STATE v. PARKER, 44463-8-I (Wash.App. 12-23-2002)

No. 44463-8-I.The Court of Appeals of Washington, Division One.
Filed: December 23, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 96-1-07511-2, Hon. Sharon Armstrong, March 16, 1999, Judgment or order under review.

Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Sharon J. Blackford, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Donald J. Raz, Deputy Prosecuting Atty., King Co Courthouse Rmw554, 516-3rd Ave, Seattle, WA 98104-2312.

SCHINDLER, J.

Robert Parker appeals his conviction on two counts of aggravated murder in the first degree. Parker argues the trial court erred in excluding the testimony of a clinical neuropsychologist who would have testified about his poor performance on cognitive and memory tests. He also challenges the admission of his custodial statements; the State’s calling his ex-girlfriend to testify then impeaching her with prior inconsistent statements, and the admission of DNA evidence. We conclude that the trial court did not abuse its discretion in excluding the expert testimony because the testimony was not relevant and would not have been helpful to the jury. Nor did the court err in concluding that Parker validly waived his Miranda rights. Although a violation of CrR 3.1(c)(2) occurred because Parker was not provided with access to a lawyer at the earliest opportunity after he requested a lawyer, the error in admitting his statements was harmless. Parker waived his objection to the State’s impeachment of his ex-girlfriend, and the trial court did not abuse its discretion in admitting the results of DNA analysis. We affirm.

FACTS
In the spring of 1995, approximately one month apart, two women who lived in the same cul-de-sac were sexually assaulted and murdered, and their apartments were set on fire.

The first murder occurred on February 24, 1995. Just before midnight, the Shoreline Fire Department responded to a report of a fire in a ground floor apartment. When the firefighters extinguished the fire, they discovered the body of Renee Powell, a 43-year-old single woman. Powell was lying face down and most of her clothes had been torn off. Her legs were spread apart and combustible materials placed between her legs. Her left arm had been tied with a cord cut from a lamp, and she was gagged with a piece of lingerie. It appeared Powell had been doing laundry at the time of her death. She had been stabbed in the abdomen and back. An ice pick was found near her leg and a knife was found on a table in the hallway. The detectives were able to determine that a VCR and several bottles of wine were missing from Powell’s apartment.

The medical examiner concluded Renee Powell died before the fires were set.

The medical examiner determined she died from loss of blood from a stab wound to her abdomen and she had been strangled. Powell had also been sexually assaulted. Vaginal swabs taken from Powell were sent to Forensic Science Associates (FSA) in California for DNA (deoxyribonucleic acid) testing.

A month later, on March 26, 1995, firefighters responded to another fire in a ground floor apartment located 50 feet away and on the same cul-de-sac as Powell’s apartment. After they put out the fire, firefighters discovered the body of Barbara Walsh, a single, 53-year-old. Walsh was found face down with her legs apart. Her clothes had been torn off and her left wrist had been tied with a lamp cord. Clothing was packed around her body and between her legs. She had been gagged with pairs of tights and stabbed multiple times in her abdomen. Seven different fires had been set in Walsh’s apartment. One had been set in the clothing packed around her body.[1] Another fire on the living room couch contained a kitchen knife. Condom wrappers were found in the bathroom. Two used towels were also found on the bathroom counter.

The medical examiner concluded Barbara Walsh died before the fires were set. The medical examiner determined she died from strangulation and asphyxiation. Vaginal bruising indicated a sexual assault. The detectives were able to determine that a television, a VCR, a C.D. player, and stereo speakers were missing from Walsh’s apartment.

The Washington State Crime Laboratory located a pubic hair on one of the used towels found in Barbara Walsh’s bathroom. Because the pubic hair appeared to have sufficient DNA material, it was forwarded to FSA for testing.

In November 1995, FSA completed its DNA testing of the sperm extracted from the vaginal swabs taken from Renee Powell and identified the DNA profile. FSA was also able to do DNA testing on the pubic hair root and identified the DNA profile for the person who left the pubic hair. The DNA profiles for the sperm from Powell’s vaginal swabs and the pubic hair from Walsh’s towel were the same.

At the time of the murders, Robert Parker was living with his girlfriend, Princess Gray, and she was pregnant with their child. Princess Gray lived in a duplex located on the same cul-de-sac as Renee Powell and Barbara Walsh. The duplex was approximately 130 feet from Powell’s apartment and 150 feet from Walsh’s apartment. A King County detective talked to Robert Parker immediately following Walsh’s murder when the police contacted all the residents in the immediate vicinity to gather information about the crime.[2] Princess Gray and Robert Parker no longer lived together after April 1995. Gray moved out of the duplex in June 1995. Her landlord agreed to store her property. Before her possessions were moved into storage, Gray made a videotape of the items to be stored. Subsequently, Parker began living with a new girlfriend, Cheron Bell. Princess Gray was angry because Parker had left her and was living with Bell. She threatened Parker and Bell. In August 1996, while at the unemployment office, Gray saw Parker and Bell and attacked them. Gray was charged with assault.[3] While the assault charges were pending, Gray told her therapist, Kristi Crosky, that Parker was involved in the murders that happened when they lived together at her duplex. She told Crosky that Parker should quit cheating on her or she would disclose that he had killed some people. Crosky reported Princess Gray’s statements to the police.

