* State of Washington v. Roy H. Murry

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
ROY H. MURRY,
Appellant.
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No. 35035-5-III
OPINION PUBLISHED
IN PART
KORSMO, J. — Roy Murry appeals from convictions for three counts of aggravated
first degree murder, one count of attempted first degree murder, and one count of first
degree arson. Due to an admitted defect in the charging document, we reverse the
attempted murder conviction without prejudice. Because the evidence of identity was
sufficient, and because the trial court did not abuse its considerable discretion in
resolving evidentiary challenges, we affirm the remaining convictions.
In the published portion of this opinion, we address Murry’s Frye1 challenge and
the inadequacy of the attempted murder charging language.
1 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
FILED
JUNE 4, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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FACTUAL BACKROUND
Although extensive evidence was admitted during the lengthy trial, the nature of
the appellate challenges counsels we leave more detailed discussion of the voluminous
facts to the appropriate argument. Accordingly, there need only be a generalized
discussion of the factual background of this case.
Murry, who lived in Lewiston, Idaho, was estranged from his wife, Amanda
Constable.2 She worked in Spokane as a nurse and lived with her mother and stepfather,
Lisa and Terry Canfield, at their Colbert-area residence. Also residing there was her
brother, John Constable. Amanda Constable was contemplating a divorce.
On the night of May 25, 2015, Memorial Day, Amanda Constable worked her
standard shift at a Spokane hospital and was expected to return home around 12:00 to
12:15 a.m. on May 26. A co-worker called in ill and Amanda Constable had to work
until 3:38 a.m. to cover. When she finally reached the family home, she discovered that
law enforcement had responded to a crime scene.
The Canfields and John Constable had been murdered. Each had been shot
multiple times and their bodies set on fire.3 Both the house and an outbuilding where
Terry Canfield’s body was found were burned. The subsequent investigation determined
that both gasoline and barbecue lighter fluid had been used as accelerants in multiple
2 Constable used the name Murry prior to the dissolution of the couple’s marriage.
3 In each instance, the cause of death was attributed to the gunshot wounds.
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areas of the house. Investigators did not identify the ignition sources, but several possible
fire starters were located.
Burglary and theft were ruled out as motives for the crime since the only item
missing from the scene was a .38 caliber revolver taken from Amanda’s bedroom; the
weapon had been a gift from Murry. $3,000 in cash was left undisturbed in the same
room and other valuables in the house were not taken. Suspicion almost immediately fell
on Murry.
Detectives twice interviewed him within four days of the killings. He claimed to
have been camping with friends along the Snake River, but declined to name his
companions. Extensive efforts ensued to verify the alibi, but no corroborating evidence
was located.
Prosecutors filed the noted charges and a lengthy jury trial ensued in the Spokane
County Superior Court. The identity of the killer was the primary contested issue at trial.
Due to the circumstantial nature of the case, numerous witnesses were called to testify
about Mr. Murry’s habits, his behavior leading up to the killings, and his motive. That
testimony is discussed later as necessary.
The jury found Mr. Murry guilty on the five noted charges and the court imposed
the mandatory sentence of life in prison on the three aggravated first degree murder
convictions. Mr. Murry timely appealed to this court. A panel heard oral argument of
the case.
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ANALYSIS
The published portion of this case addresses two issues. We first consider what is
the relevant scientific community for purposes of a Frye analysis. We then turn to the
adequacy of the attempted first degree murder charging language.
Frye Community
We conclude that the relevant scientific community is not the “criminal forensics
community,” but, is instead the community of experts who are familiar with the use of
the technique in question.4
This issue arises from the discovery of strangely shaped nanoparticles on some of
the shell casings recovered from the crime scene. William Schneck, a forensic scientist
from the Washington State Patrol Crime Laboratory, used a Scanning Electron
Microscope (SEM) to examine the casings. The SEM is the most powerful microscope at
the lab. He believed the particle might be AccuDure, a firearms lubricant, but his opinion
was inconclusive. He therefore sent the samples to MVA Scientific Consultants, a
private laboratory in Georgia. Richard Brown of MVA used a Transmission Electron
4 Mr. Murry’s related issues concerning the nanoparticle testimony largely derive
from his belief that the trial court erred in its analysis of the Frye community and will not
be separately addressed. To the extent that he also challenges the use of the Transmission
Electron Microscope under Frye, we consider the challenge foreclosed by the holding of
State v. Noltie, 116 Wn.2d 831, 850-51, 809 P.2d 190 (1991), that there is nothing novel
about using a magnifying glass to enhance vision.
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Microscope (TEM) and concluded that the samples were unique, synthetic silicon-based
nanoparticles that were consistent with the distinctive component of AccuDure.5
Washington uses the test of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923) to limit expert testimony to principles generally accepted in the scientific
community. State v. Copeland, 130 Wn.2d 244, 255, 922 P.2d 1304 (1996); State v.
