Whalon, 1
Wn. App. 785, 791, 464 P.2d 730 (1970) (citation omitted). Material evidence is also
admissible. Id. Material evidence is evidence that logically tends to prove a defendant's
connection with a crime either alone or from whatever inferences may be drawn when it
is considered with other evidence. Id. "Where identity of the perpetrator of a crime is at
issue, any evidence tending to identify the accused as the guilty person is relevant." State
v. Coe, 101 Wn.2d 772, 781-82, 684 P.2d 668 (1984).
Even relevant evidence can be excluded "if its probative value is substantially
outweighed by the danger of unfair prejudice." ER 403. Unfair prejudice is that which is
more likely to arouse an emotional response rather than a rational decision by the jury.
Gould, 58 Wn. App. at 183. Crucial consideration is given to the word "unfair" when
applying ER 403 to prejudicial evidence. State v. Bernson, 40 Wn. App. 729, 736, 700
P.2d 758 (1985). "In almost any instance, a defendant can complain that the admission of
potentially incriminating evidence is prejudicial in that it may contribute to proving
beyond a reasonable doubt he committed the crime with which he is charged. Addition of
the word 'unfair' to prejudice obligates the court to weigh the evidence in the context of
the trial itself, bearing in mind fairness to both the State and defendant." Id.
The trial court did not abuse its discretion in allowing the testimony of Ms. LaFray.
The testimony that Mr. Stafford came to her house covered in blood on a midsummer
night in 1993 was relevant to the crime charged. A logical relation exists between Ms.
LaFray's testimony and Mr. Stafford's alleged involvement in Ms. Yandell's death. The
validity and credibility of Ms. LaFray's testimony and her alleged bias against Mr.
Stafford were questions for the jury. See State v. Thomas, 150 Wn.2d 821,874-75,83
P.3d 970 (2004). Mr. Stafford had the opportunity to challenge the credibility of Ms.
LaFray's statements during cross-examination. See ER 611(b). The trial court did not
abuse its discretion when it considered Ms. LaFray's testimony to be relevant.
The trial court also did not abuse its discretion when it determined that the
probative value of Ms. LaFray's testimony was not substantially outweighed by its unfair
prejudice. The fact that Mr. Stafford went to Ms. LaFray's home covered in blood is not
likely to arouse an emotional response rather that a rational decision by the jury. Also,
despite Mr. Stafford's contention, the testimony is not unfairly prejudicial simply because
he considers it to be the only evidence besides the DNA evidence that is indicative of
guilt. While the testimony is naturally prejudicial because it incriminates Mr. Stafford in
the crime charged, this alone is not a reason to conclude that the evidence was unfairly
prejudicial. Rather, it was highly relevant information that a jury would likely consider
rationally rather than emotionally. The trial court was well within its discretion when it
determined that the unfair prejudice of the evidence, if any, was not substantially
outweighed by its probative value.
4. Whether the State presented sufficient evidence to prove the essential elements of aggravated first degree murder
Mr. Stafford contends that the State failed to prove the essential elements of
aggravated first degree murder. He focuses his attention on the elements of identity,
causation, intent, and premeditation. He also contends that there is no evidence that
connects him to the murder-that at the most, the evidence shows that he had consensual
sex with Ms. Yandell.
The standard of review for a sufficiency of the evidence challenge in a criminal
case is '" whether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.'" State v. Bingham, 105 Wn.2d 820,823, 719 P.2d 109
(1986) (emphasis in original) (quoting Jackmn v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781,61 L. Ed. 2d 560 (1979)). A defendant challenging sufficiency ofthe evidence
"admits to the truth ofthe State's evidence and all inferences that can reasonably be
drawn from that evidence." State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).
We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses,
and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75. "[I]nferences
based on circumstantial evidence must be reasonable and cannot be based on
speculation." State v. Vasquez, 178 Wn.2d 1, 16,309 P.3d 318 (2013).
In a criminal prosecution, the Fourteenth Amendment's due process clause
requires the State to prove each essential element ofthe crime charged beyond a
reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 1471.
Ed. 2d 435 (2000).
The jury instructions contained the essential elements of first degree murder:
(1) That on or about June 13, 1993, the defendant acted with intent to cause the death of Shawna Yandell; (2) That the intent to cause the death was premeditated; (3) That Shawna Yandell died as a result of the defendant's acts; and (4) That any of these acts occurred in the State of Washington.
CP at 29. The jury was also asked to find the aggravating circumstance that the murder
was committed in the course of, in furtherance of, or in immediate flight from the crime
of first or second degree rape. The evidence is sufficient to establish the elements of
aggravated first degree murder.
Identity and Causation. The State presented sufficient evidence to show that Mr.
Stafford caused Ms. Yandell's death. The jury could infer from the evidence that Mr.
Stafford was with Ms. Yandell on the night of her death. Mr. Stafford's DNA taken from
the spermatozoa found in Ms. Yandell's vagina and mouth establishes that he had contact
with her prior to her death. The presence of the spermatozoa also sets the time frame of
the contact. While Dr. Thiersch said that semen could last for up to 7 days in the vagina,
he also testified that the typical time frame was more like 24 hours. Considering that the
autopsy was conducted the morning after Ms. Yandell's body was found, the 24 to 30
hour time frame is consistent with Mr. Stafford having contact with Ms. Yandell on the
night she died.
The jury could also infer that Mr. Stafford was the person who caused Ms.
Yandell's death. The testimony ofMs. LaFray established that Mr. Stafford was seen
covered in blood sometime during the summer when Ms. Yandell was killed. Although
Mr. Stafford told Ms. LaFray that he was in a fight with a bunch of Mexicans, the fact
that he had no wounds on his body, yet was covered in blood, allowed the jury to
disbelieve Mr. Stafford's explanation, and conclude that the truth was more sinister. The
jury could find that the amount of blood on Mr. Stafford was consistent with the head
injury suffered by Ms. Yandell. Furthermore, Mr. Stafford was seen covered in blood
close to the location where Ms. Yandell was last seen alive. Ms. LaFray's home was less
than one mile from Sportsman's Park.
Intent. The State presented sufficient evidence that the person who inflicted Ms.
Yandell's injuries had the intent to kill her. The cause of death was blunt force trauma by
multiple blows to the head. The force was strong enough to fracture her skull more than
once. The jury could find that a person had to act with intent to cause such wounds.
Also, Ms. Yandell had multiple scrapes and bruises on her body that Dr. Thiersch testified
were consistent with defensive wounds. The defensive wounds do not point to an
24 No. 29033~6-II1 State v. Stafford
accidental death but instead an intentional act. Considering that the jury could infer that
Mr. Stafford was present with Ms. Yandell on the night of her death and that he in fact
did cause her death, Ms. Yandell's injuries allowed the jury to also conclude that Mr.
Stafford acted with the requisite intent to kill.
Premeditation. The State also presented sufficient evidence of premeditation.
"Premeditation" involves a deliberate formation of and reflection on the intent to take a
human life. State v. Hoffman, 116 Wn.2d 51,82, 804 P.2d 577 (1991). It includes the
mental process of thinking beforehand, deliberation, reflection, weighing, or reasoning
for a period oftime, however short. Gentry, 125 Wn.2d at 597~98 (quoting State v.
Ollens, 107 Wn.2d 848,850, 733 P.2d 984 (1987)). Premeditation must involve more
than a moment in point oftime. RCW 9A.32.020(1).
Both direct and circumstantial evidence can be used to establish premeditation.
Bingham, 105 Wn.2d at 823-24. Circumstantial evidence can be used where the
inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict
is substantial. Id. at 824. Facts that have been found to support an inference of
premeditation are multiple wounds inflicted with a knife or other weapon, signs of a
struggle, striking a victim from behind, and evidence that sexual assault or robbery was
an underlying motive. Gentry, 125 Wn.2d at 599.
25 No. 29033-6-111 State v. Stafford
The autopsy evidence shows that Mr. Stafford engaged in some sort of sexual
activity with Ms. Yandell and then killed her. There was also evidence of rape as an
underlying motive, considering Ms. Yandell's multiple defensive wounds. The numerous
defensive and offensive wounds, including both strangulation and severe head wounds, is
evidence that the attack was prolonged and savage. As noted above, this type of evidence
is sufficient for a jury to infer premeditation.
Aggravating Factor. The State also presented sufficient evidence to support the
aggravating factor, i.e., that the murder was committed in the course of, or in furtherance
of, or in immediate flight from the crime of first or second degree rape. Ms. Yandell was
found with Mr. Stafford's spermatozoa in both her vagina and her mouth. Additionally,
Ms. Yandell's body showed evidence of defensive wounds. Ms. Yandell did not know
Mr. Stafford. From this evidence, the jury could infer that the sex was not consensual and
that Mr. Stafford murdered Ms. Yandell in the course of, in furtherance of, or in
immediate flight from rape.
In conclusion, after reviewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found, beyond a reasonable doubt, that Mr.
Stafford committed aggravated first degree murder.
5. Whether the jury instruction, which required the jury to be unanimous when answering the special verdict form, was erroneous
Mr. Stafford contends that the trial court improperly instructed the jury that a
unanimous decision was needed to answer "no" on the special verdict form. Instead, he
contends that trial court was required to give a nonunanimity instruction as required by
State v. Bashaw, 169 Wn.2d 133, 146-47,234 P.3d 195 (2010), overruled by State v.
Guzman Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012).
We review alleged errors oflaw in jury instructions de novo. Boeing Co. v. Key,
101 Wn. App. 629, 632, 5 P.3d 16 (2000). Failure to timely object usually waives the
issue on appeal, including issues regarding instructional errors. RAP 2.5(a); State v.
Williams, 159 Wn. App. 298, 312, 244 P.3d 1018 (2011). This court has held that a trial
court's failure to instruct a jury that it could be nonunanimous to acquit a defendant of an
aggravating factor is not an issue of constitutional magnitude. State v. Guzman Nunez,
160 Wn. App. 150, 159, 162-63,248 P.3d 103 (2011), ajJ'd in part by Guzman Nunez,
174 Wn.2d 707.
Mr. Stafford did not object to the unanimity instruction and, therefore, waives the
right to raise the issue on appeal. In any case, his challenge to the jury instruction fails.
Prior to the Washington Supreme Court's recent decision in Guzman Nunez, the
court in Bashaw recognized the nonunanimity rule developed in State v. Goldberg, 149
Wn.2d 888, 72 P.3d 1083 (2003), that "a unanimous jury decision is not required to find
that the State has failed to prove the presence of a special fmding increasing the
defendant's maximum allowable sentence." Bashaw, 169 Wn.2d at 146. However, in
Guzman Nunez, our Supreme Court reconsidered and overruled the nonunanimity rule in
Bashaw. Guzman Nunez, 174 Wn.2d at 709. The Guzman Nunez court concluded that
such a rule "conflicts with statutory authority, causes needless confusion, does not serve
the policies that gave rise to it, and frustrates the purpose ofjury unanimity." Id. at 709
10. The court concluded that the challenged jury instructions, which required a
unanimous "yes" or "no" decision on the special verdict form, were correct. Id. at 710
11, 719. Here, based on Guzman Nunez, the trial court correctly instructed the jury that it
had to unanimously agree ''yes'' or "no" when answering the special verdict fonn.
Statement ofAdditional Grounds for Review
In his statement of additional grounds for review, Mr. Stafford contends that his
counsel was ineffective for allowing the court to charge him with rape even though the
prosecution was barred by the statute of limitations.
"To demonstrate ineffective assistance of counsel, a defendant must make two
showings: (1) defense counsel's representation was deficient, i.e., it fell below an
objective standard of reasonableness based on consideration of all the circumstances; and
(2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a
reasonable probability that, except for counsel's unprofessional errors, the result of the
proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35,
899 P.2d 1251 (1995) (emphasis in original).
Mr. Stafford's counsel was not deficient for consenting to the rape charge. The
statute of limitations on the rape charge had not expired. The statute of limitations on
first degree rape is 10 years from the date of commission or one year from the date on
which the identity of the suspect is conclusively established by DNA testing or
photograph, whichever is later. State v. McConnell, 178 Wn. App. 592, 603, 315 P.3d
586 (2013) (quoting RCW 9A.04.080), review denied, 180 Wn.2d 1015 (2014). Identity
is "conclusively established" when "DNA testing matches the DNA profile of an
unknown suspect to the DNA profile of a known suspect." Id. at 605. Here, Mr.
Stafford's identity as a suspect in Ms. Yandell's rape was conclusively established in May
2009, and he was charged later that month. The statute of limitations for the rape charge
therefore had not run. His counsel's representation was not deficient.
Mr. Stafford also contends that the chain of evidence for the DNA was broken and
that the evidence was tainted. A physical object connected with the commission of a
crime must be satisfactorily identified and shown to be in substantially the same condition
as when the crime was committed before it may properly be admitted into evidence. State
v. Campbell, 103 Wn.2d 1,21,691 P.2d 929 (1984). "'A failure to present evidence of
an unbroken chain of custody does not render an exhibit inadmissible if it is properly
identified as being the same object and in the same condition as it was when it was
initially acquired by the party.'" State v. Picard, 90 Wn. App. 890, 897,954 P.2d 336
(1998) (quoting State v. DeCuir, 19 Wn. App. 130, 135,574 P.2d 397 (1978)). The
witness testifYing to the chain of custody does not need to positively identifY the
challenged evidence and eliminate every possibility of substitution or alteration. State v.
Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002).
Minor discrepancies or uncertainty on the part of the witness affect the weight of
the evidence and not admissibility. Id. (quoting Campbell, 103 Wn.2d at 21). "Evidence
of sloppy police work in gathering physical evidence, such as fingerprints and DNA
samples, or in establishing chain of custody generally is relevant and admissible." State
v. Rafay, 168 Wn. App. 734, 803, 285 P.3d 83 (2012).
The evidence identification report produced by Mr. Stafford in his statement of
additional grounds does not show a broken chain of custody. The report documents how
evidence technician Kristen Drury tracked down the stored evidence from Ms. Yandell's
case and her difficulties in locating the evidence, but it does not show that the chain was
broken. Furthermore, the chain of custody issue was appropriately addressed in the trial
court. Ms. Drury appeared at trial and was subject to cross-examination regarding
interruptions in the chain of custody. Mr. Stafford had the opportunity to discredit the
evidence based on the difficulty in locating it. The evidence was properly admitted.
Affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR: