542460MAJ

~

Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 54246-0-I
Title of Case: State of Washington, Respondent v. Jesus
C. Mezquia, Appellant
File Date: 08/22/2005


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 03-1-03622-2
Judgment or order under review
Date filed: 04/30/2004
Judge signing: Hon. Sharon Armstrong


JUDGES
------
Authored by Susan Ward Cook
Concurring: H Joseph Coleman
Marlin Appelwick


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Jason Brett Saunders
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

Brian Martin McDonald
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2362


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION I

STATE OF WASHINGTON, ) NO. 54246-0-I
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
JESUS C. MEZQUIA, )
)
Appellant. ) FILED: AUGUST 22, 2005

COOK, JPT* -- Jesus Mezquia was convicted of first degree felony murder
in connection with the rape and strangulation death of Mia Zapata. Because
we conclude that the trial court did not abuse its discretion in excluding
'other suspect' evidence regarding Zapata's former boyfriend or in
admitting DNA evidence obtained in Florida and because the trial court's
preliminary ruling regarding ER 404(b) evidence has not been properly
preserved for review, we affirm Mezquia's conviction. The trial court's
imposition of an exceptional sentence, however, violated Mezquia's Sixth
Amendment rights and we therefore remand for resentencing.

*Judge Susan Cook is serving as a judge pro tempore of the Court of Appeals
pursuant to RCW 2.06.150.
FACTS
In July 1993, Mia Zapata was 27 years-old and the lead singer of a band
called 'The Gits'. Around July 4, Zapata returned to Seattle from a
successful West Coast tour with the band.
Zapata spent the evening of July 6 drinking with friends at the Comet
Tavern, a bar that she frequented in the Capitol Hill neighborhood. At
about 1:00 a.m., she left the Comet and went across the street to the
apartment of a friend known as 'T.V.' T.V. and Zapata sang backup vocals
together in another band and T.V.'s apartment was upstairs from a studio
where various bands practiced. Before going up to the apartment, Zapata
first checked the studio to see if her former boyfriend, Robert Jenkins,
was there. She was intoxicated, angry, and frustrated that she could not
find Jenkins because she wanted to talk to him about their relationship.
An hour later, at about 2:00 a.m., Zapata told T.V. she was going home and
left the apartment.1
At about 3:30 a.m., the Seattle Fire Department responded to a call
reporting the body of a young female lying on the pavement of a dead-end
street at 24th Avenue South between South Yesler and South Washington
Streets. Zapata had no pulse and was not breathing. The paramedics'
attempts to resuscitate her were unsuccessful and Zapata was pronounced
dead shortly thereafter.
Zapata's sweatshirt was pulled up underneath her arms and her hood was tied
tightly around her face and knotted under her throat. Her underwear,
wallet and torn bra were stuffed into the pocket of her jeans. The medical
examiner determined that Zapata was strangled with a ligature and concluded
that the drawstring of her sweatshirt was the ligature used.
Zapata suffered injuries to her internal organs. She also suffered vaginal
and anal injuries, consistent with rape. Zapata had many external
abrasions, including abrasions along the sides of her nipples. Because the
abrasions could have been caused by teeth, the medical examiner took swabs
from the area.
In 1993, a Washington State patrol forensic scientist examined the swabs
taken from Zapata's body. No semen was detected. However, the presence of
saliva was found on the nipple swabs.
In 2001, a Seattle police detective assigned to review unresolved cases
submitted the swabs to the Washington State Patrol Crime Laboratory for
additional DNA analysis. A forensic scientist performed DNA work on the
swabs using polymerase chain reaction and short tandem repeat methodology.
She obtained two DNA typing profiles in equal concentrations on both the
right and left nipple swabs: Zapata and an unknown male. No other DNA
profile was obtained on any of the other material tested.2
In June 2002, the information concerning the unknown male profile was
entered into the national DNA database. It did not match any known
profiles.
Six months later, in December 2002, the Washington State Patrol was
notified of a match: the DNA profile of Jesus Mezquia matched the profile
of the unknown male.3 The frequency of the profile in the United States is
one in 1.5 trillion.
At the time the match was found, Mezquia resided in Florida. He was on
probation following a 2002 Florida felony conviction for possession of
burglary tools. As a condition of his probation, he was required to submit
two cheek swab samples.
Mezquia lived in Seattle between 1992 and 1994. He lived with a woman
about a mile and a half from where Zapata's body was found. On the date of
the murder, the woman he lived with was out of town.
On January 10, 2003, Seattle police detectives arrested Mezquia in Miami.
After being advised of his Miranda4 rights, Mezquia spoke with the police.
They showed him a photograph of Zapata and he denied ever knowing or having
sexual contact with her. When questioned, Zapata's friends and bandmates
all said that they had never seen or heard of Mezquia.
By amended information, the State charged Mezquia with premeditated first
degree murder, and alternatively, with first degree felony murder based on
first or second degree rape. After a month-long jury trial, the jury
convicted Mezquia of first degree felony murder.
The trial court imposed an exceptional sentence of 440 months imprisonment
based on the aggravating circumstance of deliberate cruelty.5 Mezquia
appeals both his conviction and the exceptional sentence.
'OTHER SUSPECT' EVIDENCE

Mezquia sought to present evidence that Zapata's former boyfriend, Jenkins,
committed the murder. Mezquia argued that there was evidence pointing to
Jenkins as the guilty party, including: (1) Zapata was angry about Jenkins'
relationship with his new girlfriend, (2) she expressed extreme anger and
frustration towards him just prior to her death when she was at T.V.'s
apartment,6 (3) Zapata was looking for Jenkins that evening, (4) Jenkins
called Zapata's roommate the next morning asking to speak with Zapata and
when told she might be in the shower responded that the person in the
shower probably wasn't Zapata, and (5) a friend of Zapata's said Zapata
told her Jenkins sometimes went 'crazy' and had attacked her a couple of
times in the past.7
The trial court denied Mezquia's motion to present this evidence, ruling:
{T}here is insufficient evidence, and certainly almost no admissible
evidence, that would link Robert Jenkins to the killing. It is true that,
at the time she left the apartment at 2 a.m. the morning she was killed,
Ms. Zapata was in a rage, and she said she was going to find Robert, but
there is no step taken by him that would connect him to the crime or
indicate that he had any intention to act on what are said to be previous,
I guess, types of violence toward her.{8}

Mezquia contends the court abused its discretion and its ruling deprived
him of his right to present a defense.
A criminal defendant has a constitutional right to present a defense
consisting of relevant, admissible evidence. State v. Rehak, 67 Wn. App.
157, 162, 834 P.2d 651 (1992). In order to be relevant, and therefore
admissible, the evidence connecting another person with the crime charged
must create a trail of facts or circumstances that clearly point to someone
other than the defendant as the guilty party. State v. Maupin, 128 Wn.2d
918, 928, 913 P.2d 808 (1996). The evidence must establish a nexus between
the other suspect and the crime. State v. Condon, 72 Wn. App. 638, 647, 865
P.2d 521 (1993). The defendant has the burden of showing that the other
suspect evidence is admissible. State v. Pacheco, 107 Wn.2d 59, 67, 726
P.2d 981 (1986).
The admission or refusal of evidence lies largely within the sound
discretion of the trial court and is reviewed only for an abuse of
discretion. Rehak, 67 Wn. App. at 162.
Mezquia argues that as in State v. Clark, 78 Wn. App. 471, 898 P.2d 854
(1995), the trail of evidence leading to Jenkins as the murderer was
sufficiently strong to allow the admission of his proffered evidence at
trial.9 In Clark, the defendant presented evidence of the other suspect's
motive, opportunity, and ability to commit the arson for which Clark had
been charged. Clark, 78 Wn. App. at 474- 476. The fire occurred in a
house Clark rented for business purposes. Clark, 78 Wn. App. at 473. The
other suspect believed Clark had an affair with his wife and had molested
his daughter and was obsessed with damaging Clark. Clark, 78 Wn. App. at
474. The other suspect had warned his former spouse (Clark's girlfriend) to
'watch it' because he knew how to start fires without detection. Clark, 78
Wn. App. at 475. He also told her it was 'too bad' Clark was in jail for
something he did not do. Clark, 78 Wn. App. at 475. The court in Clark
concluded the other suspect evidence was admissible because it clearly
pointed to someone other than the defendant as the guilty party. Clark, 78
Wn. App. at 480.
Mezquia also cites Leonard v. The Territory of Washington, 2 Wash. Terr.
381, 396, 7 P. 872 (1885). In Leonard, where there was no direct evidence
against the defendant, and the defendant was able to show that the other
suspect had a motive and opportunity to commit the crime, and had
previously threatened to kill the victim, the Supreme Court concluded the
defendant should be able to present other suspect evidence. Leonard, at
396.
But here, the evidence offered by Mezquia did not clearly point to Jenkins.
There was no physical evidence connecting Jenkins to the crime.10 There was
no evidence that Zapata had contact with Jenkins after she left T.V.'s
apartment. Nor was there any evidence that Jenkins had the opportunity or
a motive to commit the crime.11 The trial court's decision to exclude the
evidence was not an abuse of discretion.
ER 404(B) EVIDENCE

Mezquia also sought to present evidence that another man, Scott McFarlane,
had committed the murder. McFarlane was a cab driver who claimed to have
had a relationship with Zapata. A year after Zapata died, he made some
odd, incriminating statements about the murder. He was also driving a cab
in the Capitol Hill area on the night of the crime. Following a pretrial
hearing, the trial court ruled that the evidence sufficiently connected
McFarlane to the crime and thus, was admissible.
During the trial, after the State had rested its case, a woman, Valentina
Dececco, came forward and alleged that Mezquia had assaulted her about six
months after Zapata's murder. She did not report the incident at the time,
but after Mezquia was charged with murder and she saw his photograph in the
newspaper, she contacted the Seattle police. Dececco said that in January
1994, at around 4:30 a.m., she was leaving her apartment in downtown
Seattle for an early morning jog when Mezquia approached her. Mezquia
knocked her to her knees and she felt pain at her throat. Dececco rose to
her feet and ran away.12 A short time later, when Dececco returned to her
apartment building, she saw Mezquia standing at the corner of her building,
staring at her and masturbating.
Before the defense put on its case, it informed the court that the State
had expressed its intent to introduce this evidence in rebuttal. The
defense requested an 'advisory opinion' from the court regarding the
admissibility of the evidence and if admissible, how it could avoid opening
the door to the admission of the evidence in presenting a defense.13
The trial court ruled that the evidence was probative of the issues of
identity and plan, and the probative value of the evidence outweighed the
prejudice. Therefore, the evidence was admissible under ER 404(b).14
However, since the witness was offered as rebuttal, the court ruled it
would only come in if the defense raised the issue of identity. So, if the
defense presented its other suspect evidence related to MacFarlane, the
State would be able to call Dececco in rebuttal because the 'other suspect
evidence is necessarily directed to the issue of the identity'.15
The defense decided not to introduce the evidence related to McFarlane and
the State did not introduce the ER 404(b) evidence.
Mezquia argues that the court erred in ruling that the evidence of the
prior assault was admissible under ER 404(b). The State responds that
because Mezquia decided not to present the other suspect evidence and the
404(b) evidence was not introduced, any error has not been preserved for
appeal.
The State analogizes to Luce v. United States, 469 U.S. 38, 43, 105 S.
Ct. 460, 83 L. Ed. 2d 443 (1984). In Luce, the United States Supreme Court
held that in order to raise and preserve for review a claim of improper
impeachment with a prior conviction, a defendant must testify. The Court
reasoned that it must know the precise nature of the defendant's testimony
in order to properly rule on whether the prosecution could use a prior
conviction to impeach that testimony. Luce, 469 U.S. at 41. Our Supreme
Court followed Luce and held that requiring a defendant to testify and
admit or face impeachment with his prior criminal conviction in order to
preserve his challenge to the court's preliminary ruling admitting this
evidence does not infringe on his right to testify on his own behalf. State
v. Brown, 113 Wn.2d 520, 533-34, 782 P.2d 1013, 1021-22 (1989)
In explaining the difficulty of reviewing a preliminary ruling regarding
evidence that is not admitted at trial, the Luce Court observed:
Any possible harm flowing from a district court's in limine ruling
permitting impeachment by a prior conviction is wholly speculative. The
ruling is subject to change when the case unfolds, particularly if the
actual testimony differs from what was contained in the defendant's
proffer. Indeed even if nothing unexpected happens at trial, the district
judge is free, in the exercise of sound judicial discretion, to alter a
previous in limine ruling. On a record such as here, it would be a matter
of conjecture whether the District Court would have allowed the Government
to attack petitioner's credibility at trial by means of the prior
conviction.
When the defendant does not testify, the reviewing court also has no way of
knowing whether the Government would have sought to impeach with the prior
conviction. If, for example, the Government's case is strong, and the
defendant is subject to impeachment by other means, a prosecutor might
elect not to use an arguably inadmissible prior conviction.

Luce, 469 U.S. at 41-42.

Other jurisdictions that have considered the issue have concluded that
the rationale of Luce applies equally to preliminary rulings regarding the
admissibility of evidence under ER 404(b) and under other evidentiary
rules. United States v. Hall, 312 F.3d 1250 (11th Cir. 2002), is
illustrative. Hall was charged with the distribution and receipt of child
pornography. The State expressed its intent to introduce a videotaped
interview with a child victim in a pending criminal case against Hall.
Pretrial, the court ruled that taped interview was admissible under Fed. R.
Evid. 404(b) to prove intent, knowledge and lack of mistake or accident, in
the event that Hall asserted lack of intent as a defense. Hall chose not
to assert a defense of lack of intent and the 404(b) evidence was not
admitted at trial. The Eleventh Circuit Court concluded:
{T}he record is too minimally developed to support any meaningful review of
the district court's pre-trial decision about Rule 404(b) evidence.
Consequently, any possible harm flowing from the district court's ruling --
permitting the admission of the videotaped interview of the child in the
event that Hall raised a lack of intent defense--is wholly speculative. In
sum, we conclude that the district court's pretrial Rule 404(b) ruling is
not reviewable because the videotape evidence never was admitted into
evidence.

Hall, 312 F.3d at 1258 (citation omitted). Accord, United States v. Ortiz,
857 F.2d 900, 906 (2d Cir. 1988) (district court ruled that ER 404(b)
evidence would be admissible in rebuttal if defendant claimed lack of
intent to distribute drugs or that his possession was consistent with
personal use, the defendant abandoned that theory and the court held that
the reasoning of Luce applied and claim of error was unreviewable) ; United
States v. Johnson, 767 F.2d 1259, 1270 (8th Cir. 1958) (Although Luce was
decided under Fed. R. Evid. 609(a)(1), its logic applies with equal force
to motions under Rule 404).
Mezquia claims Luce is not applicable because its holding is limited
to 'preliminary' rulings that do not reach 'constitutional dimensions'.
Luce, 469 U.S. 42-43. He points to discussion in Luce where the Court
distinguished the facts in Luce from two earlier cases, Brooks v.
Tennessee, 406 U.S. 605, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972), and New
Jersey v. Portash , 440 U.S. 450, 99 S. Ct. 1292, 59 L. Ed. 2d 501 (1979).
In those two cases, even though the defendants had not testified, the Court
reviewed their Fifth Amendment challenges to state court rulings which they
claimed discouraged them from testifying. Luce, 469 U.S. at 42-43. He
also relies on State v. Greve, 67 Wn. App. 166, 169-70, 834 P.2d 656
(1992), in which this court held that if the impeaching evidence flows from
a constitutional violation, the defendant need not testify to preserve the
argument for appeal. So, even though Greve did not testify, this court
allowed him to challenge the trial court's ruling that evidence suppressed
because of a Fourth Amendment violation would be admissible for

impeachment. Greve, 67 Wn. App. at 169.16
Mezquia does not contend that an evidentiary ruling under ER 404(b) is
a ruling that reaches 'constitutional dimensions.'17 Instead, he asserts
that Luce does not apply because the trial court's ruling was not 'in
limine' or preliminary. He points out that the 404(b) issue was not raised
or addressed until after the State rested.
But the ruling in Luce also resulted from a defense motion made during
trial. Nevertheless, the Court characterized it as one in limine. In so
ruling, the Court said:
'In limine' has been defined as '{o}n or at the threshold; at the very
beginning; preliminarily.' Black's Law Dictionary 708 (5th ed. 1979). We
use the term in a broad sense to refer to any motion, whether made before
or during trial, to exclude anticipated prejudicial evidence before the
evidence is actually offered.

Luce 469 U.S. at 40, fn. 2. Here, the defense motion for an advisory
opinion, made before the State sought to introduce the 404(b) evidence,
falls squarely within that definition.
Mezquia also argues that the concerns raised in Luce about the
speculation required to review the admissibility of evidence not actually
admitted at trial are not present in this case. He claims the record
clearly establishes that his decision not to admit the McFarlane evidence
was based on the court's ruling and not on other strategic reasons. He
also argues that this court would not have to speculate about whether the
State would have admitted evidence of the Dececco assault in rebuttal
because the State said it intended to do so.
This argument ignores the focus of a reviewing court's inquiry when an
evidentiary error under ER404(b) is alleged. Such errors are not of
constitutional magnitude and do not result in automatic reversal. Instead,
if an error is found, the reviewing court must then determine, within
reasonable probability, whether the outcome of the trial would have been
different but for the error. State v. Jackson, 102 Wn.2d 689, 695 (1984).
Here, there was no offer of proof of what McFarlane's testimony would
have been.18 Nor do we know whether the State, after hearing the other
suspect testimony, would have changed its mind and decided not to present
the ER 404(b) evidence. It is also possible that, after hearing the other
suspect evidence, the court would have altered its ruling. Additionally,
it is impossible to judge what the impact of Dececco's testimony would have
been, what the defense would have asked her on cross-examination, or what,
if any, limiting instruction would have been given. In sum, without a
complete record, a reviewing court is unable to determine the impact of the
ER 404(b) evidence as required.
The reasoning in Luce applies to the trial court's preliminary ruling
regarding the admissibility of ER 404(b) evidence. Because the evidence
was not admitted, the record is inadequate to support meaningful review of
the claimed error.
FLORIDA DNA SAMPLE
At trial, Mezquia moved to suppress the DNA test results from the cheek
swab obtained in Florida. The trial court denied his motion, applying a
balancing test and concluding that a cheek swab is a minimally intrusive
search. The court further ruled that the evidence was lawfully obtained in
Florida and there was no 'inappropriate contact or assistance between
Washington and Florida.'19
Mezquia asserts that his rights under the Fourth Amendment and Article 1,
sec. 7 of the Washington State Constitution were violated by the DNA sample
obtained in Florida. His argument that Florida's DNA collection statute
violates the Fourth Amendment has been rejected by Florida's appellate
courts. See Smalley v. State, 889 So.2d 100 (Fla. 2004); L.S. v. State,
805 So.2d 1004 (Fla. 2001).20 And the Washington Constitution does not
govern the conduct of officials in other jurisdictions. See State v.
Bradley, 105 Wn.2d 898, 719 P.2d 546 (1986); State v. Gimarelli, 105 Wn.
App. 370, 20 P.3d 430 (2001).
Rather, the admissibility of the DNA sample obtained in another
jurisdiction is governed by the silver platter doctrine under which
evidence that is apparently lawfully and independently obtained in another
jurisdiction is admissible in Washington, even if such evidence if obtained
in Washington would violate Washington law. State v. Brown, 132 Wn.2d 529,
587-88, 940 P.2d 546 (1997); State v. Gwinner, 59 Wn. App. 119, 124-25, 796
P.2d 728 (1990). Evidence is admissible under this doctrine when (1) the
foreign jurisdiction lawfully obtained evidence; and (2) the forum state's
officers did not act as agents or cooperate or assist the foreign
jurisdiction. State v. Fowler, Wn. App. , 111 P.3d 1264, 1265 (2005).
As the trial court correctly ruled, the biological sample was lawfully
obtained in Florida.21
Mezquia argues that the silver platter doctrine does not allow the
admission of the evidence because there was an inappropriate level of
cooperation and assistance between Florida and Washington officials as
participants in a national database. He asks this court to infer from
Washington's participation in the database that 'the government is actively
seeking to circumvent the limitations of state law.'22
In analyzing the issue of inappropriate assistance and cooperation, our
courts have considered whether there was contact between Washington
officials and the forum state's officers before the evidence was obtained.
Courts have also considered whether there was evidence of antecedent
planning, joint operations, or other cooperative investigation. See State
v. Johnson, 75 Wn. App. 692, 700-01, 879 P.2d 984 (1994) (inappropriate
level of cooperation existed where Washington officers accompanied Drug
Enforcement Administration (DEA) agents to defendant's property, took
aerial photographs at DEA's request and turned photographs over to DEA).
Where the officials of the foreign jurisdiction gathered evidence
independently and then contacted Washington police officers, our courts
have concluded there is not an inappropriate level of cooperation. See
i.e. Fowler, 111 P.3d 1264 (Oregon police contacted Tacoma officers and
informed them the defendants were in custody in Oregon); Brown, 132 Wn.2d
at 588-90 (no agency or cooperation where Palm Springs police notified King
County police that defendant had confessed to a killing in Seattle area and
King County police asked Palm Springs police to interview defendant; King
County police did not tell Palm Springs police what to ask or how to
conduct interview); Gwinner, 59 Wn. App. at 121, 125-26 (no agency or other
cooperation where Bellingham police officer relayed information to DEA that
defendant would be trafficking cocaine through Seattle-Tacoma airport; no
evidence that Bellingham officer requested subsequent vehicle search by DEA
or knew search would occur).
Mezquia's claim of inappropriate cooperation between Washington and Florida
because of their participation in the national database is not supported by
authority. We conclude the DNA test results were admissible under the
silver platter doctrine and the trial court properly denied Mezquia's
motion to suppress the evidence
EXCEPTIONAL SENTENCE
Mezquia argues that under Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004), the trial court's imposition of an
exceptional sentence, without submission to a jury, violates his Sixth
Amendment right to a jury trial. In Blakely, the Supreme Court held that
"'{o}ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.'" Blakely, 124
S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000)).
The jury did not determine whether the State proved the factual basis for
Mezquia's exceptional sentence beyond a reasonable doubt. The sentence
therefore, violated his Sixth Amendment rights. Blakely, 124 S. Ct. at
2538. Failure to submit aggravating factors to the jury is not susceptible
to harmless error analysis. State v. Hughes, 154 Wn.2d 118, 148, 110 P.3d
192 (2005).
Mezquia's conviction is affirmed. His exceptional sentence is reversed and
the case is remanded for resentencing.

WE CONCUR:

1 Zapata left on foot. According to T.V., Zapata said she would go across
the street to the cab station and take a cab home.
2 An independent scientist with expertise in DNA analysis also reviewed the
work done at the Washington State Crime Lab. He testified at trial that he
concurred with the analysis.
3 Washington police detectives later took a blood sample from Mezquia and
confirmed the match.
4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
5 Mezquia's standard range sentence was between 240 and 320 months.
6 T.V. testified that Zapata said 'I hate. I hate' without reference to a
specific person. Report of Proceedings (3/10/04) at 853.
7 Clerk's Papers at 50.
8 Report of Proceedings (3/3/04) at 292.
9 Despite the court's ruling, a significant portion of the evidence the
defense wanted to introduce about Jenkins came in during the trial, such as
the status of Zapata's and Jenkins' relationship, her expressions of anger
towards him on the night of her murder, and the fact that she was looking
for him and placed a telephone call to an unknown person while at the Comet
Tavern.
10 DNA analysis ruled out Jenkins as the unknown male in the sample
collected from Zapata's body.
11 At one point, the defense claimed that Jenkins' girlfriend at the time of
the crime no longer supported Jenkins' alibi on the night of the crime.
But pretrial, defense counsel admitted that they had recently interviewed
her and she still said she was with Jenkins on the night Zapata was
murdered.

12 Dececco claimed that the presence of two people in a nearby car allowed
her to escape.
13 Report of Proceedings (3/17/04) at 3.
14 ER 404(b) provides:
'Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.'
15 Report of Proceedings (3/17/04) at 13.
16 Similarly, many courts have held that a defendant need not testify at
trial to appeal a ruling on the admissibility of a confession because
admitting an involuntary confession would violate the Fifth Amendment right
against self incrimination and the Due Process Clause of the Fourteenth
Amendment. Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 2330,
147 L. Ed. 2d 405 (2000); United States v. Chischilly, 30 F.3d 1144, 1150-
51 (9th Cir.1994); Biller v. Lopes, 834 F.2d 41, 43-45 (2d Cir.1987);
United States ex rel. Adkins v. Greer, 791 F.2d 590, 593-94 (7th Cir.1986);
People v. Brown, 42 Cal. App. 4th 461, 49 Cal. Rptr.2d 652, 658-59 (1996).
17 And indeed, long standing authority supports the position that an ER
404(b) ruling does not present constitutional questions. State v, Mason,
Wn. App. , 110 P.3d 245 (2005); State v. Jackson, 102 Wn.2d 689, 695,
689 P.2d 76 (1984); See also United States v. Hall, 312 F.3d 1250, 1258
fn.9.
18 Initially, the defense was unable to find McFarlane and because he was
unavailable, sought to admit his hearsay statements as statements against
penal interest. McFarlane was located during the trial and was interviewed
by the State and the defense. The substance of the interview was not
revealed to the court.
19 Report of Proceedings, (3/3/04) at 291.
20 We have also rejected a Fourth Amendment challenge to the Washington
State DNA collection statute, which is essentially the same in purpose and
substance as the Florida statute. State v. Surge, 122 Wn. App 448, 94 P3d.
345 (2004), review granted, 153 Wn.2d 1008 (2005).
21 Although possession of burglary tools is a gross misdemeanor in
Washington, it is a felony in Florida.
22 Appellant's Brief at 59.
>>