Canaday, 90 Wn.2d 808, 812, 585 P.2d 1185 (1978). The reviewing court considers the
issue de novo and is expected to conduct a searching review that may include scientific
materials developed after trial. Copeland, 130 Wn.2d 255-56. If the scientific principle
satisfies Frye, the trial court applies ER 702 in determining whether to admit the
individual expert’s testimony. In re Det. of Pettis, 188 Wn. App. 198, 204-05, 352 P.3d
841 (2015).
A witness may qualify as an expert by knowledge, skill, experience, training, or
education. ER 702. After an expert’s qualifications are established, any deficiencies in
the expert’s knowledge goes to the evidentiary weight of the testimony. Keegan v. Grant
County Pub. Util. Dist. No. 2, 34 Wn. App. 274, 283, 661 P.2d 146 (1983). This court
reviews the trial court’s decision to admit expert witness testimony for abuse of
discretion. Pettis, 188 Wn. App. at 205. Discretion is abused if it is exercised on
5 Murry was the only known user of the lubricant and the evidence figured
prominently in establishing the identity of the killer.
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untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,
26, 482 P.2d 775 (1971).
A Frye hearing was conducted prior to trial. Mr. Murry alleged that the TEM was
not used in the “criminal forensics community” and that, accordingly, Frye precluded
consideration of TEM evidence in Washington. Mr. Murry had an expert listen to the
Frye hearing testimony, but, ultimately, he did not present any evidence or testimony at
the hearing. The State presented testimony from Brown, Schneck, and the developer of
AccuDure, Pavlo Rudenko, Ph.D. Dr. Rudenko used both a SEM and a TEM while
developing AccuDure and also hypothesized that he would use a TEM in order to protect
his patent should the need arise. He testified that differences between lubricants are
discernable under a microscope.
Mr. Brown, who had used the TEM for 35 years, testified to the history of TEM, a
microscope developed during the 1940s that became useful in forensic work in the 1980s
due to its ability to distinguish asbestos fibers. He explained that due to the high
resolution offered by TEM, it is the most common tool for examining nanoparticles. In
addition to forensics, TEM commonly is used by medical device manufacturers and also
by the Center for Disease Control to identify viruses.
Brown explained that TEM is the most powerful microscope for purposes of
magnification and resolution. The difference between SEM and TEM is the difference
between looking at the surface level of a particle (SEM) or at the atomic level (TEM).
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No. 35035-5-III
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Brown also explained that there was no debate in the scientific community concerning
use of TEM.
The trial court rejected the defense effort to classify the relevant scientific
community for Frye purposes as the criminal forensic community. Concluding that the
more general scientific community was appropriate, the court ruled that the testimony
about the AccuDure nanoparticles was admissible.
In this court, Mr. Murry reprises his challenge to the trial court’s determination of
the relevant scientific community for the Frye assessment. One enduring criticism of
Frye has been the court’s failure to define the scientific community by which to judge the
acceptance of novel scientific methods. DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC
EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY § 1.5, at 9 (2005-2006 ed.).
This problem becomes complicated because various overlapping scientific disciplines use
the same information and techniques. Id.6
Washington courts have not squarely addressed this issue. A commonly cited
answer to this challenge was provided by the Massachusetts Supreme Court: “the
requirement of the Frye rule of general acceptability is satisfied, in our opinion, if the
6 The Washington Supreme Court acknowledged: “When determining whether a
witness is an expert, courts should look beyond academic credentials. For example,
depending on the circumstance, a nonphysician might be qualified to testify in a medical
malpractice action. The line between chemistry, biology, and medicine is too indefinite to
admit of a practicable separation of topics and witnesses.” L.M. v. Hamilton, 193 Wn.2d
113, 135, 436 P.3d 803 (2019) (citation omitted) (internal quotation marks omitted).
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No. 35035-5-III
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principle is generally accepted by those who would be expected to be familiar with its
use.” Commonwealth v. Lykus, 367 Mass. 191, 203, 327 N.E.2d 671 (1975).
We believe the Lykus standard is consistent with the actual application of Frye by
the Washington Supreme Court. The mechanics of child birth injuries were at issue in a
recent medical malpractice case. L.M. v. Hamilton, 193 Wn.2d 113, 135, 436 P.3d 803
(2019). In addition to hearing from the obstetrics community, the court permitted the
testimony of a biomechanical engineer despite his lack of expertise with the
biomechanics of childbirth. Id. at 138. In the seminal criminal cases that paved the way
for use of DNA evidence at trial, the court looked at evidence from experts in multiple
disciplines. In the case involving statistical DNA analysis, the court heard from forensic
scientists, a university genetics professor, a university genetics researcher, and a
university statistics professor. State v. Kalakosky, 121 Wn.2d 525, 542, 852 P.2d 1064
(1993). In the case involving DNA typing, the court heard from a large number of
university researchers, geneticists, biochemists, and a statistician, in addition to forensic
scientists. State v. Cauthron, 120 Wn.2d 879, 884, 846 P.2d 502 (1993).
