Friday, August 05, 2016

“Premeditated Murder,” the Laptop and “the Perfect Crime’”

This post examines a recent opinion from the Court of Appeals of Washington:  State v. Rodgers, 2016 WL 4081156. The opinion begins by explaining that “William Rodgers was charged and convicted of the premeditated murder of his wife.”  State v. Rodgers, supra.  You can, if you are interested, read more about the facts in the case in the news stories you can find here, here and here.
The court begins the opinion by explaining that
William Rodgers was married to Sheri Rodgers. Together, they had three children, Nicholas, Natasha, and Jeremiah. In 2011, Rodgers began having an affair with a coworker named Meighan Nichols. Rodgers asked his friend, Mark Thompson, to obtain a second telephone for him so that he could keep in contact with Nichols without Sheri finding out. Thompson reluctantly agreed. Rodgers told some friends that he was going through marital difficulties but intended to repair his marriage with Sheri. Rodgers' relationship with his children and Sheri became strained when they learned about the affair. Friends described Rodgers as distracted and withdrawn during this time. Rodgers' friendships suffered as a result. Friends, family, and coworkers noticed that Sheri began losing weight and had thinning hair. Rodgers and Sheri began sleeping in separate bedrooms. Around this same time, William West met Rodgers and Sheri online. The three of them met twice for sexual intercourse. West found Rodgers `intense’ and decided not to meet the two of them anymore.  Encouraged by Rodgers, Sheri and West continued a physical relationship and maintained contact via e-mail and text messages. 
State v. Rodgers, supra.
The opinion goes on to explain that
[i]n the fall of 2011, Rodgers went to his family physician, Dr. Roger Estep, in `emotional turmoil.’ Rodgers reported having nightmares, difficulty sleeping, depression, and anxiety. Rodgers explained to Estep that he had suffered sexual abuse from his father as a child and had been traumatized by his military service. Estep diagnosed Rodgers with posttraumatic stress disorder (PTSD). Estep prescribed Rodgers a sleep aid and anxiety and nightmare reducing medication. Beginning in October 2011, Rodgers also began visiting mental health counselor Leanne Haywood. Haywood diagnosed Rodgers with PTSD and depression. Rodgers told Haywood that he was cutting himself as a way to relieve his emotional pain. On May 27, 2012, Rodgers and Sheri went to Nate and Jonna Dunham's house for dinner. Nothing unusual happened during the dinner. Nate Dunham opined that Rodgers and Sheri `were happy.’ Rodgers had plans the following day to pick up a barbeque with his friend, Tim Livingston. Sheri had plans to meet a friend at 9:00 a.m. for coffee.
State v. Rodgers, supra.
The opinion then explains that
the coffee date never happened. Instead, on the morning of May 28, 2012, Rodgers called Livingston `very frantic,’ and said that Sheri had fallen and was unresponsive. Livingston went to Rodgers' house and found Rodgers `distraught, frankly, agitated.’ Sheri was lying on the stairs with her feet pointed downward. She was not breathing. Rodgers said he had not performed CPR because he did not want to hurt her. Livingston noticed a small bruise on the left side of Sheri's neck. Rodgers had fresh scratches on his face and head. Rodgers told Livingston that the family dog had scratched him. Sheri's glasses were on the stairs. A pink scuba tank was at the bottom of the stairs. There was a pink mark on the wall next to the stairs. An “irregular shaped” hole was in the drywall near the fourth step. Screws were missing from the center of the handrail on the steps. Sections of the handrail were also loose. Shortly before emergency responders arrived, Rodgers' next door neighbor, Jan Thorton, opened her window. Thorton heard someone at the front of Rodgers' house sob, and say, `I didn't mean to hurt her.’ Rodgers was hyperventilating when emergency responders arrived at the house. Medics noticed bruising on Sheri's neck and left eye. Rodgers had scratches on his face and head. Paramedic Yvonne North and Fire Battalion Chief Mike Voss observed Rodgers clawing at, and rubbing gravel on, his face and head. Voss opined that Rodgers was trying to cover up combat wounds. Other friends arrived at Rodgers' house in the hours after the incident. Rodgers told them that he was helping Sheri move items the day of the incident and that Sheri was at the bottom of the stairs when he returned after temporarily leaving the room. Rodgers believed that Sheri had fallen down the stairs. Rodgers told Natasha and friends that he had been scratched by the dog.
State v. Rodgers, supra.
The court then pointed out that Rodgers and Natasha began
making funeral arrangements the same day. Rex Watt, the funeral director who arranged Sheri's disposition, met with Rodgers a few days after Sheri's death. Watt noted that Rodgers had fresh scratches on his face and head. Rodgers expressed a desire to cremate Sheri's remains. Rodgers also asked about the possibility of arranging a viewing so that his two sons could see Sheri. Watt had to determine whether the body was `viewable.’ After the embalmer suggested that Sheri's body not be viewed, Watt looked at it himself. Watt observed bruising on her head, eyes, and cheeks. When Watt told Rodgers that a viewing would not be a good idea, Rodgers asked why Sheri did not appear black and blue at home. Rodgers also asked whether there was a mark on Sheri's neck. In response, Watt looked at Sheri's neck, where he observed what appeared to be a handprint. Watt later shared this information with the police. Rodgers met with police and also explained to them that he was helping Sheri move items on the day of the incident. Sheri was at the bottom of the stairs when Rodgers returned after temporarily leaving the room. Police obtained a DNA sample from Rodgers and permission from him to search the house.
State v. Rodgers, supra.
Finally, the opinion goes on to explain that an
autopsy was done on Sheri the day after the incident. Forensic pathologist Daniel Selove opined that Sheri had died of strangulation. Sheri had marks on her front left neck and a fractured larynx. Petechia was also observed in Sheri's upper right eye. Selove believed these injuries to be inconsistent with those that a person would suffer from falling down the stairs. Selove ruled out positional asphyxiation as a possible cause of death. Selove also opined that Sheri suffered non-deadly injuries consistent with falling down the stairs. Selove opined that injuries to Sheri's right hand, wrist, and forearm were consistent with defensive wounds. Police concluded that blood underneath one of Sheri's right fingernails matched Rodgers' DNA profile and the match was not expected to occur more frequently than one in `58 six trillion.’ Testing of Sheri's left hand showed the presence of male DNA but the amount was insufficient for testing. There was no physical damage to Sheri's fingernails. Police took nail clippings from Rodgers' dog three days after the incident. Testing revealed no blood on the dog nail clippings.
State v. Rodgers, supra.
The opinion then takes up the role digital evidence would play in the case, noting that
Detective Jared Ely seized thumb drives and memory disks from Rodgers' house. Ely also seized a laptop computer from a dresser drawer in the master bedroom. He observed the same laptop in the kitchen of the house on the day of the incident. The name of the laptop was `Bill PC’ and the laptop software was registered to `Bill.’The laptop contained Google Internet searches and e-mails to Nichols.  Time stamps on the e-mails to Nichols matched time stamps indicating when Rodgers' username was logged in on the computer. A website that included `25 methods for killing with your bare hands’ was accessed on May 5, 2012. Later activity at the same website included `ten tips to commit the perfect crime.’ This website was accessed for about seven minutes. Ely did not have the full Internet history for the laptop. Specific searches were not performed for `ten tips to commit the perfect crime,’ and `25 methods for killing with your bare hands.’ Rather, Internet `cookies’ for the websites were placed on the laptop. Ely opined that the `cookies’ would not exist if the website had not actually been clicked on. Between May 20 and 27, 2012, Internet searches were conducted for `how to break a [chicken's] neck,’ `how dangerous is it to fall down stairs,’ and `is it really possible to break someone's neck by twisting it with my hands like in the movies?’ Ely opined that an Internet search for `how to break a neck’ was completed. Such a search was not contained in the laptop's Internet search history and Ely could not therefore determine an exact time frame in which such a search was conducted. 
State v. Rodgers, supra.
The court goes on to explain that 
Information security officer, Leslie Trout, also examined Rodgers' laptop and disputed some of Ely's conclusions. Like Ely, Trout concluded that specific searches were not performed for `ten tips to commit the perfect crime,’ and `25 methods for killing with your bare hands.’ Rather, Internet `cookies’ for the websites were placed on the laptop. Unlike Ely, however, Trout opined that the `cookies’ would be placed on the laptop even if the website link was not actually clicked on. Trout found no evidence that a search was completed for `top ten prison survival tips.’ Trout opined that a search was completed for `how to break a “N.”’ Google's function auto-completed `N’ to include the word neck, and a link containing that search string was then clicked on. Trout concluded, `there wasn't sufficient evidence to show that the user searched for how to break a neck per se as much as it was auto-completed or how dangerous it is to fall down the stairs, but there were search strings that were part of that.’ Trout found no data files on the laptop that corroborated that either of the searches were clicked on and viewed. There was also evidence of e-mails exchanged between Rodgers and Nichols. In one e-mail, Rodgers mentioned wanting to hit Sheri in the face.  In another e-mail, Rodgers told Nichols he would give Sheri sleeping pills to avoid being sexually intimate with her. In late May 2012, Rodgers e-mailed Nichols describing how upset he was that Sheri blamed him for the breakdown of his family's relationship. Shortly thereafter, someone allegedly conducted the Internet search for, `is it really possible to break someone's neck by twisting it with my hands like in the movies?’
State v. Rodgers, supra.
The opinion goes on to explain that the
Skagit County prosecutor charged Rodgers by amended information with one count of first degree premeditated murder. A jury found Rodgers guilty as charged. The trial court sentenced Rodgers to 320 months of imprisonment. Rodgers timely appealed.
State v. Rodgers, supra.
The Court of Appeals went on to explain that Rodgers argued that
his right to a fair trial was violated. This is so, he asserts, because improper opinion testimony on guilt was presented at his trial. We disagree. Opinions on guilt are generally improper whether made directly or by inference.  State v. Quaale, 182 Wn2d 191, 199, 340 P.3d 213 (2014). `Impermissible opinion testimony regarding the defendant's guilt may be reversible error because such evidence violates the defendant's constitutional right to a jury trial, which includes the independent determination of the facts by the jury.’ Quaale, 182 Wn.2d at 199.  Whether testimony is an impermissible opinion about guilt depends upon the circumstances. State v. Cruz, 77 Wn. App. 811, 814-15, 894 P.2d 573 (1995); City of Seattle v. Heatley, 70 Wn. App. 573, 570, 854 P.2d 650 (1993).      In determining whether statements are impermissible opinion testimony, the trial court will consider the circumstances of the case, including: “(1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) `the other evidence before the trier of fact.” State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008) (internal quotation marks omitted) (quoting State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001)). `The point is to avoid having witnesses tell the jury what result to reach.’ State v. King, 135 Wn. App. 662, 673, 145 P.3d 1224 (2006).     A decision involving the admission of opinion testimony lies within the sound discretion of the trial court and will not be reversed unless abuse of discretion is shown. City of Seattle v. Heatley, supra.  Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).     
State v. Rodgers, supra.  For more on the use of opinion testimony, check out this Wikipedia entry.
On appeal, Rodgers argued that the trial court judge incorrectly allowed the prosecution to present “improper opinion testimony by Natasha, Nicholas, Thomson, and Nichols.” 
State v. Rodgers, supra.  The Court of Appeals outlined, and analyzed the opinion testimony attributed to each witness in this order. State v. Rodgers, supra. 
As to Natasha’s testimony, the Court of Appeals explained that
[p]rior to trial, Rodgers sought to exclude evidence that, when he told Natasha of her mother's death over the telephone, she responded, `What? Were you guys, were you guys fighting?’ and `Were, well if you guys weren't fighting, what happened?’ Natasha's statements were recorded because Rodgers was being interviewed at the police station at the time of the call. Rodgers objected both to the recording being played for the jury and to Natasha testifying to her reaction upon hearing the news of her mother's death. Defense counsel argued that the statements were more prejudicial than probative under [Washington Evidence Rule 403] because there was no history of physical violence or domestic violence between Rodgers and Sheri. The State maintained that `fighting’ could include arguing and that any confusion about what Natasha meant could be dealt with on cross-examination. The trial court denied the motion to exclude. Thereafter, the recording was played for the jury, and Natasha testified that, when Rodgers told her that her mother had died in an accident, `the very, very, very first thought that came into my gut and out of my mouth was: Were you guys fighting?” Natasha explained that there was never physical or domestic violence between her parents, but there were `screaming matches.’ Natasha further elaborated, `[a]nd when he told me that she fell down the stairs—and if they were fighting like I literally thought that he could have just pushed her down the stairs. Why would she slip?’
