SPEARMAN, J.
A trial court must grant a motion for post conviction DNA (deoxyribonucleic acid) testing if favorable test results would establish the individual's innocence on a more probable than not basis. Brian Dublin challenges the denial of his motion for post conviction DNA testing. But because favorable test results would not establish a probability that Dublin was innocent, the trial court did not err in denying the motion. We also reject Dublin's assertion that the trial court erred in denying his motion to disqualify the judge. Dublin fails to show that the judge was biased or gave the appearance of bias, so that a reasonable observer would conclude that Dublin did not receive an impartial hearing. We affirm.
A jury convicted Dublin of three counts of first degree burglary, two counts of first degree rape, and one count of attempted first degree rape. The convictions were based on three separate incidents in the same community. In each case, an intruder entered a young woman's bedroom at night, threatened her, and raped or attempted to rape her.
Dublin's motion for post-conviction DNA testing concerns his conviction for raping A.B. and burglarizing her home. At trial, A.B. testified that she was asleep in her room one night in 2003 when she woke to see an intruder holding what appeared to be a knife. The intruder ordered A.B. to take off her clothes. He put his mouth on her neck, breasts, and vaginal area. The rapist pulled his pants down far enough to expose his penis, rubbed his penis in A.B.'s vaginal and anal area, and raped her vaginally. The rapist told A.B. he would kill her if she reported the incident and left.
A.B. reported the attack and submitted to a sexual assault examination. Samples were taken from her neck, breasts, anus, and vagina. Analysis of these samples revealed DNA belonging to a single unidentified male. A nurse who examined A.B. stated that, according to her notes, A.B. reported that she had been sexually inactive for about two months prior to the attack.
Detective Patricia Maley testified that she was assigned to gather evidence from A.B.'s room. Maley and A.B. both testified that the room was very messy and contained "immense amounts" of clutter. Verbatim Report of Proceedings (VRP) at 578. Maley did not personally speak to A.B., but gathered items from the room based on information from other detectives.
Maley stated that she took the sheets and pillow cases from A.B.'s bed because the incident happened on the bed. She took a stuffed panda bear into evidence because she "believe[d]" Detective Gordon told her that A.B. said the perpetrator's head was on the bear.
Maley explained that the information she got "was from detective — excuse me — Deputy Patino who got it from the shift before him, and I got it from Detective Gordon who got it from somebody else. Eventually he said it was believed that the suspect may have left behind these items."
Neither Dublin nor the State asked Gordon about the items taken from A.B.'s room. No further information concerning the underwear, bedding, scissors, or stuffed animal was elicited at trial.
Testimony at trial established that two other young women were assaulted by an intruder who entered their bedrooms at night. Twelve year old G.G. managed to escape to her parent's bedroom after the intruder grabbed her genital area. But sixteen year old E.P. was the victim of a completed rape. E.P. was acquainted with Dublin and named him as a possible suspect.
Analysis of a DNA sample obtained from Dublin determined with a high degree of certainty that he was the source of the DNA recovered in the sexual assault examinations of A.B. and E.P. Detectives also found a notebook containing a list of names in Dublin's home. A.B.'s full name was at the top of the list, E.P.'s full name was at the bottom of the list, and G.G.'s initials were in the middle of the list.
Dublin's theory at trial was that the sexual encounters with A.B. and E.P. were consensual. He testified that he had consensual sex with A.B. in his truck sometime in 2003. Dublin denied any encounter with G.G. The jury rejected these theories and convicted Dublin as charged as to A.B., G.G., and E.P.
In October 2014, Dublin, acting pro se, filed a motion seeking post-conviction DNA testing of the underwear, bedding, stuffed animal, and scissors from A.B.'s bedroom. Judge Laura Middaugh, who had presided over the trial, denied Dublin's motion. Dublin appealed.
In March 2016, after our opinion in
Before Judge Middaugh considered the motion on remand, Dublin moved to disqualify the judge under the appearance of fairness doctrine. He asserted that the judge had made up her mind to deny his motion and was "unwilling or unable to apply the legal standard requiring a presumption that the evidence will be favorable to Mr. Dublin." CP at 137. The judge declined to recuse herself. On remand, the trial court also denied Dublin's motion for post conviction DNA testing. Dublin appeals the denial of both motions.
We first address Dublin's challenge to the denial of his motion for post-conviction DNA testing. We review a trial court's decision on a motion for post-conviction DNA testing for abuse of discretion.
A convicted person currently serving a prison sentence may file a motion requesting DNA testing with the court that entered the judgment of conviction. RCW 10.73.170(1). A successful motion must show that "the DNA evidence would demonstrate innocence on a more probable than not basis." RCW 10.73.170(3). In determining whether the motion meets this test, the trial court must "presume that the DNA results would be favorable" to the convicted person.
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After Riofta was convicted, he moved for post conviction DNA testing of the hat.
In this case, Dublin moved for post-conviction DNA testing of the underwear, bedding, stuffed animal, and scissors taken from A.B.'s room. The trial court denied the motion, ruling that neither the absence of Dublin's DNA nor the presence of another person's DNA on the untested items would establish a probability that Dublin was innocent. The order notes that "had there been evidence that the men's underwear removed from the scene had been worn by the rapist the Court's response as to this item would have been different. However, the evidence at trial did not support this assertion." CP at 610.
Dublin contends that the trial court erred. He first challenges the trial court's conclusion as to the underwear. Dublin asserts that the record establishes that the rapist wore the underwear. Because underwear is unlikely to be shared, Dublin asserts that it is likely to contain only the rapist's DNA. Dublin argues that the absence of his DNA on the underwear and the presence of another man's DNA would support an inference that Dublin was innocent.
We disagree. The record in this case does not establish that the rapist wore the underwear. Detectives took the underwear into evidence because they believed it may have been worn by the perpetrator. But this supposition was not confirmed. A.B. stated that the rapist pulled his pants down far enough to expose his penis, indicating that he did not remove his underwear. The record provides no support for Dublin's theory that the rapist removed his underwear and left it in A.B.'s room.
Dublin next argues that the rapist may have left DNA on the stuffed animal and the scissors. This argument fails for the same reason. The record neither links these items to the rapist nor excludes the possibility that other people left DNA on the items.
Next, Dublin contends that the rapist touched the bedding and may have left semen on it. He argues that A.B. was sexually inactive for about two months before the incident and the record provides no evidence that a man other than the rapist was in her bed. Dublin asserts that, if semen from another male were recovered from the bedding, it would corroborate his claim that he never entered A.B.'s bedroom but had consensual sex with her in his truck.
We reject this argument. In evaluating a motion for post conviction DNA testing, we assume exculpatory test results and consider those results along with all the evidence from trial.
Dublin next asserts that Judge Middaugh violated the appearance of fairness doctrine by declining to recuse herself. We review a trial court's decision on recusal for abuse of discretion.
Under the appearance of fairness doctrine, a judge must not be biased or give the appearance of bias.
Dublin contends that Judge Middaugh abused her discretion in declining to disqualify herself. He argues that the November 2014 and March 2016 orders denying his motion for post-conviction DNA testing expressed the judge's firm conclusion that Dublin's motion should not be granted.
We disagree. Judge Middaugh erred in issuing the November 2014 order because the order did not reflect application of the correct legal standard.
The Supreme Court accepted review of the disqualification issue.
In this case, unlike in
Affirmed.
LEACH and APPELWICK, JJ., concurs.