In none of these cases did the experts belong solely to the civil or criminal
forensics community. Mr. Murry has not identified a single Frye case where our courts
have excluded expert testimony from outside the forensic community. Limiting
testimony solely to those who use the science or equipment, instead of those also familiar
with the principle, unduly narrows the field to those who favor the science in question. It
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also discourages innovation by excluding the opinions of cutting-edge researchers who
may be demonstrating the utility of a new principle or a device.
The Massachusetts standard is consistent with the Washington practice and we
adopt it. Accordingly, we hold that scientists familiar with the use of the scientific
principle in question constitute the relevant scientific community for purposes of a Frye
analysis.
Here, the trial court heard from scientists familiar with the examination of
nanoparticles and properly based its ruling on their testimony. The trial court did not err
in determining that examination of nanoparticles by a Transmission Electron Microscope
was accepted in the scientific community familiar with the technology. Accordingly, its
ruling is affirmed.
Charging Document Sufficiency
Mr. Murry next argues that the attempted murder count was inadequately charged.
Precedent agrees with that argument and we reverse the attempted murder conviction
without prejudice to refiling.
A defendant has the constitutional right to be informed of the charges against him.
State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). This requires that the
charging document include each essential element of the charged offense; merely citing
to the appropriate statute is insufficient. Id. The rationale for this rule is that the
defendant must be informed of the allegations so he or she can properly prepare a
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No. 35035-5-III
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defense. State v. Simon, 120 Wn.2d 196, 198, 840 P.2d 172 (1992). Further, the
statutory manner or means of committing a crime is an element that the State must
include in the information. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988).
When a charging document fails to state a crime, the remedy is to dismiss the charge
without prejudice to the State’s refiling of a correct charge. Vangerpen, 125 Wn.2d at
792-93.
Mr. Murry argues that the charging document erroneously omitted the element of
premeditation. Despite the fact that premeditation actually is not an element7 of
attempted first degree murder, he is correct. Vangerpen is dispositive.
In that case, the original charging document8 alleged that the defendant, with the
intent to kill, attempted to do so.9 At the close of the prosecution’s case, the defense
moved to dismiss for failure to state a crime. The State agreed that the original document
charged only attempted second degree murder since the element of premeditation was
missing. Id. at 785. In its subsequent review, the Washington Supreme Court agreed that
7 State v. Boswell, 185 Wn. App. 321, 335-36, 340 P.3d 971 (2014) (elements are
specific intent to commit first degree murder and taking a substantial step toward
committing the crime); State v. Reed, 150 Wn. App. 761, 772-73, 208 P.3d 1274 (2009).
8 The trial court had granted the prosecution’s motion to amend the information
after the State had rested to add premeditation. Vangerpen, 125 Wn.2d at 785-86.
9 Although the charging document is not discussed in the Supreme Court’s version
of Vangerpen, it is set forth in the Court of Appeals opinion. See State v. Vangerpen, 71
Wn. App. 94, 97 n.1, 856 P.2d 1106 (1993).
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No. 35035-5-III
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the charging document was defective and expressly stated that premeditation was an
element of attempted first degree murder for charging purposes. Id. at 791.
It is possible to distinguish Vangerpen, as the prosecutor urges we do, on the basis
that the information filed in Vangerpen was improper due to failure to recite the statutory
elements of the crime, while the information in this case correctly recited those elements.
See State v. Boswell, 185 Wn. App. 321, 335-36, 340 P.3d 971 (2014) (elements are
specific intent to commit first degree murder and taking a substantial step toward
committing the crime). We decline to do so for two reasons.
First, the rulings of the Washington Supreme Court are binding on this court.
State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227 (1984). Even if possible to
distinguish the Vangerpen pronouncement, we have declined to do so in the past. E.g.,
State v. Mellgren, No. 35312-5-III (Wash. Ct. App. Dec. 11, 2018) (unpublished), http://
www.courts.wa.gov/opinions/pdf/353125_unp.pdf. Similarly, Division Two of this court
has recognized the Vangerpen pronouncement as requiring the element of premeditation
in a charging document. Boswell, 185 Wn. App. at 335-36 (declining to extend
Vangerpen to jury instructions).
Secondly, leaving premeditation out of an attempted first degree murder charging
document would create an additional problem. First degree murder can be committed in
three ways: (1) premeditated intentional murder, (2) extreme indifference, and (3) felony
murder. RCW 9A.32.030(1)(a)-(c). However, it is impossible to attempt murder by
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No. 35035-5-III
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extreme indifference or felony murder because neither offense requires proof of intent to
kill. State v. Dunbar, 117 Wn.2d 587, 817 P.2d 1360 (1991) (extreme indifference);
State v. Wanrow, 91 Wn.2d 301, 311, 588 P.2d 1320 (1978) (intent to kill not an element
of felony murder). Thus, a charging document that merely states that a defendant took a
substantial step toward committing first degree murder would fail to state a crime unless
premeditated murder was identified as the basis for the charge.
