Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 61709-5
Title of Case: State Of Washington, Resp. vs. Dennis Grey, App.
File Date: 07/06/2009
SOURCE OF APPEAL
Appeal from King County Superior Court
Docket No: 91-1-04466-6
Judgment or order under review
Date filed: 04/21/2008
Judge signing: Honorable Jeffrey M Ramsdell
Authored by Marlin Appelwick
Concurring: Mary Kay Becker
COUNSEL OF RECORD
Counsel for Appellant(s)
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104
King County Prosecutor's Office
516 3rd Ave
Seattle, WA, 98104-2385
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
v. MOTION TO PUBLISH
DENNIS GRAY )
AKA DENNIS GALUSHA,
The hearing panel having reconsidered its prior determination not to
publish the opinion filed for the above entitled matter on July 6, 2009, and
finding that it is of precedential value and should be published. The appellant,
Dennis Gray, having filed a motion to publish and respondent having filed its
answer to the appellant's motion to publish herein, and a panel of the court
having determined that the motion should be granted;
Now, therefore, it is hereby
ORDERED that the written opinion filed July 6, 2009, shall be published
and printed in the Washington Appellate Reports.
DATED this day of August, 2009.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
DENNIS GRAY )
AKA DENNIS GALUSHA, )
FILED: July 6, 2009
Appelwick, J. -- In 1991, Dennis Gray was convicted of first degree rape
and attempted first degree rape. Gray appeals the trial court's denial of his 2007
request, pursuant to RCW 10.73.170, for postconviction DNA testing on the
physical evidence used at trial. Gray satisfied the statute because he met the
procedural requirements of the statute by demonstrating that DNA testing had
advanced since the time of trial, and by demonstrating that the evidence from
the DNA testing would be new, significant, and material to the identity of the
perpetrator. Gray satisfied the substantive requirement of the statute by
demonstrating the likelihood that the evidence would suggest innocence on a
more probable than not basis. We reverse and remand.
Dennis Gray was convicted of first degree rape, attempted first degree
rape, and unlawful imprisonment for an incident that occurred on August 7,
1991. Four teenagers, two girls and two boys, were camping near the home of
1 Both parties cite the State's motion and memorandum in opposition to defendant's motion for
postconviction DNA testing for the facts. The only other source, albeit scarce, of facts in the
record is the opinion this court filed on May 15, 1995.
one of the girls when Gray2 approached their campsite, made some small talk,
and asked if they had any marijuana. Gray left, but returned a few moments
later, this time carrying a knife with a four to six inch blade. He grabbed R.J.,
one of the girls, and told the boys to lie down or he would kill her. The boys
complied. When R.J. refused to take her clothes off, Gray held her around the
throat with the knife to her neck and told C.S., the other girl, to take her clothes
off. Without releasing R.J., Gray forced C.S. to perform fellatio on him. Gray
pushed C.S. on her back and attempted to vaginally penetrate her. He then
anally raped her. At some point during the rape, Gray's grasp loosened on R.J.,
and she was able to run away. Gray fled.
Police arrived on the scene shortly after the attack and found a truck
registered to Gray near the campsite. Police set up surveillance. At about 5:00
a.m., Gray emerged from a field near R.J.'s house, and police arrested him, as
he matched the teenagers' description. They described Gray as wearing a black
leather biker-type jacket, jeans, and black boots. On the jacket was a distinctive
lapel pin. Gray had a beard and long ponytail.
Police brought bloodhounds to the scene of the attack, where they were
scented to Gray using clothing Gray was wearing at the time of his arrest. The
dogs then located Gray's scent at the rape scene, followed it through a field, out
onto the street, and to the spot where police arrested Gray and put him in the
2 We use Gray's name in the facts, because he was convicted of the crime. However, we refer
instead to the "assailant" or "perpetrator" in our postconviction testing analysis.
Police prepared a photo montage, where Gray's ponytail had been
undone. They showed it to the four teenagers. None picked Gray. The two
boys, but not the two girls, positively identified Gray in a second montage where
his hair was in a ponytail.
Police collected rectal and vaginal swabs; 3 pubic and head combings;
and the underpants, bra, shorts, and tights from C.S. The swabs and clothing
were tested for semen, with negative results. No DNA (deoxyribonucleic acid)
testing was done on the swabs. Police also collected samples from Gray's
clothing. In addition, hairs were collected from both victims, including C.S.'s
pubic and head combings, the sleeping bags on which the attacks occurred, and
Gray's clothing and belongings. Hair comparison analysis presented at trial
showed that two of the five hairs recovered from one sleeping bag were
dissimilar to all the control hair samples. None of the forensic scientist's
analysis conclusively established Gray as the assailant. DNA testing of the hair
samples was not conducted.
Gray filed a motion for postconviction DNA testing under RCW 10.73.170
in King County Superior Court on February 13, 2008. Gray moved the court to
allow DNA testing on three groups of evidence: (1) clothing worn by C.S. and
R.J.; (2) hairs recovered from the scene, the victims, and Gray; and (3) rectal
and vaginal swabs taken from C.S. just after she was raped.4 The trial court
3 C.S. wiped her genital area and urinated before swabs were taken.
4 Gray also requested DNA testing of the sleeping bags on which the crimes occurred, but the
sleeping bags no longer exist as evidence.
denied Gray's motion, stating only that "[d]efendant's Motion is Denied for failure
to satisfy the requirements of RCW 10.73.170."5 Gray timely appealed.
I. Standard of Review
The postconviction DNA testing statute articulates three requirements,
some substantive and some procedural:
(2) The motion shall:
(a) State that:
(i) The court ruled that DNA testing did not meet acceptable
scientific standards; or
(ii) DNA testing technology was not sufficiently developed to
test the DNA evidence in the case; or
(iii) The DNA testing now requested would be significantly
more accurate than prior DNA testing or would provide significant
(b) Explain why DNA evidence is material to the identity of
the perpetrator of . . . the crime . . . ; and
. . .
(3) The court shall grant a motion requesting DNA testing
under this section if such motion is in the form required by
subsection (2) of this section, and the convicted person has shown
the likelihood that the DNA evidence would demonstrate innocence
on a more probable than not basis.
RCW 10.73.170; State v. Riofta, No. 79407-3, 2009 WL 1623427, at *2 (Wash.
June 11, 2009).
In construing a statute, the objective is to ascertain and give effect to the
legislature's intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).
If a statute uses plain language and defines essential terms, the statute is
unambiguous. State v. Stivason, 134 Wn. App. 648, 651, 142 P.3d 189 (2006),
5 The statute does not explicitly require that the court enter findings of fact, and the trial court
review denied, 160 Wn.2d 1016, 161 P.3d 1027 (2007). If the statute is
unambiguous, a court may not look beyond its plain meaning or consider
legislative history; rather, the court must determine legislative intent through the
plain meaning of the statute. Id.
RCW 10.73.170(2)(a) and (b) are procedural requirements relating to the
motion's form and content. Riofta, 2009 WL 1623427, at *2.6 The substantive
requirement of RCW 10.73.170(3) requires the convicted person to show the
likelihood that the DNA evidence would demonstrate innocence on a more
probable than not basis. Riofta, 2009 WL 1623427, at *4. As part of satisfying
RCW 10.73.170(3), Gray must also carry the burden on the matters pleaded
under RCW 10.73.170(2). Whether the trial court correctly denied Gray's
motion turns on whether Gray has established that DNA technology was not
sufficiently developed to test the biological evidence at the time of his trial, or
that the DNA testing now requested would provide significant new information;
shown that the information is material to the identity of the perpetrator; and
demonstrated a likelihood that the DNA evidence would demonstrate innocence
on a more probable than not basis.
We review the trial court's application of the statutory standard for an
abuse of discretion. Riofta, 2009 WL 1623427, at *5.
II. Evolution of DNA Testing: RCW 10.73.170(2)(a)(ii)
The DNA testing conducted in the early 1990s demanded a large and
6 The State does not dispute that Gray has followed the statute's procedures for form.
properly preserved sample of biological material. Cynthia E. Jones, Evidence
Destroyed, Innocence Lost: The Preservation of Biological Evidence Under
Innocence Protection Statutes, 42 Am. Crim. L. Rev. 1239, 1242 n.18 (2005).
Because no semen was present, the testing available at Gray's trial was not
adequate to detect the DNA on C.S.'s underwear, or on the vaginal or anal
swabs. Hair examination, which compared control hairs from the victims to hairs
taken from the physical evidence, did not establish Gray as the assailant. DNA
testing on the hairs was not conducted for trial, nor does the record establish
that DNA testing of hair was available at the time of trial.
Gray argues that the new DNA testing method, short tandem repeats
(STR), is much more accurate than restriction fragment length polymorphism
(RFLP), the method available at the time of his trial. To buttress his argument,
he cited scientific and legal literature discussing the advances in DNA testing,
noting that STR testing has made it possible to test small amounts of previously
untestable biological material contained in rape kits. Id. He also provides
authority for his proposition that STR or mtDNA (mitochondrial) testing could be
conducted on the hairs. Robert Aronson & Jacqueline McMurtrie, The Use and
Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues,
76 Fordham L. Rev. 1453, 1470-71 (2007).
The State conceded in its trial brief that DNA testing technology has
significantly advanced. However, the State responds that Gray has not met his
burden under RCW 10.73.170(2)(a)(ii) regarding the swabs, because he has not
shown that the technology exists to find the assailant's DNA on the vaginal and
rectal swabs, given the overwhelming amount of C.S.'s DNA on the swabs. The
State does not cite to any legal or scientific literature to support its argument.
Furthermore, the State makes no argument relative to advances in DNA testing
on hair samples or clothing.
We hold that Gray has satisfied RCW 10.73.170(2)(a)(ii).
III. Significant New Information: RCW 10.73.170(2)(a)(iii) 7
In Riofta, the Supreme Court held that "the statutory language, 'significant
new information,' includes DNA test results that did not exist at the time of trial
and that are material to the perpetrator's identity, regardless of whether DNA
testing could have been performed at trial." 2009 WL 1623427, at *1.
The testing available at Gray's trial could not identify the source of any
DNA on C.S.'s underwear or on the swabs. The scientific literature cited above
indicates the new testing may be able to analyze DNA from biological trace
material even without the presence of semen. The hair comparison analysis
showed that none of the hairs taken from the victims matched Gray's but could
not identify the donor. The DNA testing on the hairs would yield new
information. Further, if the testing of swabs taken from C.S. and the hair sample
found on R.J., who was held by the perpetrator while he raped C.S., both
revealed a DNA profile of someone other than Gray, this new information would
be significant. The State provides no specific rebuttal on this point.
7 Although a petitioner need only meet one of the requirements listed in RCW 10.73.170(2)(a),
Gray has pleaded two, so we evaluate both.
Gray has met the requirement of RCW 10.73.170(2)(a)(iii).
IV. Materiality: RCW 10.73.170(2)(b)
Gray asked the court to allow DNA testing on three groups of evidence:
(1) clothing worn by C.S. and R.J.; (2) hairs recovered from the scene, the
victims, and Gray; and (3) rectal and vaginal swabs taken from C.S. just after
she was raped. Gray argues that the victims' clothing may have traces of skin
cells; because the clothing has not been tested, the results may be material to
the identity of the perpetrator. The assailant demanded that C.S. remove her
clothing herself, and the record does not show the extent to which the
perpetrator may have had direct contact with it. However, DNA from the
assailant could have been transferred from C.S.'s body to her clothing when she
dressed following the assault. DNA evidence from the underwear would be
material, even if DNA evidence from the rest of her clothing might not be.
Although Gray requests testing on R.J.'s clothing, the record does not
reflect whether it is available. R.J. was held by the assailant while he raped
C.S.8 However, even assuming that a new DNA profile was identified on R.J.'s
clothing, that DNA evidence alone would not be material to the identity of the
Gray argues that DNA testing of the hair would be material to the identity
of the perpetrator because there was a single perpetrator, and DNA evidence
8 A forensic scientist tested C.S.'s clothing and did not find traces of semen or other bodily fluid.
Hair was recovered from R.J.'s clothing, but the record is unclear about whether other biological
samples were obtained, or could be obtained, from her clothing.
from another person would be material to the perpetrator's identity. The State
responds that because Gray was already excluded as the source of the hairs
based on hair comparison analysis during trial, DNA testing of the hairs would
not be material to the identity of the perpetrator. Even if the hairs contained a
DNA profile of someone other than Gray or the victims, the State explains, any
number of innocent people could have deposited hairs on the victims or on the
sleeping bags (from which the hairs were collected). This argument rings true as
to the hair found on the sleeping bags and the victims' outerwear. However, the
possibility exists that the hair found in the pubic combing of C.S. and the hair on
R.J.'s clothing came from the same person. Such a match would be significant,
particularly if it identified a male other than Gray or the two boys. If the DNA
testing revealed this person was not Gray, the results would be material to the
identity of the perpetrator.
Gray also requests testing on the vaginal and rectal swabs, arguing that if
DNA other than C.S.'s is present, it will be material to the identity of the
perpetrator. The State asserts that testing the vaginal and rectal swabs, when
there is allegedly no semen or sperm on those swabs, would not be material to
the identity of the perpetrator.
The scientific and legal literature supplied by Gray suggested semen or
sperm may not be necessary to conduct DNA testing; skin cells may be enough.
The absence of Gray's DNA from the swabs would not be material. Even the
presence of a third person's DNA on the swabs or on any other evidence,
considered individually, may appear to lack materiality. However, we must
consider the possibility that the combination of the test results would identify the
perpetrator. For example, if testing revealed a matching DNA profile from the
swabs taken from C.S., and from R.J.'s clothing or hair taken from her clothing,
this evidence would be clearly material to the identity of the perpetrator.
We hold that Gray has met his burden under RCW 10.73.170(2)(b).
V. Demonstrating Innocence on a More Probable than not Basis: RCW
The legislative intent behind the 2005 amendment to RCW 10.73.170 was
to broaden access to DNA testing. Riofta, 2009 WL 1623427, at *2. Gray urges
that the standard in 10.73.170(3) -- "'the likelihood that the DNA evidence would
demonstrate innocence on a more probable than not basis'" -- is a "unique"
standard, because of the legislature's addition of "likelihood" to the common
more probable than not standard. Gray cites dictionary definitions equating
"likelihood" to probability or chance. If "likelihood" means probability, then it is
redundant of the more probable than not standard. Because courts must give
effect to every word in a statute, Gray explains that the moving party must show
only that there is a chance that DNA evidence would probably show the person
The State responds that "likelihood" means probability, and that Gray has
not shown that testing will demonstrate innocence on a more probable than not
basis, because the evidence on which he was convicted was strong.9 Because
this statute applies to postconviction testing, the evidence will always have been
sufficient to convict beyond a reasonable doubt. But whether the evidence in the
original trial was strong or weak is only part of the question.
The Supreme Court has outlined a test, consistent with the mandate from
the legislature, to assess the probability that new DNA evidence would be
probative of innocence on a more probable than not basis. "To determine the
probability that a petitioner could demonstrate his innocence with the aid of
favorable DNA test results, courts must consider the evidence produced at trial
along with any newly discovered evidence and the impact that an exculpatory
DNA test could have in light of this evidence." Riofta, 2009 WL 1623427, at *5.
Noting the legislature's use of the word "innocence," the Supreme Court
explained the legislative intent to restrict the availability of postconviction DNA
testing to a class of extraordinary cases, because to say a person is innocent
suggests the State has convicted the wrong person. Id. at *5 n.4. Hence, "[t]he
statute requires a trial court to grant a motion for postconviction testing when
exculpatory results would, in combination with the other evidence, raise a
reasonable probability the petitioner was not the perpetrator." Id. at *4.
9 We note that much of the evidentiary basis on which Gray was convicted was circumstantial.
The evidentiary basis for Gray's conviction consisted of two photographic montages, the two
boys' in-court identifications of Gray, opinion testimony that the two boys were more positive
about their pick from the second montage than the first, and bloodhound testimony that tracked
his scent from the campsite to the spot of his arrest. Police also found a truck registered to Gray
near the campsite shortly after the crime was reported. While all the signs might point to Gray,
we cannot disregard the possibility of flawed evidence. For an example of eyewitness
misidentification, see the Innocence Project's explanation of Ronald Cotton's case, where Cotton
was improperly identified in a police lineup and in a photo identification, and DNA evidence later
exonerated him. Innocence Project, Know the Cases, http://www.innocenceproject.org/Content/
72.php (last visited May 19, 2009).
In Riofta, the court declined to order testing on a white hat found on the
sidewalk near the driveway where the assailant shot at the victim, even when the
victim saw that the assailant was wearing it. Id. at *1. Even if Riofta obtained
the DNA test results he sought -- an absence of his DNA from the hat -- the result
would not be probative of his innocence. Id. at *5, *7. Because the shooter had
come from a vehicle with other people in it, the court found that any of the other
occupants could have worn the hat before the shooting, so the presence of other
DNA profiles than Riofta's would not suggest his innocence. Id. at *6.
Unlike Riofta, here, only one person perpetrated this crime. The testing
could yield various results. Gray could be identified with certainty as the
perpetrator. The test could be inconclusive. Or, it could show that the DNA
profiles from C.S.'s hair combings, underwear, or swabs matched the DNA
profile of the hair sample taken from R.J.'s clothing, but did not match Gray's
DNA profile. This would suggest Gray's innocence on a more probable than not
Factually, this case is similar to In re Pers. Restraint of Bradford, 140 Wn.
App. 124, 165 P.3d 31 (2007). Though that case concerned the question of a
new trial after the DNA test results were known, it bears on the question of
probable innocence. In Bradford, the appellant requested through a personal
restraint petition that the court reverse his convictions for rape and burglary
based upon newly discovered DNA evidence. Id. at 126. Posttrial testing
revealed DNA on the mask that was neither Bradford's nor the victim's; rather it
belonged to an unidentified donor. Id. at 128. Because the victim had testified
that the assailant repeatedly pushed the mask back over her eyes, the court was
satisfied with the strength of the inference that Bradford was not the perpetrator
and granted him a new trial. Id. at 132. Here, the assailant had intimate contact
with one victim while holding the other victim at knife point. The presence of the
same DNA profile on either the vaginal or anal swabs taken from C.S. and on
any of the samples from R.J. would support a strong inference that the donor
was the assailant. If that DNA profile does not match Gray's, it would be
probative of his innocence on a more probable than not basis.
We hold that Gray has satisfied RCW 10.73.179(3).
We reverse the trial court's order denying Gray's motion for
postconviction DNA testing and remand.