The police met with Princess Gray on November 1, 1996 at the King County jail where she was serving her sentence for the assault on Parker and Bell. Gray agreed to talk to the detectives and have her interview tape recorded. Gray told the detectives Parker lived with her at the time of the Powell and Walsh murders. Gray described the property that Parker brought into her apartment on these two separate nights.

Because the detectives agreed to arrange for Gray’s release and not to prosecute her for possession of stolen property or for an additional assault charge, Gray agreed to be interviewed again and to turn over to the detectives items Parker had brought into her duplex on the nights of the Powell and Walsh murders.[4] The items Gray showed the detectives included a gray London Fog raincoat, a box of silverware, wicker baskets, ceramic dishes, a floor lamp, a glass prism, two wire sculptures of bicycles, Raggedy Ann and Andy figurines, a hand-painted oriental vase, and stereo speakers. After recovering this property from Gray, the detectives showed these items to the friends and family of Powell and Walsh. The London Fog raincoat was identified as Powell’s. The other items were identified as Walsh’s. On November 5, 1996, Parker was arrested as he arrived at work and taken into custody. He was read his Miranda[5] rights and agreed to talk to the detectives. Parker told the detectives he lived with Princess Gray from November 1994 through April 1995 and he recognized the victims’ property because it had been in Princess Gray’s duplex when he first moved in with her. He denied any involvement with the murders and insisted he had not brought these items into Gray’s apartment. A sample of Parker’s blood was taken and forwarded to FSA. That same day, when a search warrant was executed, the police recovered from Parker’s apartment a large black duffel bag with purple handles. Renee Powell’s sister-in-law identified this bag as the one she gave to Powell for Christmas. FSA completed the DNA testing and analysis of Parker’s DNA sample on November 6, 1996. According to FSA, Parker’s blood sample had the same DNA profile as the sperm extracted from the vaginal swabs taken from Powell and the pubic hair found on Walsh’s towel. On November 8, 1996 the State filed charges of two counts of first degree aggravated murder against Parker. After the charges were filed, Princess Gray called Parker’s mother, Blanchie Parker, and her own mother, Dolores Gray and recanted the statements she had made to the detectives. Gray said she had actually found all of the property that she identified and gave to the detectives near her garbage cans after the second murder and she brought these items into the duplex. Gary later told the defense attorneys she lied to the detectives because she was angry with Parker. Princess Gray consistently disavowed her previous statement to the detectives and adhered to this account.

In January, 1997 Parker told Michael Chadwick, a fellow inmate and previous acquaintance, that he was in jail because he had committed a couple of homicides. Chadwick testified that Parker asked him for help in providing an alibi. According to Chadwick, Parker wanted him to say that they were together around the end of February 1995. In exchange for Chadwick’s agreement to testify on the State’s behalf, the prosecutor agreed to make a favorable sentencing recommendation for his pending case. Parker denied having this conversation with Chadwick. On January 8, 1997 the State filed a notice of special proceeding to determine whether the death penalty should be imposed. The case was pre-assigned for trial and over the next two years over 50 pretrial hearings were held in preparation for trial. The trial commenced on November 30, 1998 and concluded on February 17, 1999. The jury found Parker guilty of two counts of aggravated first degree murder. The jury did not find that the death penalty should be imposed. Parker was sentenced to life in prison without the possibility of parole.

EXCLUSION OF EXPERT TESTIMONY
Under RCW 10.95.030(2) the death penalty cannot be imposed if the defendant was `mentally retarded at the time the crime was committed.’ The statute requires the defense to establish mental retardation by a preponderance of the evidence and the court must find it exists. Dr. Muriel Lezak, a neuropsychologist, was one of two experts retained by the defense to examine Parker. Both experts ultimately concluded that Parker was not mentally retarded, and the defense conceded prior to trial that Parker did not meet the statutory definition of mental retardation. Dr. Lezak examined Parker on October 14, 1997. She prepared a report that summarized her examination. Dr. Lezak interviewed Parker, administered tests, and reviewed the information and certification for determination of probable cause filed in the case.[6] Her report contains the results of various subtests from a standard intelligence test she used to measure Parker’s cognitive function, including his verbal ability, visual perception, and memory. Dr. Lezak concludes Parker had `generally low average to borderline mental ability’ with some exceptions in areas where his performance was `defective’.[7] Under the section entitled `emotional status’ the report states that Parker’s responses to the Rorschach ink blots did not suggest a violent disposition:

No sexual associations were given, nor any associations suggesting violent or destructive activity [sic].[8]

This report contains no conclusion regarding Parker’s mental state related to the charged crimes or his mental ability to commit the charged crimes. Pretrial, the defense endorsed Dr. Lezak as an expert witness who would testify about Parker’s cognitive ability to commit the crimes. The defense consistently maintained that Parker was not claiming or pursuing a diminished capacity or insanity defense and that Dr. Lezak’s testimony was not being offered for this purpose.[9] The State was given the opportunity to interview Dr. Lezak about the report and her opinions and conclusions. During the State’s interview on April 21, 1998, in response to questions about whether it was possible to draw any conclusions regarding a person’s ability to commit a violent crime based on the results of the intelligence tests, Dr. Lezak said that she believed it is possible for someone like Parker who performs in the borderline to defective range to form the intent to commit a violent crime. But, with respect to what she knew about Parker and the details of these particular crimes, the two did not `mesh’.[10] He doesn’t . . . seem like the kind of person, or have the kind . . . of capacity for mental elaboration and mental imagery and complexity that performing these two . . . murders in such a similar manner . . . would suggest.[11]

Dr. Lezak also questioned Parker’s ability to `form an elaborate intent’.[12] She did not believe Parker had the capacity for mental elaboration, imagery, or complexity necessary to commit the ritualistic aspects of the two murders. This conclusion was based on Parker’s responses to the Rorschach ink blot test, the cognitive tests, her interview questions, and what she knew of him from the interview. Dr. Lezak further concluded that Parker could not have committed the second murder because he did not have the ability to recall details over time. She questioned Parker’s ability to remember the details of the first murder when performing the second murder because `he doesn’t pull stuff out of his head easily.’[13] She also explained that Parker’s responses to the ink blot test did not indicate `sexual pathology,’ `aggression,’ or `anger’ which she had seen in some people who had committed murder and `which is generally not seen in people who don’t commit murders.’[14]
In the State’s interview, Dr. Lezak said she doubted Parker committed the murders because he doesn’t `come across’ as an angry person.[15] She was unable to state a clear and specific basis for her conclusion that someone who performed at Parker’s level on cognitive tests would be incapable of committing these two murders. While she admitted the Rorschach test is not an accepted method of evaluating the likelihood that someone committed a crime and there was no research or other evidence to support her conclusions, Dr. Lezak stated it is accepted methodology to consider the Rorschach, the other test results and her interview with Parker to arrive at a clinical judgment and express her opinions and conclusions about his behavior and his ability to commit the crimes.

After this interview, the State filed a motion to exclude Dr. Lezak’s testimony, on the grounds that her testimony was essentially offered as a diminished capacity defense, the testimony did not meet the requirements for such a defense, and there was no causal connection between Dr. Lezak’s opinion about Parker’s intelligence and his ability to commit the crimes.

The State also argued that Dr. Lezak’s testimony was inadmissible because it did not meet the standard for expert testimony required under ER 702 or the Frye[16] standard.

In response Parker argued that the testimony was not offered in support of a diminished capacity defense, but rather, the testimony was relevant to the issue of identity. That is, because of Parker’s limited cognitive abilities, he could not have committed the two elaborate and complex murders. Since the State’s theory was that the crimes were committed by someone with a common scheme or plan, the defense believed it would be entitled to rebut those assertions with evidence of Parker’s limited mental abilities.

The trial court agreed with the defense that Dr. Lezak’s opinions were perhaps related to Parker’s ability or mental capacity to formulate a common plan or scheme, and the issue was really one of identity rather than diminished capacity. The court phrased the issue as whether this is `an individual who has the capability of acting in the way that whoever committed these crimes acted.’[17] The court concluded however, that the offer of proof for Dr. Lezak’s testimony from the April 21, 1998 transcript of the State’s interview and Dr. Lezak’s October 14, 1997 neuropsychology interview and report did not provide a sufficient evidentiary foundation.

The court requested additional information from Dr. Lezak to meet the evidentiary requirements including her relevant professional experience, a description of the tests she administered, and a detailed explanation of how those tests indicate Parker is incapable of performing the acts committed by the murderer. The court said the declaration should also demonstrate that this type of information is generally relied on by neuropsychologists to predict behavior.

The court concluded that, with this additional information, the evidentiary foundation under ER 702 for Dr. Lezak’s opinions and conclusions could be established. The court, however, expressed skepticism about whether Dr. Lezak could provide the necessary evidentiary foundation under ER 702 for the opinions and conclusions she expressed based on the Rorschach ink blot test.

On August 1, 1998, the defense submitted a three-page certification letter from Dr. Lezak. In the certification, Dr. Lezak restates the results of the cognitive tests and reiterates her opinion that Parker’s cognitive functioning in many areas was borderline to defective, especially when given tasks that are conceptually complex. Dr. Lezak admits, however, that she was unable to reach any conclusion about whether Parker committed the murders. I am unable to evaluate the likelihood or not that someone at Mr. Parker’s level of cognitive functioning committed the crimes of which he is accused. I can say that nowhere in either his test responses nor his history (as provided to me) were there indications of sexual perversion, sexual obsession, aggressive and/or destructive tendencies or malevolence toward women all characteristics implied in the nature of the crimes for which Mr. Parker has been accused.[18]

Dr. Lezak did not provide a detailed description about the tests given to Parker nor did she explain whether other neuropsychologists use the same type of tests to reach the opinions and conclusions she previously expressed. Dr. Lezak’s earlier opinion that Parker lacked the mental ability to recall details of the first murder and repeat them in the second is not mentioned.