Since only attempted premeditated murder can constitute attempted first degree
murder, the charging document must, in some manner, identify the premeditation element
lest it commit the same error as in Vangerpen. Accordingly, although the charging
document used in this case adequately conveyed the elements of the offense, it still failed
to state a crime. For that reason, we reverse the conviction for attempted first degree
murder without prejudice and remand for further proceedings. Vangerpen, 125 Wn.2d at
792-93.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
UNPUBLISHED ISSUES
The appeal raises numerous other challenges including the sufficiency of the
evidence of identity on all charges as well as a contention that the killer did not take a
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No. 35035-5-III
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substantial step toward killing Amanda Constable. We group those two challenges
together before turning to look at his evidentiary arguments, another topic that we treat as
one. Next, we briefly consider Mr. Murry’s challenges to his mental competency and
legal financial obligations (LFOs). Finally, we briefly address Mr. Murry’s statement of
additional grounds (SAG).
Sufficiency of the Evidence
The overriding issue in this appeal is the sufficiency of the evidence to establish
Mr. Murry as the killer. He also argues that the evidence did not permit the jury to
determine that a substantial step was taken toward killing Amanda Constable. The
evidence permitted the jury to make those determinations.
These challenges are controlled by long-settled standards of review. Evidence is
sufficient to support a verdict if the jury has a factual basis for finding each element of
the offense proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d
628 (1980). The evidence is viewed in the light most favorable to the prosecution.
Green, 94 Wn.2d at 221. Appellate courts defer to the trier-of-fact on issues of
conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Circumstantial evidence is
as reliable as direct evidence. Rogers Potato Serv., LLC v. Countrywide Potato, LLC,
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No. 35035-5-III
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152 Wn.2d 387, 391, 97 P.3d 745 (2004); State v. Delmarter, 94 Wn.2d 634, 638, 618
P.2d 99 (1980).
The State’s proof of identity was entirely circumstantial. The facts are known to
the parties and will not be repeated here except in a summary form. Murry had a motive
to kill his estranged wife—both of them were contemplating divorce—and disliked her
family, who he blamed for turning his wife against him. The killings occurred at a time
when someone knowledgeable about her schedule would expect she should have just
returned home. Each victim received multiple fatal wounds—strong evidence of both
premeditation and murder committed by someone motivated to kill.
The physical evidence tied Murry to the scene. The most damaging evidence was
the AccuDure particles discovered on some of the shell casings. Dr. Rudenko testified
that there were only two vials of AccuDure in existence—one belonged to Murry (and
was discovered in his car) and the other vial Dr. Rudenko turned over to the WSP Crime
Laboratory. Rudenko did not own or use firearms, while Murry was a gun enthusiast
who owned numerous weapons. A .22 caliber gun missing from Murry’s collection had
been used to test AccuDure. The victims were killed by .22 caliber Remington rimfire
hollow-point bullets. The same ammunition was found in Murry’s car and his residence.
Traces of a fire starter, Trioxane, were discovered on a headlamp found inside Mr.
Murry’s car. He gave away his remaining Trioxane supplies shortly after the killings.
Investigators believed that Trioxane could have been used to set the fires. Flares were
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No. 35035-5-III
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identified as another possible ignition device. Flares also were recovered from Murry’s
car. The arson was committed by the same person who killed the victims.
In summary, the killer used AccuDure to lubricate his weapon. Mr. Murry was
one of two people to possess that unique synthetic lubricant, and the only one of the two
who had a motive to kill the family. He owned the same ammunition as the killer. The
gun Murry used to test the AccuDure fired the same ammunition and was missing from
his collection. Based on this evidence, the jury could conclude beyond a reasonable
doubt that Mr. Murry was the killer and the arsonist. The evidence supported the
verdicts.
In order to convict a person of attempted first degree murder, the evidence must
allow the jury to conclude that a defendant intended to commit first degree murder and
took a substantial step toward committing the offense. RCW 9A.28.020(1); RCW
9A.32.030(1)(a); In re Pers. Restraint of Borrero, 161 Wn.2d 532, 539-40, 167 P.3d
1106 (2007). “A ‘substantial step’ is conduct strongly corroborative of the actor’s
criminal purpose.” Borrero, 161 Wn.2d at 539.
A nonexhaustive list of factors suggesting that a substantial step had been
undertaken was derived from the Model Penal Code by State v. Workman, 90 Wn.2d 443,
584 P.2d 382 (1978). Those factors are:
(a) lying in wait, searching for or following the contemplated victim of
the crime;
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(b) enticing or seeking to entice the contemplated victim of the crime to
go to the place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the
crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of the
crime, which are specially designed for such unlawful use or which
can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in
the commission of the crime, at or near the place contemplated for
its commission, where such possession, collection or fabrication
serves no lawful purpose of the actor under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an
element of the crime.
Id. at 451 n.2.
At least three of these factors were present in this case. Factor (f) was established
by Mr. Murry’s appearance at the residence, armed, at a time Amanda Constable was
expected to be present. His subsequent use of the weapon against her family members
established his intent to kill. Even standing alone, factor (f) supported the existence of a
substantial step.
The State argues, correctly, that factor (a) also was present. After arriving at the
scene and killing the family, Mr. Murry appears to have waited more than an hour before
setting fire to the victims and the buildings, an act that announced his intent to leave the
scene and cover his tracks. There was no reason to delay his departure except for waiting
for Amanda Constable; his continued presence at the crime scene increased the likelihood
he would be apprehended there.
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Finally, factor (d) also appears to be present, although this factor overlaps to an
extent with the previous one. Murry was not an invited guest and appears to have
unlawfully entered the house and immediately killed the victims. If he was unaware at
that time that Amanda Constable had not returned, the jury could also find that he
initially entered the house with the intent to kill her and was forced by circumstances to
change his plans.
The evidence allowed the jury to determine that Roy Murry had taken a substantial
step toward killing Amanda Constable. Accordingly, the evidence was sufficient to
support that element of the attempted murder charge.
Evidentiary Objections
Mr. Murry raises a host of evidentiary arguments, most of which are wholly or
largely not properly before us. We preliminarily will discuss the standards of review
governing evidentiary claims as well as several of the error preservation doctrines that
Mr. Murry attempts to evade. We will then consider, often in very summary manner, the
individual challenges raised in this appeal.
With respect to preserved challenges, this court will review the trial court’s
evidentiary rulings for abuse of discretion. State v. Young, 160 Wn.2d 799, 805-06, 161
P.3d 967 (2007); State v. Guloy, 104 Wn.2d 412, 429-30, 705 P.2d 1182 (1985). As
noted earlier, discretion is abused when it is exercised on untenable grounds or for
untenable reasons. Junker, 79 Wn.2d at 26.
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With respect to unpreserved challenges, several doctrines are in play. A proper
objection must be made at trial to perceived errors in admitting or excluding evidence;
the failure to do so precludes raising the issue on appeal. Guloy, 104 Wn.2d at 421.
“‘[A] litigant cannot remain silent as to claimed error during trial and later, for the first
time, urge objections thereto on appeal.’” Id. (quoting Bellevue Sch. Dist. 405 v. Lee, 70
Wn.2d 947, 950, 425 P.2d 902 (1967)). The party must have challenged the admission of
evidence at trial on the same basis that it raises on appeal. Id. at 422. As explained there:
As to statement (d), counsel objected but on the basis that it was not proper
impeachment nor was it within the scope of redirect. A party may only
assign error in the appellate court on the specific ground of the evidentiary
objection made at trial. Since the specific objection made at trial is not the
basis the defendants are arguing before this court, they have lost their
opportunity for review.
(Citation omitted.)
The Guloy specificity requirement is a particular application of the general
principle of waiver—if a party forgoes a challenge, even one of constitutional
significance, the challenge is waived. State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286
(1995). Another species of waiver involves claims that result from a party’s own actions
at trial. One cannot cause an error and then attempt to benefit from the error on appeal.
This is known as the doctrine of invited error. E.g., State v. Studd, 137 Wn.2d 533, 545-
49, 973 P.2d 1049 (1999).
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The waiver, objection specificity, and invited error doctrines apply to multiple
arguments Mr. Murry raises. Other relevant doctrines that apply only to a single claim
will be addressed within those particular arguments. An additional argument of general
application that needs to be discussed is Mr. Murry’s peculiar take on the cumulative
error doctrine.
The cumulative error doctrine is a recognition that multiple errors, none of which
alone were significant enough to justify relief, can still result in a trial that was unfair due
to the cumulative harm resulting from the errors. Rookstool v. Eaton, 12 Wn. App. 2d
301, 311, 457 P.3d 1144 (2020). It is not a doctrine for avoiding error preservation
requirements. Id. Rather, it is an additional method of looking at the prejudice
engendered by multiple errors. Mr. Murry, however, treats cumulative error as allowing
appellate courts to consider the impact of unpreserved claims in conjunction with other
preserved or unpreserved arguments. It does not. Only if an argument is properly
presented to the trial court by timely objection or timely posttrial motion will we consider
the cumulative impact of multiple errors. Id.
Thus, we reject Mr. Murry’s cumulative error argument as it relates to unpreserved
claims. We now turn to the individual evidentiary objections he raises in this appeal.
Gun Collection. Mr. Murry argues that evidence that he owned a large number of
guns, habitually carried a handgun, and always handled ammunition with gloves and
wiped the ammunition down, constituted improper character evidence in violation of ER
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No. 35035-5-III
State v. Murry
20
404 and ER 405. We disagree with his characterization of the evidence. It is not a “bad
act” to own or carry guns, let alone to regularly clean ammunition. This evidence is more
properly classified as habit evidence governed by ER 406.
Mr. Murry did object to most of this testimony and has preserved his argument.10
Nonetheless, the court properly admitted the testimony because evidence about the gun
collection was highly relevant. A thorough investigation showed that Murry owned and
regularly carried weapons capable of firing the ammunition used in the killings. Several
weapons were tested and shown not to have been the murder weapon; other potential
murder weapons were missing from his collection, raising the possibility that one had
been used and discarded.
No fingerprints or DNA were recovered from the shell casings collected at the
scene. Mr. Murry’s habit of cleaning his ammunition and handling it with gloves
explained the absence of any trace evidence. Once again, this was highly relevant
evidence.
The habit evidence was relevant and not prejudicial. The trial court did not abuse
its discretion by admitting it.
“Prepper” Evidence. Testimony was elicited from several witnesses that Mr.
Murry was a “prepper”—a person preparing to survive the breakdown of society by
10 The defense did not challenge the statement by one witness that Murry was
“obsessed” with guns. That claim is waived.
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No. 35035-5-III
State v. Murry
21
stockpiling supplies and weapons. His belated challenge to this testimony on appeal
fails. He did not object at trial, thus waiving his argument. He also elicited the prepper
testimony from three of the four witnesses who testified on the subject and then used the
testimony in closing to explain why he possessed the weapons and other survival gear.
Thus, his challenge also is precluded by the invited error doctrine.
Similarly, he did not challenge trial testimony describing his survival equipment.
This component of his “prepper” challenge also is waived.
Conspiracy Theories. Evidence of Mr. Murry’s belief in conspiracies, including
his belief that Amanda Constable and her family were working with the Russian
government against him, was presented through several witnesses who repeated Mr.
Murry’s statements to them. This evidence was the subject of a pre-trial hearing to
identify which statements were being offered by the prosecution.
Mr. Murry withdrew objections to many of the statements, thus waiving any claim
of error as to them. For the remaining statements, the defense objected on the basis of
relevance. His appellate argument alleges that the evidence constituted improper
character evidence. However, the failure to challenge this testimony on those grounds in
the trial court not only prevented that court from assessing the argument, it runs afoul of
the Guloy objection specificity doctrine. For both reasons, this challenge is not
preserved.
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No. 35035-5-III
State v. Murry
22
Internet Search History and Song Posting. Mr. Murry next argues that evidence
of his Internet search history concerning Trioxane and other fire starters, and his posting
of four songs to his social media accounts while he was doing his searches, was unduly
prejudicial. At trial, he challenged this evidence on the basis of authenticity. Thus, his
current challenge is not preserved in this court. Guloy, 104 Wn.2d 412.
Since we do not consider this claim, we do not address the State’s arguments
distinguishing this case from State v. DeLeon, 185 Wn.2d 478, 374 P.3d 95 (2016). We
also note that Mr. Murry does not believe the evidence warrants reversing his
convictions. Br. of Appellant at 38-39. Instead, he argues this unpreserved claim as part
of the cumulative error argument we rejected previously. For this reason, too, we need
not consider the claim.
Internet Aliases. Mr. Murry argues that the court erred in permitting testimony
that he used aliases while on the Internet. He did not object to the testimony at trial. The
contention is waived. It also was one of the claims he hoped to resurrect under his
cumulative error theory. For both reasons, this issue is not before us.
Amanda Constable’s Testimony. Mr. Murry next presents multiple challenges to
the testimony of Amanda Constable. All fail for varying reasons, but we address the
claims separately for that same reason.
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No. 35035-5-III
State v. Murry
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Mr. Murry first argues that her entire testimony was precluded by the spousal
competency and spousal communication privileges found in RCW 5.60.060(1). This
contention fails for multiple reasons.
First, the statute is not applicable when one spouse is the victim of a crime
committed by the other spouse. In relevant part, the statute provides:
A spouse or domestic partner shall not be examined for or against his or her
spouse . . . without the consent of the spouse or domestic partner; nor can
either during marriage . . . or afterward, be without the consent of the other,
examined as to any communication made by one to the other during the
marriage . . . . But this exception shall not apply . . . to a criminal action or
proceeding for a crime committed by one against the other.
RCW 5.60.060(1).
This privilege is two-fold: a spousal competency privilege that prevents one
spouse from testifying against the other, and a communications privilege forbidding one
spouse from disclosing communications from the other spouse. State v. Thornton, 119
Wn.2d 578, 580, 835 P.2d 216 (1992). By its terms, the statute did not bar the testimony
of Amanda Constable. She was a victim and permitted to relate statements made during
the marriage that were relevant to this case.
Equally important, the defense expressly waived any application of the statute,
writing in response to the State’s pretrial memorandum: “The defense is not intending to
invoke the marital privilege with regard to Amanda Murry.” Clerk’s Papers at 362.
Further, much of Amanda Constable’s testimony was elicited by the defense in support of
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No. 35035-5-III
State v. Murry
24
its theory of the case. Thus, he also invited the error he now claims. For all three
reasons, the statutory argument is utterly without merit.
Mr. Murry also argues that certain statements related by Ms. Constable were
entered in violation of ER 402 and ER 403. Although we disagree with that assertion, we
do not address it because he did not object to the statements at trial and does not support
his contention with reasoned argument. RAP 10.3(a)(6); State v. Farmer, 116 Wn.2d
414, 432, 805 P.2d 200 (1991). For both reasons, we decline to consider this unpreserved
claim.
The one aspect of Mr. Murry’s challenge to Ms. Constable’s testimony that was
preserved for appeal was an objection to his former spouse testifying about his “shit list”
of people against whom he would seek revenge if the circumstances permitted. No
written list existed, but Mr. Murry would routinely put people on his mental list if they
wronged him or breached his trust. He not only would hold a grudge, but he would
repeatedly talk about how he would take revenge if he could. Testimony at trial indicated
that Mr. Murry believed “trust is everything” and that Amanda Constable was one of two
people in the world he trusted.
Evidence of “other bad acts” is permitted to establish specific purposes such as the
identity of an actor or the defendant’s intent or purpose in committing a crime. ER
404(b). Those purposes, in turn, must be of such significance to the current trial that the
evidence is highly probative and relevant to prove an “essential ingredient” of the current
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No. 35035-5-III
State v. Murry
25
crime. State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admitted
under ER 404(b) is considered substantive evidence rather than impeachment evidence.
State v. Laureano, 101 Wn.2d 745, 766, 682 P.2d 889 (1984), overruled in part by State
v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989). The decision to admit
evidence of other bad acts under ER 404(b) is a matter within the discretion of the trial
court. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003); Lough, 125 Wn.2d at
863.
Citing to ER 404, the trial court initially excluded the evidence on the basis that
the probative value did not outweigh the prejudice to Mr. Murry. The State did not
address the topic with Ms. Constable. During cross-examination, defense counsel elicited
testimony that Mr. Murry had not expressly threatened her and had never physically
harmed her. Prior to redirect examination, the prosecutor sought permission to address
the “list” in response to the cross-examination. The prosecutor believed the evidence
admissible to establish both premeditation and the reason Ms. Constable feared Murry.
The court concluded that the testimony was relevant both to establish
premeditation and to show how Mr. Murry would respond to a breach of trust.11 In the
court’s words, the testimony established Mr. Murry’s “belief system.” Report of
Proceedings at 2880. On redirect examination, Ms. Constable answered two questions
11 The trial court correctly ruled that evidence of Ms. Constable’s fear of Murry
was not relevant. See State v. Parr, 93 Wn.2d 95, 103, 606 P.2d 263 (1980).
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No. 35035-5-III
State v. Murry
26
from the prosecutor on the topic. She explained that he maintained the “list” of people
who had betrayed him and that was the reason why she did not want to bring up the topic
of divorce with him. On re-cross, defense counsel asked ten questions related to the list.
The trial court correctly concluded that Mr. Murry had “opened the door” to this
topic. This court recently discussed this topic at length in State v. Rushworth, __ Wn.
App. __, 458 P.3d 1192 (2020). There we noted that “the open door doctrine is a theory
of expanded relevance.” Id. at ¶ 17. When relevant evidence initially is excluded for
policy reasons, such as undue prejudice to one party, the protected party “can waive
protection from a forbidden topic by broaching the subject.” Id. That is what happened
here.
Despite the relevance of Mr. Murry’s penchant for planning revenge on those who
wronged him, the trial court excluded the evidence for the purpose of protecting Mr.
Murry. He, however, used the opportunity to suggest that Ms. Constable’s fear of him
was unreasonable and, implicitly, that he was of peaceful character.12 Having broached
the subject, he waived the protection of the court’s earlier ruling. Id.
The trial court had tenable grounds for admitting the testimony. Accordingly, it
did not abuse its discretion in permitting limited testimony about the “list” on redirect
examination.
12 It appears that the “list” testimony was relevant character evidence. See State v.
Brush, 32 Wn. App. 445, 648 P.2d 897 (1982). Since the trial court did not address this
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No. 35035-5-III
State v. Murry
27
Mr. Murry has not identified any evidentiary error among his preserved
arguments. Accordingly, we need not address the remainder of his cumulative error
claim.
Mental Competency
In light of testimony about Mr. Murry’s belief in aliens and being a shapeshifter,
as well as his paranoia, he now argues that the trial court erred by not ordering a
competency evaluation sua sponte. He has not established error.
A person is not competent to stand trial if he or she lacks “the capacity to
understand the nature of the proceedings against him or her or to assist in his or her own
defense.” RCW 10.77.010(15). Whether a hearing should have been ordered is reviewed
for abuse of discretion. In re Pers. Restraint of McCarthy, 193 Wn.2d 792, 802, 446 P.3d
167 (2019).
Simply having delusions is not itself sufficient reason to question a defendant’s
competency. Id. at 805. Instead, there must be a current reason to question the
defendant’s ability to understand the proceedings or assist in the defense. Id. at 806-07.
There was no indication of either concern in the trial record of this case. Mr. Murry’s
precharging symptomology does not appear to have affected his competency at trial.
issue, we do not do so either.
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No. 35035-5-III
State v. Murry
28
There is no support in the record for believing Mr. Murry’s competency was
impaired during trial. Accordingly, the trial court did not abuse its discretion by failing
to act sua sponte.
Legal Financial Obligations
By supplemental brief, Mr. Murry asked that the $200 criminal filing fee be struck
from the judgment and sentence. The trial court is directed to strike the fee in accordance
with State v. Ramirez, 191 Wn.2d 732, 735, 426 P.3d 714 (2018).
