FILED DWI COURT OF APPEALS WASHINGTON STATE OF
2018 OCT 22 MI 8: 29
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON ) No. 76005-0-1 ) ) DIVISION ONE Respondent, ) ) UNPUBLISHED OPINION v. ) ) JASON LEE GAMACHE, ) ) Appellant. ) FILED: October 22, 2018 )
BECKER, J. — Jason Gamache was convicted of felony murder. The evidence showed that he broke into the home of a sleeping neighbor and
stabbed him to death in the course of stealing his pain medication. We affirm.
FACTS
On the morning of August 2, 2013, Wayne McCune's wife left their home
around 7:00 a.m. to go to work. When she returned around 6:00 p.m., she found
McCune lying dead on the floor. McCune had been stabbed 25 times and his
carotid artery was severed. The file cabinet drawer where McCune kept his pain
medication had been forced open. Two pill bottles, containing hydrocodone-
acetaminophen and Avinza, were found empty.
Auburn police interviewed McCune's neighbor, Ruby Jo Brazeal. She told
them Jason Gamache had been staying with her, but she had not seen him since
the day of McCune's death. Gamache, Brazeal, and McCune all suffered from
chronic health conditions, and regularly took prescription pain medication. In the No. 76005-0-1/2
'past, McCune and Gamache had shared medications. They had a falling out in
2012 when Gamache tried to take some of McCune's pain medication without
permission. Since that time, the two had not had any contact.
The police pieced together Gamache's whereabouts on the day of
McCune's death. Gamache met Brazeal at the nearby Muckleshoot Casino just
before 9:00 a.m. He told her he was leaving to pick up pain medication from the
pharmacy. Surveillance video showed Gamache leaving the casino at 9:01 a.m.
and returning at 10:35 a.m. When he returned, he was wearing different clothes.
Gamache then offered Brazeal roughly 15 hydrocodone-acetaminophen pills and
a pill bottle containing granules from an Avinza capsule. Gamache remained at
the casino until 5:30 p.m. that day.
After leaving the Muckleshoot Casino, Gamache traveled to the
Snoqualmie Casino. Surveillance video showed that Gamache largely remained
in his vehicle,in the casino parking lot over the next five days, until he
approached a shuttle bus driver complaining of pain and dizziness. An
ambulance took him to a nearby hospital where Gamache told a doctor that he
had been mugged. After being treated for dehydration, Gamache left the hospital
and walked back to his vehicle at the Snoqualmie Casino. Officers located him
there on August 7 and arrested him.
In Gamache's vehicle, officers found a single Avinza tablet and a rag
containing what appeared to be blood. Blood on the rag was consistent with
McCune's DNA (deoxyribonucleic acid). A blood stain found on Gamache's shoe
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was also consistent with McCune's DNA. The shirt Gamache was wearing when
he left the Muckleshoot Casino on the morning of the murder was never located.
Gamache initially denied that he had left the Muckleshoot Casino for an
hour and a half that morning. Informed that the casino surveillance video
contradicted his statement, Gamache changed his story and told police that he
left to go to a nearby secondhand store. The store's video surveillance did not
show Gamache at the store. Gamache gave conflicting statements to the police
about the clothes he was wearing on the day of the murder and his whereabouts
in the five days following the murder.
The State charged Gamache with felony murder in the first degree
predicated on both second degree robbery and attempted second degree
robbery. After a four week trial, the jury convicted Gamache as charged. He
was sentenced to 280 months.
Sufficiency of the Evidence
Gamache's first challenge is to the sufficiency of the evidence supporting
felony murder. "The test for determining the sufficiency of the evidence is
whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt." State v.
Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). "'When the sufficiency of the
evidence is challenged in a criminal case, all reasonable inferences from the
evidence must be drawn in favor of the State and interpreted most strongly
against the defendant." Kintz, 169 Wn.2d at 551, quoting State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). Although Gamache contested the
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State's evidence at trial, the presence of conflicting evidence does not mean the
guilty verdict was not supported by sufficient evidence. Reviewing courts "defer
to the trier of fact on issues of conflicting testimony, credibility of witnesses, and
the persuasiveness of the evidence." State v. Killinqsworth, 166 Wn. App. 283,
287, 269 P.3d 1064, review denied, 174 Wn.2d 1007, 278 P.3d 1112(2012).
To convict Gamache of felony murder, the State had to establish that
Gamache killed McCune "in the course of or in furtherance" of a predicate felony,
or "in immediate flight therefrom." RCW 9A.32.030(1)(c)(5). The homicide must
be within the "res gestae" of the predicate felony, i.e., "there was a close
proximity in terms of time and distance between the felony and the homicide."
State v. Leech, 114 Wn.2d 700, 706, 790 P.2d 160 (1990). Moreover, the State
must prove "that the death was a probable consequence of the felony and must
specifically prove that the felony began before the killing." State v. Wang,
Wn. App._,424 P.3d 1251, 1257(2018), quoting State v. Irbv, 187 Wn. App.
183, 201, 347 P.3d 1103(2015), review denied, 184 Wn.2d 1036, 379 P.3d 953
(2016).
Gamache argues that any connection between him, McCune's death, and
the robbery of McCune's pills was purely speculative, and therefore the State
could not show that McCune's death was a consequence of the robbery.
Gamache disregards the extensive evidence—circumstantial, but not
speculative—that he forcibly took McCune's pills and McCune died in the course
of the robbery. The drawer holding McCune's medication was found pried open,
while the rest of McCune's home appeared to be left undisturbed. Gamache
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knew where McCune kept his medication. Gamache knew he was not welcome
in McCune's home. Gamache had no reason to enter McCune's home other
than to obtain McCune's pain medication.
Two bottles of pills were empty, and on the day of McCune's murder,
Gamache provided Brazeal with pills matching those missing from McCune's
home. When questioned by police, Gamache repeatedly lied about his
whereabouts on August 2. Gamache also lied about the shirt he was wearing
when he left the casino.
Gamache had blood matching McCune's DNA profile on his shoes and on
a rag in his car. At trial, the State's forensic scientist testified the blood "matches
the DNA profile of Wayne McCune. The estimated probability of selecting an
unrelated individual at random from the United States population with a matching
profile is 1 in 260,000." The State's forensic scientist stated that "the DNA typing
profile obtained from the bloodstains on the right shoe was consistent with
coming from a male individual, and matches the DNA profile of Wayne McCune.
And the estimated probability of selecting an unrelated individual at random from
the United States population with a matching profile is 1 in 850 quadrillion." DNA
found on McCune's empty hydrocodone-acetaminophen bottle was also
consistent with a mixture of McCune's and Gamache's DNA. It was "230 times
more likely that the observed DNA profile occurred as a result of a mixture of
Wayne McCune and Jason Gamache than if it originated from Wayne McCune
and an unrelated individual selected at random from the United States
population."
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We conclude there was sufficient proof that Gamache killed McCune in
the course of robbing him.
The court allowed the jury to consider attempted robbery as well as
robbery as the predicate for felony murder. Gamache argued that the evidence
was insufficient to support a finding of attempted robbery because there was no
way the jury could find that he fatally stabbed McCune with the intent to steal his
pills, yet failed to complete the theft of the pills. Gamache contends the jury may
not have been unanimous as to the means by which he was guilty of felony
murder, and reversal is the required result. See State v. Lambert, 199 Wn. App.
51, 78, 395 P.3d 1080, review denied, 189 Wn.2d 1017,404 P.3d 499(2017)
(reversing felony murder conviction due to insufficient evidence to support the
alternative means of the predicate burglary).
It does not appear that an attempt is an alternative means of committing
the completed crime. An attempt to commit a crime is defined as an offense
included in the crime itself. RCW 10.61.010. In any event, the evidence was
sufficient to prove Gamache either attempted a robbery or completed a robbery.