State v. Rodgers, supra. 
The court then explained that, at Rodgers’ trial, his son, Nicholas,
also testified about the first conversation that he had with his father after his mother's death. The following exchange transpired between Nicholas and the prosecutor. Q: When did you find out that your mother had passed away?A: So I was with my unit in Korea. It was Memorial Day weekend. I received a Red Cross message. And the only thing it said is that I needed to get in touch with my family at home. I had no information. I finally called home. And I talked to my dad. And I knew immediately that—I said: Dad what happened? And he said: You just need to get home. So in my heart the way that he told me—Q: Hold on. He told you you needed to get home?A: RightQ: Did you ask him anything further?A: I was thinking about what was going on at home. I said: What happened?Q: Did he respond to that?A: No. He just said: You need to get home. Your mother has been in an accident. The way that he told me I knew in my gut, I wanted to say: Dad, what did you do? Because of his tone, I knew if it truly was a car accident, a spare [sic] of the moment thing, I believe he would lay it all out there for me. He wouldn't mask it in some way or form. Nicholas also described speaking with his parents by telephone the night before Sheri's death. He testified as follows.Q: What did your dad say?A: It made me feel weird, but he laid out the entire next day to me. Oh, you know what we just prepaid for our new barbecue, and I'm going to pick it up tomorrow. I'm going to make a meal for your mother. And it's going to be a really nice Sunday.Q: Let me stop you there. You said it was weird. What about that was weird to you?A: It was the way he was telling me his schedule. That wasn't something that he did all the time. Like I said, our relationship was kind of strange throughout the whole year. This was out of the blue. It felt weird. At the same time I was thinking, okay, alright, alright. It made me feel weird. But after the fact, it still makes me feel weird. Because to me inside my heart it makes me feel like there was an agenda there ultimately; that he was trying to pick his alibi or something like that. That's just how it made me feel.
State v. Rodgers, supra. 
The court then quoted the testimony from Thompson to which Rodgers also objected:
Thompson was asked during direct examination if he noticed anything about Rodgers' behavior after arriving at the house after Sheri's death:Q: Did you notice anything strange about how he [Rodgers] was acting at any point?A: Well, at one point he stared at me, gave me this look that made me doubt what had happened.Q: Why do you say that?A: It was just, I don't know how to describe it. It was a look of I knew in my head what did you do, Bill?Q: That was what you thought?A: That's what I thought.
State v. Rodgers, supra. 
The opinion went on to explain that
[a]fter the witnesses in question concluded their testimony, defense counsel sought to exclude future witnesses from testifying about `gut feels’ that Rodgers was responsible for Sheri's death. Defense counsel noted that, `[w]hether or not my client did anything wrong is a question reserved for the jury, not the individual witnesses.’ The trial court responded, `I've kind of been waiting for this issue to be raised. Because I had wondered—I mean to me, depending on how it's phrased, it does invade the province of the jury,’ and asked the State to articulate why such testimony was relevant. The State maintained that the witnesses had properly testified to `their sensory reaction to a piece of information.’ It noted that many witnesses had known Rodgers for years and were entitled to express their opinions based on that knowledge. Nevertheless, the State offered to `do [its] best to kind of stay away from that,’ as long as the defense agreed to do the same. The trial court concurred, stating, `[c]ertainly speculation should not be encouraged.’ None of the purported opinion testimony forming the basis of Rodgers' appellate claim occurred thereafter. Rodgers asserts that the witness testimony highlighted above constituted improper opinions on guilt. However, to the contrary, examining the statements in the context of the issues remaining after Rodgers admitted that he had, in fact, killed Sheri, it is clear that the testimony at issue did not constitute improper opinion testimony.
State v. Rodgers, supra.  

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