Statement of Additional Grounds
Mr. Murry raises numerous claims in his SAG. None have merit. We will
address, in summary form, some of those claims.
RAP 10.10(a) authorizes a pro se statement of grounds that “the defendant
believes have not been adequately addressed by the brief filed by the defendant’s
counsel.” In the event that issues of possible merit have been identified, the court may
require both counsel to address the SAG issues. RAP 10.10(f). Only documents in the
record may be considered when assessing a SAG argument. RAP 10.10(c).
The latter requirement also is an obligation of any brief filed in the appellate
courts. An appellate court need not consider an issue raised for the first time on appeal
when the record does not contain sufficient facts to resolve the claim. State v.
McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995). Typically, the remedy in such
situations is for the defendant to bring a personal restraint petition in which he can
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No. 35035-5-III
State v. Murry
29
present his evidence. E.g., State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159
(1991).
With those general observations, it is time to turn to Mr. Murry’s arguments. His
first and fifth arguments, and inferentially in his second argument, allege that the State
failed to preserve, find, or present evidence in his favor. He misunderstands the
government’s obligation.
Very well established case law governs our review. The State has a duty to
preserve evidence that is both material and exculpatory. State v. Donahue, 105 Wn. App.
67, 77-78, 18 P.3d 608 (2001). When dealing with evidence that is not exculpatory, but
only potentially useful to the defense, Washington courts apply the federal analysis found in
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). See State v.
Straka, 116 Wn.2d 859, 810 P.2d 888 (1991). Under Youngblood, a defendant must
establish that evidence was destroyed (or not preserved) because of bad faith on the part of
the government. If bad faith is not established, the due process inquiry is at an end. 102 L.
Ed. 2d at 289. In addition, there is no police duty to seek out or test evidence. Donahue,
105 Wn. App. at 77-78. Mr. Murry’s arguments all fail under these standards. He has not
pointed to any exculpatory evidence that was not preserved, nor has he shown that any
potentially useful evidence was destroyed in bad faith.
The third and fourth SAG issues allege that witnesses testified differently than
expected and that trace evidence may have been contaminated. Neither of these issues was
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No. 35035-5-III
State v. Murry
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raised at trial and, therefore, neither is preserved for our review. Also, there is no factual
support in the record for the third argument. His eighth argument fails for both of these
reasons.
The sixth argument alleges that counsel performed ineffectively in nine different
instances. This argument also is assessed under well-settled standards of review. An
attorney must perform to the standards of the profession; the failure to live up to those
standards will require a new trial when the client has been prejudiced by counsel’s
failure. McFarland, 127 Wn.2d at 334-35. In evaluating ineffectiveness claims, courts
must be highly deferential to counsel’s decisions. A strategic or tactical decision is not a
basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Thus, to prevail on a claim of ineffective assistance, the
defendant must show both that his counsel erred and that the error was so significant, in
light of the entire trial record, that it deprived him of a fair trial. Id. at 690-92. When a
claim can be disposed of on one ground, a reviewing court need not consider both
Strickland prongs. Id. at 697.
The first, third, fifth, and eighth rationales for asserting ineffective assistance all
refer to alleged facts outside the trial record. Accordingly, there is no basis for adjudging
these claims. The second, third, fourth, fifth, sixth, seventh, and ninth sub-arguments all
fault counsel for not cross-examining or calling witnesses, or for failure to object to
arguments or exhibits offered by the State. The decisions whether to cross-examine a
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No. 35035-5-III
State v. Murry
31
witness, call a witness, and to object to evidence all involve trial tactics. E.g., In re Pers.
Restraint of Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004) (cross-examination); State v.
Robinson, 79 Wn. App. 386, 392, 902 P.2d 652 (1995) (call witness); State v. Madison,
53 Wn. App. 754, 763, 770 P.2d 662 (1989) (object). A reviewing court presumes that a
“failure to object was the product of legitimate trial strategy or tactics, and the onus is on
the defendant to rebut this presumption.” State v. Johnston, 143 Wn. App. 1, 20, 177
P.3d 1127 (2007) (citing cases). Accordingly, none of these arguments overcome the
Strickland presumption of effectiveness. The ineffective assistance claim is without
merit.
The final SAG argument is a contention that the prosecutor engaged in misconduct
during closing argument by misrepresenting some of the evidence. His first two sub-
contentions fail because they were reasonable inferences from the evidence. The final
claim is that the State’s closing argument was speculative and inconsistent. It was not.
The prosecutor noted that the evidence did not allow the State to determine the order in
which the victims died, but he consistently argued that Mr. Canfield died first. Again,
this was a reasonable inference from the evidence. It also was largely irrelevant to the
jury’s determination of who the killer was. Even if there had been some minor error in
making this argument, it was of absolutely no consequence to the outcome of the trial.
Mr. Murry has not established misconduct.
The SAG is without merit.
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No. 35035-5-III
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Reversed in part and remanded for further proceedings consistent with this
opinion.
_________________________________
Korsmo, J.
WE CONCUR:
_________________________________
Siddoway, J.
_________________________________
Pennell, C.J.
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