Contrary to Gamache's claim, there is no authority holding that a conviction for
attempt can be sustained only if the crime is not completed. Rather, to prove an
attempt, the State must simply show that the defendant acted with the intent to
carry out a crime and took a substantial step towards the completion of that
crime. RCW 9A.28.020. As discussed above, the State presented substantial
evidence from which a juror could infer that Gamache took the substantial step of
entering McCune's home with the intent to take his pain medications. A
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reasonable juror could have found that Gamache at least tried to rob Wayne of
pills and killed him in the course of that attempt, even if the juror lacked certainty
that Gamache actually had McCune's pills with him when he left the house.
Viewing the evidence in the light most favorable to the State, we conclude
it was sufficient to prove that Gamache caused McCune's death in the course of
robbing or attempting to rob him.
Detective Lind's Testimony
Gamache contends he was prejudiced by the admission of evidence
regarding the 2012 incident in which he tried to take McCune's pain pills without
permission. A pretrial hearing was held to determine the admissibility of the
evidence. Auburn Detective David Lind testified that on January 9, 2012,some
18 months before the murder, he was dispatched to respond to a call from
McCune. Lind said McCune told him that Gamache came into his home while
McCune was sleeping and attempted to take his pain medication. According to
Lind, McCune said he and Gamache had similar back problems and had a
history of sharing medication. McCune told Lind that he did not wish to press
criminal charges, but he wanted Gamache to know he was no longer welcome on
his property. Lind testified that he then went across the street to speak to
Gamache. Gamache admitted that he had tried to take some pills when he found
McCune asleep and realized, when McCune woke up, that he had probably
crossed a line. Lind said Gamache was apologetic. The incident ended with Lind
informing Gamache that he was not welcome in McCune's home, and Gamache
confirming that he understood. No. 76005-0-1/8
After hearing Lind's testimony about Gamache's prior act, the trial court
ruled it was admissible to show that Gamache knew where McCune kept his pills
and knew McCune did not want Gamache in his house.
And I'm satisfied the relevance of that is basically four things. One is that they shared medication. Secondly, from the statements of Mr. Gamache basically that Mr. McCune was asleep and it probably wasn't wise to take the pills. It goes to show that he knew where the pills were kept by Mr. McCune. Third, that there was a disagreement or complaint and that, fourth, as a result of that, the officer basically trespassed Mr. Gamache from the McCune residence.
At trial, Lind's testimony about his communications with McCune was kept
to a minimum. At the start of Lind's direct examination, the prosecutor
specifically requested that Lind not get into the specifics. Lind testified that
McCune discussed a dispute he was having with Gamache over pain medication.
"I was told basically that it was a neighbor dispute and that Wayne wanted to try
and keep things civil amongst neighbors. And rather than going down a road of
prosecution and potentially jail, he wanted to try and keep things friendly and
decided that it would be more civil in nature than criminal." Gamache did not
object. Lind moved on to testify about what Gamache said: that he found
McCune sleeping, that he went to get a pill out of cabinet, that McCune woke
up and was surprised, and that he now understood, as a result of the officer's
visit, that whatever agreement he and McCune had as neighbors "was now over
and that he no longer wanted him at his residence."
In closing, the prosecutor emphasized that the testimony was offered to
show Gamache's knowledge:
The Defendant knows where Wayne McCune keeps his drugs. He knows what drugs Wayne McCune has.
8 No. 76005-0-1/9
And that's exactly why that testimony from Officer Lind regarding that January 2012 incident, why that's important. When Officer Lind goes and talks to him, he admits -- he, being Mr. Gamache, admits that he knew where Wayne kept his drugs. He knew what type of drugs he kept, that he shared at times. He knew how to let himself in the home to access those.
Gamache contends admitting Lind's testimony was error because the jury
was able to use it as propensity evidence, the prejudice of the testimony
outweighed its probative value, and there was no limiting instruction. He also
contends Lind's testimony contained hearsay and a portion of it violated the
confrontation clause.