Because Dr. Lezak could not express an expert opinion about whether Parker had the capacity to commit the murders, the trial court concluded her testimony was not relevant and was speculative and, therefore, did not meet the requirements of ER 401, 402, or 702. The court’s findings of fact and conclusions of law specifically rely on ER 401, 402, and 702 as the basis for the court’s exclusion of Dr. Lezak’s testimony and reject the analysis of State v. Edmon, 28 Wn. App. 98, 621 P.2d 1310 (1981) as inapplicable.[19]

Parker contends he was denied his right to present a defense when the court refused to permit Dr. Lezak to testify that he was incapable of committing the murders. Both the Sixth Amendment and art. I, § 22 (amend. 10) of the Washington State Constitution guarantee a criminal defendant the right to present witnesses to establish a defense. State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). However, there is no constitutional right to present irrelevant evidence. Maupin, 128 Wn.2d at 925; State v. Ellis, 136 Wn.2d 498, 527, 963 P.2d 843
(1998). Expert testimony is admissible when the witness qualifies as an expert, the opinion is based on an explanatory theory generally recognized in the scientific community, and the testimony would be helpful to the trier of fact. State v. Greene, 139 Wn.2d 64, 73-74, 984 P.2d 1024 (1999), cert. denied, 529 U.S. 1090, 120 S.Ct. 1726, 146 L.Ed.2d 647 (2000). ER 702 permits testimony by a qualified expert where `scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.’ This court reviews the trial court’s admission or rejection of expert testimony for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Whether evidence is admissible is a decision within the sound discretion of the trial court and will not be reversed absent abuse of that discretion. State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). `An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court.’ State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). It is well established that conclusory or speculative expert opinions lacking an adequate foundation will not be admitted. Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 177, 817 P.2d 861 (1992). When ruling on whether expert testimony is speculative the court should keep in mind the danger that the jury may be overly impressed with a witness possessing the aura of an expert. Davidson v. Municipality of Metro. Seattle, 43 Wn. App. 569, 571-72, 719 P.2d 569 (1986). It is an abuse of discretion for a court to admit expert testimony that lacks adequate foundation. Weyerhauser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683-84, 15 P.3d 115 (2000). Parker admits there are no cases that address the admissibility of expert testimony about an individual’s mental ability for purposes of disproving identity. By analogy, therefore, he relies on diminished capacity cases, even though he clearly does not assert this defense. Parker contends that although Dr. Lezak was `unable to evaluate’ whether someone of Parker’s mental capacity had the ability to commit the murders; the jury should have been allowed to make this determination. He argues that under Ellis, such speculation is `the jury’s job’.[20] Parker misapprehends the meaning of Ellis. The Court in Ellis rejected the analysis of Edmon and determined the question of whether to admit defense expert testimony on diminished capacity is to be decided under ER 702, 401, and 402. In Ellis, the defendant presented evidence in support of his diminished capacity defense that he suffered from a mental disorder which impaired his ability to form the intent required to commit the crime. Once such a foundation is laid and the expert is allowed to testify, the Court held that the jury `can then determine what weight, if any, it will give to their testimony.’ Ellis, 136 Wn.2d at 523. Ellis does not eliminate the trial court’s role in determining whether expert testimony does not meet the requirements of ER 702, 401, and 402 nor does it allow speculative testimony. See State v. Atsbeha, 142 Wn.2d 904, 918-19, 16 P.3d 626 (2001). (trial court did not abuse its discretion in excluding expert testimony that did not meet the requirements of ER 401, 402, or 702).

Even though the trial court explicitly stated it did not apply Edmon, Parker maintains the trial court relied on Edmon, rather than ER 702, when it decided to exclude Dr. Lezak’s testimony. He claims that by excluding Dr. Lezak’s testimony because of the lack of a connection with an element of the crime, the court disregarded Ellis and was really applying the superceded Edmon factors.[21] Parker also relies on this court’s decision in State v. Mitchell, 102 Wn. App. 21, 997 P.2d 373
(2000). Mitchell was charged with two counts of third degree assault of a police officer in violation of RCW 9A.36.031(1)(g). The prosecution was required to prove Mitchell knew the victims were police officers. In support of his diminished capacity defense, Mitchell sought to introduce expert testimony that at the time of the crime he suffered from paranoid schizophrenia, a disorder capable of causing delusions which could inhibit his ability to know the individuals were police officers. The trial court excluded this testimony because the expert could not state that Mitchell was actually experiencing delusions when he committed the crime. This court concluded that the trial court erred in excluding this testimony, because `it is not necessary that the expert be able to state an opinion that the mental disorder actually did produce the asserted impairment at the time in question — only that it could have, and if so, how that disorder operates.’ Mitchell, 102 Wn. App. at 27.

In both Ellis and Mitchell, the expert testimony regarding the defendant’s mental condition was relevant and related to an element of the crime. Contrary to Parker’s argument, neither Ellis nor Mitchell allow the jury to speculate about whether an asserted mental condition is capable of affecting the defendant’s ability to commit a particular crime when the expert is unable to reach that conclusion and the evidentiary foundation has not been met. See State v. Bottrell, 103 Wn. App. 706, 14 P.3d 164 (2002), rev. denied, 143 Wn.2d 1004, 35 P.3d 381 (2001) (expert testimony should have been admitted when the expert was able to testify that the defendant suffered from post traumatic stress disorder and that condition could have impaired the ability to form intent); State v. Guilliot, 106 Wn. App. 355, 22 P.3d 1266 (2001) (expert testimony inadmissible where the testimony could not establish a link between the asserted condition, hypoglycemia, and the ability to form intent). Parker contends that the Ninth Circuit in Greene v. Lambert, 288 F.3d 1081 (9th Cir. 2002) rejected the Washington Supreme Court’s ER 702 analysis in Greene. Such is not the case. In Greene, the Ninth Circuit granted the defendant’s federal habeas petition and concluded the trial court’s decision to prohibit evidence of dissociative identity disorder (DID) which also precluded any mention of the disorder by the defendant or the victim, his psychiatric nurse, was an unconstitutional infringement on the defendant’s right to present a defense. The court reasoned that by so limiting the testimony, the defendant was denied the ability to `describe his state of mind at the time of the attack’ and was denied the right `to present the victim’s testimony about her observations.’ Greene, 288 F.3d at 1092. The court emphasized that its holding was narrow and did not reject the Washington Supreme Court’s ER 702 analysis or its requirement that expert testimony be relevant. In fact, the court stated:

— We do not hold that the result in this habeas proceeding necessarily would be the same if only expert testimony were at issue — We do not hold that Washington Rule of Evidence 702 is defective in any way. — We do not hold that a state is precluded from requiring that a particular expert be qualified properly, or from requiring any other appropriate foundation for expert testimony, in this or any other case.

Green, 288 F.3d at 1093.

The trial court found the testimony of Dr. Lezak was speculative and not relevant. Under ER 702 expert testimony is helpful only if it is relevant. Greene, 139 Wn.2d at 73. By her own admission, Dr. Lezak could not say whether Parker’s cognitive ability made him any more or less likely to have committed the murders. To satisfy either ER 401 or 702, Dr. Lezak’s testimony must have the tendency to make it more probable than not that Parker did not have the mental capacity to commit the crimes. Because Dr. Lezak ultimately could not state that the results of her examination and testing were related to the crimes charged, the testimony was not relevant. And to the extent that in the State’s interview, Dr. Lezak expressed opinions that Parker could not have committed these murders, she could not provide an adequate evidentiary foundation for this opinion. The trial court did not abuse its discretion when it decided to exclude the testimony of Dr. Lezak.

ADMISSION OF CUSTODIAL STATEMENTS
In order for a custodial statement to be admissible, it must be made after the defendant is fully advised of his rights and he knowingly, voluntarily, and intelligently waives them. State v. Wheeler, 108 Wn.2d 230, 237-38, 737 P.2d 1005 (1987). The State bears the burden of proving a knowing and voluntary waiver of constitutional rights by a preponderance of the evidence. State v. Braun, 82 Wn.2d 157, 162, 509 P.2d 742 (1973). In determining the voluntariness of a custodial statement, a court will evaluate the totality of the circumstances of the interrogation. State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984). Some factors that a court considers in assessing the totality of the circumstances include the defendant’s physical condition, age, mental abilities, experience, and the conduct of the police. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). A trial court’s conclusion that a waiver was voluntarily made will not be disturbed on appeal if there is substantial evidence in the record from which the trial court could have found by a preponderance of the evidence that the confession was voluntary. State v. Cushing, 68 Wn. App. 388, 393, 842 P.2d 1035
(1993). The existence of a mental disability does not mean a custodial statement is inadmissible, it is merely one factor to consider bearing on the issue of voluntariness. State v. Ortiz, 104 Wn.2d 479, 484, 706 P.2d 1069 (1985).

Parker challenges the admission of his custodial statements because the trial court did not make a finding specifically addressing his mental ability. But other than his own testimony that he only had an eighth grade education, Parker did not present evidence of his mental ability. And on the second day of the CrR 3.5 hearing, Parker explicitly stated he was not going to present expert evidence of his mental abilities and capacity `for strategic reasons’.[22]

Parker claims, however, that because the trial court had independent knowledge of his IQ score, it should have taken that information into account in assessing the voluntariness of his custodial statements in the CrR 3.5 hearing. Prior to the CrR 3.5 hearing, defense counsel told the court that Parker was going to petition the prosecutor to reconsider the decision to pursue the death penalty, even though his IQ test score of 75 did not meet the statutory criteria for mental retardation. Although Parker argues the court should have taken into consideration his IQ score, he cites no authority which allows consideration of information outside the CrR 3.5 hearing record to determine the voluntariness and admissibility of custodial statements.

Parker relies on two cases in support of his argument: State v. Ortiz and State v. Cushing. But in both cases, even though it appears that neither court addressed the mental capabilities of the defendants in written findings, the appellate court reiterated this was only one factor to consider and concluded there was substantial evidence to support the trial courts’ conclusions based on the totality of the circumstances that the defendants had validly waived their Miranda rights. Ortiz, 104 Wn.2d at 484-485; Cushing, 68 Wn. App. at 394-395.

Substantial evidence supports the trial court’s conclusion that Parker validly waived his Miranda rights based on the CrR 3.5 hearing record. The police officers testified in the CrR 3.5 hearing that Parker was advised of his Miranda rights on two separate occasions and that he acknowledged that he understood those rights. Parker admitted he had heard the Miranda warnings before and he understood them. During the interview, Parker was alert and coherent and actively participated in the conversation. Parker testified that he was not advised of the Miranda rights at any point after his arrest. The trial court found the testimony of the State’s witnesses more credible based on the totality of the circumstances and in a detailed fifteen-page order on the CrR 3.5 motion to suppress concluded that Parker had validly waived his Miranda rights.

Parker also challenges the trial court’s finding that his first request for a lawyer was equivocal. According to the testimony of the detectives, about an hour into their interview with Parker, he said `[c]an I call a lawyer?’[23] Parker was told he could call a lawyer, but when the detectives sought clarification and directly asked Parker twice whether he wanted a lawyer, he declined.

Parker argues that if the court had properly considered his mental ability, it would have concluded that he had made an unequivocal, rather than an equivocal, request for an attorney. However, he fails to explain or support this argument and the record supports the trial court’s conclusion that Parker did not make an unambiguous request for an attorney and the detectives properly clarified whether he wanted an attorney and confirmed that he did not.[24]

In its oral ruling, the court found the detectives’ testimony about the interview more credible than Parker’s.

[n]ot only from the circumstances of demeanor, which the State has already noted, but that as well of the thought that two homicide detectives assigned to something as serious as this would not advise the defendant of his Miranda Rights. And having taken that sort of step, would then choose to come up with a version of events that is believable not what I would call how to put it in other words, it’s not necessarily particularly favorable to them.[25]

Parker asserts these findings by the trial court violate the appearance of fairness doctrine and exhibit a bias in favor of the police officers. But, the gist of the court’s findings are not that the officers are more believable because of their position as homicide detectives assigned to an important case, rather their testimony was more credible and logical. Trial courts have broad discretion to weigh evidence and determine credibility because of their unique opportunity to observe the parties and their witnesses. See In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982). These findings do not indicate a bias or a violation of the appearance of fairness doctrine.

CrR 3.1(c)(2) VIOLATION
The trial court found that at 12:25 p.m., after several hours of interrogation, Parker made an unequivocal request for a lawyer and the detectives asked Parker no further questions. After Parker unambiguously requested an attorney, Detective Knauss, the lead detective, told Parker they had a warrant to draw his blood and needed to first obtain a blood sample. Knauss said he showed Parker the warrant and then made arrangements for the blood draw. About twenty minutes later, the blood draw occurred. There is no explanation in the record about why the blood draw had to occur before honoring Parker’s request to talk to an attorney.

The blood draw started at 12:50 p.m. and took a couple of minutes. At 1:15 p.m., almost an hour after Parker had requested an attorney, Parker asked to speak with Detective Knauss again. Detective Knauss returned to the interview room and talked with Parker from 1:18 p.m. to 2:38 p.m. At 2:38 p.m. Parker said he did not want to talk any further.

The court found that Parker’s statements made between 1:15 p.m. and 2:38 p.m. were admissible because Parker reinitiated the contact with the detective.[26] The court concluded the requirements of CrR 3.1(c)(2) were not violated because the earliest time that the police officers would have been able to put Parker in contact with an attorney was after the blood draw.

Because Parker asked to talk to the detective after his blood was drawn, the court concluded there was not enough time for the detectives to make reasonable efforts to contact an attorney.

CrR 3.1(c)(2) provides:

At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number of the public defender or official responsible for assigning a lawyer, and any other means necessary to place the person in communication with a lawyer.

Parker argues that because the detectives did not make any effort to facilitate contact with an attorney between 12:25 p.m. and 1:15 p.m., the statements he made after clearly asking for an attorney at 12:25 p.m. should have been suppressed.

Parker did not raise this issue below. At the CrR 3.5 hearing, neither Parker nor the State questioned the officers about their efforts to contact an attorney.[27] But because the trial court addressed the issue on its own initiative in its oral decision, we consider his argument on appeal.[28] Case law supports Parker’s claim that CrR 3.1(c)(2) was violated and his statements made between 12:55 p.m. and 2:38 p.m. should have been suppressed because the officers did not make reasonable efforts to contact an attorney immediately after his request. State v. Kirkpatrick, 89 Wn. App. 407, 948 P.2d 882 (1997). In Kirkpatrick, several hours after the defendant demanded an attorney and the police made no effort to facilitate contact, the defendant initiated a conversation with an officer and made a statement regarding his involvement in the crime. Because Kirkpatrick made his request during normal working hours at a police station where procedures exist to contact an attorney, the court held that the “earliest opportunity” to put him in touch with an attorney was immediately after his request. Kirkpatrick, 89 Wn. App. at 415.

As in Kirkpatrick, the earliest opportunity to put Parker in touch with an attorney was immediately following his request.[29] Even though Parker reinitiated contact, there is no explanation as to why the blood draw and paperwork took precedence over the requirements of CrR 3.1(c)(2).[30] The rights provided in CrR 3.1(c)(2) are not of constitutional origin.

Therefore, we apply a harmless error standard. Kirkpatrick, 89 Wn. App. at 417. The erroneous admission of evidence is harmless if there is a reasonable probability that the result would have been the same if the evidence had not been admitted. Kirkpatrick, 89 Wn. App. at 416. Assuming a violation of CrR 3.1(c)(2) occurred, any error was harmless in this case. At trial, Detective Knauss testified that during this second conversation with Parker from 12:25 p.m. to 2:38 p.m., Parker said that `Princess got the TV from her brother’ and that she got `something else from a yard sale.’[31] Parker also said that he was with Princess at the time of the second fire and that Princess `did not help me bring shit in.’[32] In Parker’s testimony at trial, he explained that what he meant by this last comment was that he did not bring anything belonging to the victims into the house, and so Princess could not possibly have helped him.[33] When asked about Renee Powell’s murder, he said that he `never was there’ and that he `did not do it.’[34] These statements are primarily exculpatory. Moreover, the evidence of Parker’s guilt is substantial: DNA from both murder scenes, the property recovered from Parker and from Gray, the testimony from a fellow jail inmate, and Parker’s earlier statements. In light of all the evidence, there is no reasonable probability that the outcome of the trial would have been different but for the admission of these statements.

IMPEACHMENT OF PRINCESS GRAY
Approximately midway through the trial, right before the State called Princess Gray to testify, Parker made a motion to exclude or limit her testimony under State v. Lavaris, 106 Wn.2d 340, 721 P.2d 575 (1986). Under Lavaris, a party may not call a witness for the primary purpose of impeachment with otherwise inadmissible hearsay. Lavaris, 106 Wn.2d at 346. Parker was seeking to preclude the State from impeaching Princess Gray with the initial statements she gave to the police and prosecutors about the property in her duplex and Parker’s involvement in the murders before she recanted.

After considering Parker’s motion and the arguments of the parties about its consequences, the court granted Parker’s motion but excluded some of the ER 404(b) evidence because it was no longer relevant or would impermissibly allow inquiry about the property in Gray’s possession. For example, the testimony of her mother and Blanche Parker concerning her recantation would no longer be relevant and evidence that she sold drugs would be excluded because it would allow inquiry into how she obtained the property in her duplex. Evidence of Princess Gray’s assaults on Parker and his girlfriend Cheron Bell, another assault on Parker, her prior convictions, her reputation for lying and her assistance to Parker in filling out his job application would still be admissible. Parker decided to withdraw his motion. By withdrawing his motion under Lavaris, Parker abandoned this issue. An abandoned issue is treated as though it was never raised. See State v. Valladares, 99 Wn.2d 663, 672, 664 P.2d 508
(1983) (defendant who voluntarily withdraws motion to suppress waives or abandons objection to admission of evidence). Because Parker clearly withdrew any objection to the State’s impeachment of Princess Gray, we do not address his argument on appeal. Parker also argues the prosecutor committed misconduct because he was aware of Lavaris and failed to bring it to the attention of the court and defense counsel. It is a violation of RPC 3.3 to fail to disclose controlling authority that is `directly adverse’ to the lawyer’s client’s position.[35] It is not clear, however, that Lavaris was directly adverse to the State’s position. Arguably, the State’s primary purpose for calling Princess Gray was not to impeach her. From the State’s perspective, Princess Gray’s testimony identified when Parker lived with her, the proximity of the duplex to the victim’s apartments, and that the property identified by the victims’ families and friends was in her possession and in her duplex.

When this issue was raised below, the trial court concluded that the prosecution had not breached its ethical obligation to raise the Lavaris issue. Likewise, we conclude that the prosecutor did not engage in misconduct by failing to bring the Lavaris case to the court’s attention.

ADMISSION OF DNA EVIDENCE
Parker argues that the DNA results from the DQ-Alpha, Polymarker, and D1S80 tests should have been excluded because the results are unreliable for two reasons: 1) the amount of DNA tested was below the minimum designated by the testing kit directions and 2) the testing kit color dots failed. DNA typing extracts a portion of DNA molecules from a forensic sample to determine the genetic profile. Calculations are then made to determine the likelihood of a random match of the genetic profile in the human population. DNA test results here showed that the genetic profile from Powell’s vaginal sample matched Parker’s profile and that the likelihood of occurrence was one in 2.3 million African-Americans. The DNA profile from the hair found at Walsh’s apartment also matched Parker’s profile and occurred once in every 9,500 African-Americans.

The standard of review for the admissibility of DNA evidence is abuse of discretion which accords deference to the trial court because the trial court is best suited to address these factual matters. State v. Kalakosky, 121 Wn.2d 525, 541, 852 P.2d 1064 (1993). Whether a testing error affected the reliability of the results is a question of fact. The trial court must determine if the particular DNA test is so flawed as to be unreliable and the results should be excluded because they are not helpful to the trier of fact. State v. Copeland, 130 Wn.2d 244, 922 P.2d 1304 (1996); State v. Cauthron, 120 Wn.2d 879, 899, 846 P.2d 502
(1993). Courts should not exclude scientific evidence whenever an analyst deviates from test protocol; rather, the deviation must materially affect the test outcome to warrant exclusion. Kalakosky, 121 Wn.2d at 543.

The Polymarker and DQ-Alpha tests, used in this case by FSA, recommend the analyst use between 2 and 10 nanograms of DNA. The protocols state that, for most samples, 2-5 nanograms are sufficient, but if the DNA sample is degraded it may be appropriate to use more than 10 nanograms of DNA. FSA was able to extract and use, from the forensic samples in this case, between .7 and 1 nanogram. Parker argues that the DNA typing results were unreliable because the amount of DNA tested was less than the manufacturer’s recommendation.

The trial court held extensive pretrial hearings on whether the DNA tests were reliable and admissible. Drs. Reynolds, Chakraborty, Sensabaugh, Blake, Brenner, and Geraghty testified on behalf of the State. Dr. Libby and Dr. Mueller testified for Parker. The ER 702 issues raised below included the extra bands of DNA, the amount of DNA used for testing, the faint control dots, preferential amplification, and contamination. The trial court entered detailed and comprehensive findings of fact and conclusions of law. The court determined the results were reliable under ER 702 and the defense objections could be considered by the jury in deciding what weight to give the DNA evidence.[36] Dr. Reynolds, Dr. Chakraborty, Dr. Sensabaugh, and Dr. Libby testified about the quantity of DNA used by FSA. Dr. Rebecca Reynolds also testified about the deviation from the recommendation of the manufacturer and the reliability of the results obtained by FSA in this case. Dr. Reynolds helped create the DQ-Alpha, Polymarker and D1S80 testing kits and participated in writing the requirements for these tests.[37] The State’s experts testified that 2 nanograms is not the minimum amount required for reliable testing results for the DQ-Alpha or Polymarker tests and 2.5 is not the minimum necessary for D1S80. The manufacturer’s recommended amounts are the amounts that will guarantee a result, but not the amount necessary to obtain reliable results. According to Dr. Reynolds, the product manufacturer suggests the minimum amount because of the wide variety of applications, but this is not the lower limit required for accurate testing. The expert testimony established that amounts down to .5 nanograms can give accurate and reliable testing results. Dr. Reynolds also testified that the analyst can determine if there is enough DNA present when performing the tests by looking at the product gel. From Dr. Reynolds’ review of the product gels in this case, it was evident there was sufficient DNA. Dr. Libby did not disagree with Dr. Reynolds concerning her observations of the gels. And he could point to no scientific support to show that a false positive ever resulted from using too little DNA.[38] The court found that the testing protocols did not establish that 2 nanograms is the minimum threshold required for reliable testing, rather this was `the amount that the manufacturer guaranteed a result.’[39] Thus, the court concluded that `there was sufficient DNA present on the product gels to obtain a reliable result.’[40] Parker also argues that the faintness of the control dots further supports his position that there was not a sufficient quantity of DNA to test. While performing the DNA tests, the manufacturers describe how to use the control dots as part of the testing kit. When these dots are visible, they show a round blue dot which indicates the conditions for DNA testing are met and the DNA can be typed. If there is no visible dot, then the DNA should not be typed because an accurate determination cannot be made based on that sample. In this case the C and S dots for the DQ-Alpha and Polymarker tests were faint in the photographs taken by Jennifer Mihalovich, the FSA testing analyst. According to the testimony of Mihalovich and the testimony of Dr. Reynolds, the bench notes clearly indicate that the dots could be seen on the wet strips before the photographs were taken. According to the expert testimony, the manufacturer’s test kit requires typing interpretations using the wet typing strips not the photographs. After considering the testimony of the experts, the trial court found:

Although the C and S dots may be faint in the photographs, this appears to be due to poor photography. Taking into account the examiner’s notes, the product gels and the fact that a band cannot be created from poor photography, it is obvious the C and S dots were present. The photographs are not the DNA evidence. The testimony of the examiner at trial will be the DNA evidence. Photographs are mere tools to assist the factfinder in understanding the evidence.[41]

The trial court’s findings that there was sufficient DNA present on the product gels to obtain reliable results and that the faintness of the dots in the photographs did not detract from the reliability of the results is supported by substantial evidence. The trial court did not abuse its discretion in admitting the DNA test results and testimony under ER 702.[42] Parker also challenges the admission of an exhibit which he claims was prejudicial and confusing because it excludes another individual who was labeled as the `suspect’ as a donor of the sperm sample taken from Renee Powell.

At the time of their initial forensic DNA testing, FSA had a sample from another individual identified as a potential suspect. Subsequently, FSA received a sample from Parker for testing. One of the exhibits, admitted and referred to during the testimony of Jennifer Mihalovich and Dr. Reynolds, included photographs of typing strips labeled as the `suspect’ from this initial person who is excluded as a donor of the sperm from the vaginal swab of Renee Powell. Although Parker argues on appeal that the exhibit should have been excluded under ER 403, the exhibit was admitted and referred to during testimony without objection. The failure to object to the admission and use of the exhibit at trial precludes our consideration of this argument. State v. O’Neill, 91 Wn. App. 978, 993, 967 P.2d 985 (1998). But even if we consider this argument, the testimony of both Dr. Reynolds and FSA analyst Mihalovich, clearly informed the jury that the reference sample labeled for the `suspect’ was not DNA from Parker’s reference sample. According to the trial testimony, the DNA results from the `suspect’ were obtained approximately a year before any results were obtained for Parker. Parker’s sample was clearly identified and typed in other exhibits. Because there was no confusion or contradiction created by the use of this exhibit, there was no prejudice to the defendant, and no error occurred.

In summary, the trial court did not abuse its discretion either in admitting the DNA evidence or in excluding the expert testimony regarding Parker’s mental ability. The trial court did not err in concluding that Parker validly waived his Miranda rights. Although a violation of CrR 3.1(c)(2) occurred, the admission of Parker’s exculpatory statements was harmless error. Parker waived his objection to the State’s impeachment of Princess Gray. We affirm.

WE CONCUR: BECKER, J., ELLINGTON, J.