Propensity
Under ER 404(b), "evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." This court reviews the trial court's ruling to
admit or exclude 404(b) evidence for an abuse of discretion. State v. Fisher, 165
Wn.2d 727, 745, 202 P.3d 937(2009). We find no abuse of discretion in the
admission of Lind's testimony as proof that Gamache knew where the pills were
and knew that McCune was unwilling to share them with him.
A trial court may exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice. ER 403. This
balancing of the probative value of a prior act versus its prejudicial effect should
be done on the record. State v. Jackson, 102 Wn.2d 689, 693,689 P.2d 76
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(1984). The absence of a record may preclude effective appellate review.
"Moreover, a judge who carefully records his reasons for admitting evidence of
• prior crimes is less likely to err, because the process of weighing the evidence
and stating specific reasons for a decision insures a thoughtful consideration of
the issue." Jackson, 102 Wn.2d at 694. Gamache contends admitting the
evidence of his prior encounter with McCune was reversible error because the
court did not conduct an express on-the-record balancing.
Failure to balance probative value versus prejudice on the record "requires
reversal only if the error, within reasonable probability, materially affected the
outcome of the trial." State v. Halstien, 122 Wn.2d 109, 126-27, 857 P.2d 270
(1993). If the record as a whole is sufficient to permit meaningful review, a
reviewing court may affirm the introduction of ER 404(b) testimony. State v.
Donald, 68 Wn. App. 543, 547, 844 P.2d 447, review denied, 121 Wn.2d 1024,
854 P.2d 1084 (1993).
Evidence of Gamache's prior attempt to take McCune's pills was highly
probative. McCune's murderer pried open the cabinet where McCune kept his
medication, while leaving other items of value untouched. The trial court
correctly identified the relevant purpose for admitting evidence of Gamache's
earlier confrontation with McCune. It established that Gamache knew the pills
were kept in McCune's cabinet and that he did not have permission to be in
McCune's home. The parties argued about whether the evidence was more
probative than prejudicial. The court instructed the State not to refer to the act as
a "theft", and the overall tenor of the hearing demonstrates the court's awareness
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of the obligation to balance probative value against prejudice even if the court did
not use those specific words. The manner in which the prior act was presented
emphasized its relevance for this proper purpose.
To the extent the court erred in being less explicit than our case law
requires, the error did not materially affect the outcome of the trial. The record as
a whole is sufficient to permit meaningful review, and we conclude the court did
not abuse its discretion in admitting evidence of the previous pill-taking incident
under ER 404(b).
No Limiting Instruction
Gamache contends the trial court should have given a limiting instruction
when Lind testified. Trial courts are not required to provide a limiting instruction
sua sponte. State v. Russell, 171 Wn.2d 118, 124, 249 P.3d 604 (2011).
Defense counsel stated,"We don't have a limiting instruction in mind at this
moment, but we'll think about that ... ." The defense did not offer a limiting
instruction. Because Garnache did not request a limiting instruction, the trial
court did not err by failing to give one.
Hearsay
In the pretrial hearing, the trial court recognized that Detective Lind's
testimony about his conversation with McCune during the prior incident would be
hearsay to the extent that he quoted what McCune said. But because the
significant information about the confrontation would come in through the non-
hearsay statements Gamache made to Lind, the court concluded there would be
no hearsay problem:
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[DEFENSE COUNSEL]: Your Honor, with respect to the hearsay, I would ask that when the officer goes to describe his contact with Mr. McCune that it be simply limited to,"We got a complaint from Mr. McCune," because anything else would just be --
THE COURT: Well, he basically contacted Mr. McCune and I think everything else is going to come out through the statements and the conversation he had with Mr. Gamache. So, but clearly Mr. McCune's statements to the officer are hearsay. The fact that he went there, received a complaint, and talked to the Defendant, and that the Defendant confirmed a lot of the things that I -- or all of the things, I think, that I've just indicated I'm finding relevant. It should be fairly brief, I would think.
By failing to object to the minimal amount of hearsay the officer included in
his recounting of what McCune said, Gamache waived the hearsay issue. Even
were that not the case, the admission of hearsay is subject to harmless error
analysis. State v. Watt, 160 Wn.2d 626, 630, 160 P.3d 640 (2007). Gamache
does not identify any meaningful prejudice resulting from Lind's brief discussion
of his conversation with McCune.
Confrontation Clause
Gamache contends the admission of Lind's testimony about what McCune
said violated the Confrontation Clause because he could not cross-examine
McCune about the January 2012 incident. The confrontation clause "bars
admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination." State v. Koslowski, 166 Wn.2d 409,417,
209 P.3d 479(2009)(internal quotation marks omitted), quoting Davis v.
Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)).
Because Gamache did not raise an objection based on the confrontation
clause, the alleged error is not preserved for review. State v. O'Cain, 169 Wn.
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App. 228, 232, 279 P.3d 926 (2012). In addition, any error was harmless. See
Watt, 160 Wn.2d at 635.
Purpose of Arrest
Gamache claims the court erred by allowing the State to present an
officer's testimony that Gamache was arrested on August 7 for "another matter."
Although he classifies this as prosecutorial misconduct, it is properly
characterized as another ER 404(b) issue.
In the wake of McCune's murder on August 2, 2013, Brazeal's husband
realized his rifle was missing. Because Gamache was staying with the Brazeals,
he became the prime suspect in the rifle's disappearance. The police issued an
arrest bulletin for Gamache. When he was arrested at the Snoqualmie Casino
on August 7, it was for theft of the rifle, not for murder. Ultimately, Gamache was
not charged with stealing the rifle.
At trial, the parties grappled with how to describe the reason for
Gamache's arrest. The evidence implicating him in the murder was largely
undeveloped at the time of the arrest. The State was concerned that the jurors
might think police improperly arrested Gamache based on a mere suspicion of
murder if it was not explained that police had probable cause to arrest him for
stealing a firearm. Gamache countered that testimony about an allegation of a
stolen firearm was evidence of a prior bad act and inadmissible because it was
irrelevant to the charge of murder. The trial court excluded mention of the
firearm as more prejudicial than probative. The court ruled that instead, the jury
13 No. 76005-0-1/14
should simply be informed that the police arrested Gamache based on a bulletin
about an unrelated crime.
Gamache objected that a vague reference to an arrest on a matter
unrelated to the murder could lead the jury to speculate that he had been
involved in another serious crime in addition to the murder. The trial court
dismissed this concern as unrealistic:
THE COURT: I think both the State and the defense are anticipating problems with the jury deliberation that aren't realistic. It is quite common, for example, when somebody's arrested for a warrant and then it leads to something, that the officers testify, we arrested him on something unrelated to this. And that's exactly what happened.
The officer who arrested Gamache at the Snoqualmie Casino testified that
he did so as the result of a "be on the lookout" bulletin from the Auburn Police
Department. The bulletin indicated that Gamache was "a person of interest in a
homicide" and "that there was probable cause to arrest him on a separate
matter."
We conclude the trial court was within its discretion to permit this
testimony about the basis of the arrest. Investigation of the murder went on for
another month before Gamache was charged. Part of the defense strategy at
trial was to call into question the competence of the investigators. The State was
legitimately concerned that if jurors were not informed there was a basis for the
arrest other than suspicion that Gamache was involved in the murder, they would
assume the Auburn police were "cowboys" who had arrested Gamache before
they had developed probable cause.
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Evidence is admissible under ER 404(b)to show the "res gestae" of a
crime if it provides context for the jury to understand the sequence of events
surrounding the crime. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929(1995).
Under this exception to ER 404(b), a party may complete the picture of the story
of the crime rather than having the jury receive a fragmented account. State v.
Tharp, 27 Wn. App. 198, 204-05, 616 P.2d 693(1980), aff'd, 96 Wn.2d 591,637
P.2d 961 (1981). The admission of testimony that Gamache was arrested on
"another matter" was not an abuse of discretion.
Expert Testimony
Gamache argues that the State committed misconduct by leading an
expert witness down a line of questioning aimed at improperly bolstering the
expert's credibility.
The alleged misconduct occurred during the testimony of an associate
medical examiner, Michelle Lubin. Lubin's initial estimate placed McCune's
death in early afternoon. But Lubin testified that she could not rule out that
McCune died during the 9:00 a.m. to 10:35 a.m. window when Gamache was
unaccounted for. The prosecutor followed up by asking Lubin if her opinion was
in line with medical literature and the policies and practices of her office:
Q. Okay. And, then, everything that you've discussed regarding that window, last seen alive, when he's found dead, and sort of all the caveats of the post mortem indicators, is that in line with the reputable, medical literature that you're familiar with? A. Yes. Q. Is that in line with the practice of your colleagues at the King County Medical Examiner's Office? A. Yes, it is. Q. Meaning the other Associate Medical Examiners? A. Yes.
15 No. 76005-0-1/16
Q. And is that view and opinion in line with the practice and policies of the Chief Medical Examiner, Dr. Harruff? A. Yes, it is.
Gamache contends Lubin gave improper opinion testimony. Because he did not
object at the time, there is not a ruling by the trial court to which error can be
assigned. Instead Gamache claims the prosecutor committed misconduct by
eliciting the allegedly improper testimony.
The burden rests on the defendant to show conduct by a prosecutor was
both improper and prejudicial. Fisher, 165 Wn.2d at 747. Once proved,
prosecutorial misconduct is grounds for reversal when there is a substantial
likelihood the improper conduct affected the jury. Defense counsel's failure to
object to the misconduct at trial constitutes waiver on appeal unless the
misconduct is so flagrant and ill-intentioned that it evinces an enduring and
resulting prejudice incurable by a jury instruction. Fisher, 165 Wn.2d at 747.
The State may not use the hearsay statement of a third party to vouch for
its witness. State v. Nation, 110 Wn. App. 651, 662,41 P.3d 1204(2002), review
denied, 148 Wn.2d 1001,60 P.3d 1212(2003). Citing this rule, Gamache
contends the prosecutor improperly elicited Lubin's testimony that the Chief
Medical Examiner, Dr. Harruff, agreed with her opinion about McCune's time of
death. The gist of the elicited testimony was that Lubin's analysis was "in line"
with the practices and policies of her office. Although the final question included
an unfortunate reference to Dr. Harruff's "opinion", it did not indicate that he had
reviewed and approved Lubin's analysis in this case. And because an instruction
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to the jury to disregard the remark could have cured any potential prejudice,
Gamache waived the objection by failing to object.
DNA Evidence
Chain of Custody
Gamache attacks the DNA evidence linking Gamache to McCune and his
pill bottle in part by arguing the pill bottle evidence should not have been
admitted because the chain of custody was unsecured.
McCune stored his pill bottles in a filing cabinet. In the immediate
aftermath of finding McCune's body, his wife believed some of his pills were
missing, but she attributed their absence to her mistaken belief that McCune had
taken them as part of a plan to commit suicide. After the police left the home,
McCune's wife moved the pills to her sister's ,adjoining duplex so they would be
out of the way for the people cleaning the crime scene.
An autopsy revealed that McCune was murdered and that he did not have
any of the missing pills in his stomach. By this point, officers had learned of
Gamache's history with McCune and that Gamache was missing since the day of
the murder. Three days after the murder, officers went to McCune's home to
gather his pain medications. McCune's wife gave them a bag containing the pill
bottles she had collected. The officer labeled the bag and the pill bottles and
processed them for evidence. When the bottles were tested, one contained DNA
evidence implicating Gamache.
Gamache moved to suppress this evidence. He argued that the bottles
had not been protected and any evidence they contained was unreliable. The
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trial court denied the motion, ruling that the argument went to the weight of the
evidence and not its admissibility.
I am satisfied that the pill bottles as medication is packaged these days are readily identifiable pieces of evidence. It contains the name of the person for whom it's prescribed and they have other information concerning the medication itself, etcetera.
I am satisfied that this is sufficiently documented by the photos and the fact that these are items that clearly contain information as to what they are. There are photos in the residence showing bottles present of the medication prescribed to Mr. McCune. I am satisfied it goes to the weight of the evidence as the trier of fact might give weight to this particular evidence.
I am satisfied that there is sufficient chain of custody in terms of this readily identifiable item in the photos, that the arguments I think the Defense has they need to place to the jury either in cross or through witnesses. So the motion to suppress is denied.
"Before a physical object connected with the commission of a crime may
properly be admitted into evidence, it must be satisfactorily identified and shown
to be in substantially the same condition as when the crime was committed."
State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984), cert. denied, 471 U.S.
1094, 206 S. Ct. 2169, 85 L. Ed. 2d 526(1985). "Evidence that is unique and
readily identifiable may be identified by a witness who can state that the item is
what it purports to be." State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682
(2002), citing 5 KARL B. TEGLAND, WASHINGTON PRACTICE § 402.31 (1999).
"However, where evidence is not readily identifiable and is susceptible to
alteration by tampering or contamination, it is customarily identified by the
testimony of each custodian in the chain of custody from the time the evidence
was acquired." Roche, 114 Wn. App. at 436. "The trial court is necessarily
18 No. 76005-0-1/19
vested with a wide latitude of discretion in determining admissibility." Campbell,
103 Wn.2d at 21.
Gamache contends the evidence at issue was inadmissible because of
the high risk that it was contaminated. But as the State argues, the pill bottle
"could have been contaminated in hundreds of ways between the 2nd and the
5th, but there is scant chance it was contaminated in the only way relevant to this
case, i.e., with Gamache's DNA. Gamache was nowhere near the bottle
between August 2 and August 5." Gamache's argument that the prosecutor
committed misconduct by offering the evidence is not persuasive.
Characterization of the DNA Evidence
Gamache contends the prosecutor prejudicially overstated the strength of
the State's DNA evidence.
The Maryland Supreme Court confronted a similar question in Whack v.
State, 433 Md. 728, 732, 73 A.3d 186 (2013). In Whack, DNA evidence was
taken from the scene of a murder. The chance of the DNA coming from an
African-American individual other than the defendant was 1 in 172. Whack,433
Md. at 737. In closing argument, the prosecutor asserted that the DNA
established the defendant was at the scene, and claimed the 1 in 172 odds were
essentially no different than 1 in 212 trillion odds. Whack,433 Md. at 745-47.
The trial court denied a defense motion for a mistrial. Whack,433 Md. at 741.
The Supreme Court reversed and remanded for a new trial, holding that the
prosecutor's remarks "likely misled the jury to the prejudice of the accused."
Whack,433 Md. at 755.
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In two similar cases cited by Gamache, prosecutors were found to have
overstated the strength of DNA evidence. A one in three likelihood was ruled to
be too statistically insignificant to support the prosecutor's assertion that the
defendant's DNA was found in the victim's clothes in Duncan v. Commonwealth
of Kentucky, 322 S.W.3d 81, 90(Ky. 2010). When DNA evidence showed only
that a defendant could not be excluded, it was reversible error for the prosecutor
to claim the defendant's DNA was found at the scene. People v. Wright, 25
N.Y.3d 769, 776, 37 N.E.3d 1127 (2015).
Here, in opening statement, the prosecutor asserted that the DNA mixture
taken from the pill bottle matched Gamache and McCune:
And on one of those bottles, an empty bottle of Hydrocodone- Acetaminophen 10-325, on the lid, is a mixture of DNA. And that mixture of DNA matches a mixture of Wayne McCune and the defendant, Jason Gamache.
In closing, the prosecutor listed the DNA taken from the pill bottle as evidence
against Gamache:
You add all that up, his deception and lies, you add up the blood, the DNA on the shoes, the DNA on the mitt, DNA on the empty bottle, specific targeted robbery, the prior knowledge possessed by him. . ..
So when you put that all together, who killed Wayne McCune?
The prosecutor further stated that the pill bottle contained a "mixture of DNA,
Wayne McCune's and the Defendant's." In both the opening statement and
closing argument, the prosecutor referred to the blood on the rag found in
Gamache's vehicle as coming from McCune. The State's forensic expert
testified that the blood on the rag "matches the DNA profile of Wayne McCune,"
with a 1 in 260,000 probability of selecting an unrelated individual at random with
20 No. 76005-0-1/21
a matching profile. For the DNA on the pill bottle, he said it was 230 times more
likely than not to be from a mixture of McCune and Gamache than from McCune
and an individual selected at random.
We agree with Gamache that the discussion of DNA evidence must be
handled with care. "DNA is a powerful tool and its importance in the courtroom
cannot be overstated." Whack, 433 Md. at 732. A prosecutor's statements must
be considered within the larger context in which DNA evidence is treated by
jurors. Whack,433 Md. at 747. In this case, the prosecutor's description of the
DNA evidence was not as overstated as in the cases cited by Gamache, but it
did go beyond the expert testimony offered at trial because the prosecutor
omitted the statistical probability stated by the expert. To say that the DNA
evidence "matches" the defendant without addressing the statistical qualification
stated by the expert is potentially misleading. But Gamache did not object to the
alleged overstatement of the evidence. Because the prosecutor's alleged
misstatements were neither flagrant nor incurable, the issue is waived. Fisher,
165 Wn.2d at 747.
Ineffective Assistance of Counsel
Gamache alleges that his trial counsel provided ineffective assistance by
failing to object. A claim of ineffective assistance counsel requires a showing of
deficient performance and prejudice. State v. McFarland, 127 Wn.2d 322, 334-
35, 899 P.2d 1251 (1995). "Courts engage in a strong presumption counsel's
representation was effective." McFarland, 127 Wn.2d at 335.
21 No. 76005-0-1/22
Gamache claims defense counsel was ineffective by failing to object to
Officer Lind's testimony about what McCune said on grounds that it violated the
confrontation clause, by failing to object to the prosecutor's characterization of
DNA evidence, and by failing to object that the prosecutor improperly bolstered
Lubin's opinion testimony by eliciting her agreement that it was in line with the
practice and policies of her office. As discussed above, Gamache has not shown
that such objections would have been sustained. He fails to establish deficient
performance.
Additionally, Gamache contends counsel was deficient by failing to
request a limiting instruction when the court admitted evidence of his previous
attempt to take McCune's pills. Failure to request a limiting instruction may be a
legitimate tactical decision not to reemphasize damaging evidence. State v.
Yarbrough, 151 Wn. App. 66, 90, 210 P.3d 1029 (2009). That is the case here.
The record shows that defense counsel considered requesting a limiting
instruction before ultimately deciding not to offer one. We conclude counsel
made a tactical decision and did not render deficient performance.
Polling of the Jury
The first trial transcript submitted to this court showed that only 11 jurors
were polled as to whether the verdict was unanimous. Gamache argued in his
opening brief that the absence of the twelfth juror required reversal. The State
obtained and submitted a corrected transcript. Unable to determine which
transcript was reliable, we asked the trial court to settle the record as permitted
by RAP 9.5. The trial court reviewed the audio recording of the polling of the jury
22 No. 76005-0-1/23
and determined that the second transcript is correct. We accept that
determination. There was no error in the polling of the jury.
Cumulative Error
The combined effect of an accumulation of errors not individually
reversible may necessitate a new trial. State v. Coe, 101 Wn.2d 772, 789, 684
P.2d 668(1984). Gamache alleges but fails to establish the existence of multiple
errors.
Affirmed.
WE CONCUR: