                                                                FILED
                                                           FEBRUARY 28, 2017
                                                         In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III




               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION THREE

    STATE OF WASHINGTON,                         )         No. 31642-4-111
                                                 )
                          Respondent,            )
                                                 )
          V.                                     )         UNPUBLISHED OPINION
                                                 )
    DAVIDE. NICKELS,                             )
                                                 )


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          PENNELL, J. -
                          Appellant.             )

                           David E. Nickels was convicted of first degree murder in Grant

    County. At trial, the court issued jury instructions we have previously deemed structural

    error. State v. Smith, 174 Wn. App. 359,298 P.3d 785, review denied, 178 Wn.2d 1008

    (2013). We find no reason to depart from Smith, and thus conclude the instructions in

1   Mr. Nickels's case were also erroneous and require reversal.
    No. 31642-4-III
    State v. Nickels


               Apart from his claims regarding instructional error, Mr. Nickels raises a number of

    additional challenges to his trial and conviction. Given our order of reversal, most are

    either moot or can be addressed on remand. With respect to the few issues remaining

    appropriate for review, we disagree with Mr. Nickels's contentions.

               Mr. Nickels's conviction is therefore reversed without prejudice to reassert, before

    the trial court, assignments of error not addressed on appeal, and his case is remanded for

    retrial.

                                                 FACTS

               On December 29, 2009, law enforcement officers discovered a man named Sage

    Munro had been shot and killed at his home. Footprints in the area drew attention to Mr.

    Munro's pickup truck as well as a set of handcuffs in the front yard. Also found in the

    area was a .45-caliber shell casing. After some investigation, the police focused their

    attention on Mr. Nickels.

               Law enforcement ran a deoxyribonucleic acid (DNA) analysis of samplings from

    Mr. Munro's pickup, the handcuffs, and the .45-caliber shell casing. An inseparable

    DNA profile mixture of at least three people was discovered on the handcuffs. Mr.

    Nickels was deemed a potential contributor to the mixed DNA profile. All other


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    witnesses or officers tested were excluded as donors. No other forensic evidence was


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     State v. Nickels


     recovered.

            On June 16, 2010, the State charged Mr. Nickels with premeditated murder in the

     first degree. RCW 9A.32.030. Prior to trial, Mr. Nickels filed a motion to suppress his

     DNA evidence, arguing it had been seized without a proper warrant. The motion was

     denied. At trial, the court's "to convict" instruction deviated from the standard

     instruction set forth in the Washington Pattern Jury Instructions. Rather than informing

     the jury it would be their "duty" to return a guilty or not guilty verdict, depending on

     whether the elements had been proved beyond a reasonable doubt, the "to convict"

     instruction stated as follows:

                    If you find from the evidence that each of these elements has been
            proved beyond a reasonable doubt, then you should return a verdict of
            guilty.
                    On the other hand, if, after weighing all of the evidence, you have a
            reasonable doubt as to any one of these elements, then you should return a


ll          verdict of not guilty.

     Clerks Papers (CP) at 3909 (emphasis added). The jury found Mr. Nickels guilty as

     charged.

            After the verdict, Mr. Nickels filed motions requesting a new trial. One of the

     issues raised was the permissive language in the court's "to convict" instruction,

     emphasized above. The trial court declined to grant a new trial without addressing Mr.

     Nickels's claim of instructional error. This appeal followed.

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    No. 31642-4-III
    State v. Nickels


                                            ANALYSIS

    Instructional error regarding the court's "to convict" instruction

           Pursuant to the reasoning in Smith, the use of the word "should" in Mr. Nickels's

    "to convict" instruction constituted structural error. The State nevertheless argues

    reversal is inappropriate because the error was harmless. This argument fails to recognize

    the meaning of structural error. A structural error is one requiring reversal regardless of

    prejudice. A harmless error analysis is inapplicable. Smith, 174 Wn. App. at 368.

    According to the reasoning set forth in Smith, Mr. Nickels's conviction must be reversed.

           Apart from its arguments regarding harmless error, the State also contends Smith

    was wrongly decided and recommends we not follow Smith. We decline this invitation.

    Smith is a decision from this division. It involved a jury instruction issued by the same

    judge who presided over Mr. Nickels' s case. Under the doctrine of stare decisis we will

    reject our prior holdings only on a clear showing that a previously-established rule is

    incorrect and harmful. State v. Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016); Int'!

    Ass 'n of Fire Fighters, Local 46 v. City ofEverett, 146 Wn.2d 29, 37 n.9, 42 P.3d 1265

    (2002). Occasionally, we will reject prior precedent if the legal underpinnings have

    changed or disappeared due to intervening authority. Otton, 185 Wn.2d at 678. That


l   standard is not met here. Mr. Nickels's conviction is therefore reversed without prejudice



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No. 31642-4-III
State v. Nickels


and remanded for retrial.

Seizure of DNA evidence

       Mr. Nickels contends his DNA evidence should have been suppressed because he

was seized pursuant to an illegal "track and trace" (also called a "trap and trace") of his

cell phone and the affidavit supporting the warrant to collect his DNA sample

misrepresented material facts. CP at 1972, 5998. The circumstances pertinent to Mr.

Nickels's suppression argument are as follows:

       In March 2010, Grant County Detective Ryan Rectenwald obtained a toothbrush

allegedly used by Mr. Nickels through a consent search. Test results received on·

April 13, 2010, revealed the DNA profile developed from the toothbrush was a potential

contributor to the mixed DNA found on the handcuffs from the crime scene. Based on

this information, Detective Rectenwald decided he needed to obtain a DNA sample

directly from Mr. Nickels in order to perform a comparison of the DNA left at the scene.

       In an effort to locate Mr. Nickels, Detective Rectenwald applied for and received a

track and trace order from Grant County Superior Court, dated May 3, 2010. Detective

Rectenwald subsequently received information indicating Mr. Nickels was in Montana.

He then elicited the help of Lewis and Clark County (Montana) Detective Michael

Mlekush, who offered to obtain a warrant for Mr. Nickels's DNA. Detective Mlekush's


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    No. 31642-4-111
    State v. Nickels


    warrant application erroneously stated Grant County had previously issued a warrant for

    Mr. Nickels's DNA. However, Detective Mlekush did not base his probable cause

    statement on the alleged prior warrant. Instead, he set forth the status of the Nickels

    investigation, including the DNA test results regarding Mr. Nickels's toothbrush. A

    Montana warrant was obtained on May 6, 2010.

           After securing the warrant, Detective Mlekush began looking for Mr. Nichols. On

    May 10, 2010, Detective Rectenwald relayed information to Detective Mlekush regarding

    the location of Mr. Nichols's cell phone. From what Detective Rectenwald can recall, the

    cell phone location information came from Verizon Wireless, to the Drug Enforcement

    Administration, and then to him. Once Mr. Nickels was located, he was detained and
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    submitted to the court-ordered DNA swabs.

l         Information regarding how Mr. Nickels was located in Montana was somewhat

    unclear. Early in the pretrial discovery process, Detective Rectenwald told the defense

    there was "absolutely no track and trace being done" in Montana, and that the Montana

    police stopped Mr. Nickels during a random traffic stop. CP at 1990. Later, however,

j   detectives Rectenwald and Mlekush, and another Montana deputy sheriff stated Detective


l   Mlekush received updates indicating Mr. Nickels's cell phone had been traced to several

    locations in the Helena area. Detective Rectenwald acknowledged he sent that



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No. 31642-4-III
State v. Nickels


information to Detective Mlekush.

       Subsequent to these events, Detective Mlekush was dismissed from his law

enforcement position for surreptitiously recording a meeting with his superiors. He

pleaded guilty to a criminal offense in January 2012.

       Track and trace warrant

       Under the former RCW 9.73.260(4) (1998), the State could not collect a person's

electronic data without a court order that specified the person, place, or thing to be

searched or seized. Mr. Nickels does not assign error to the issuance of the track and

trace order. Instead, he appears to contend the order was not lawfully served. He points

to contradictory statements by Detective Rectenwald regarding execution and use of the

order as well as statements by another detective that a track and trace order was never

signed. Mr. Nickels's arguments do not demonstrate failure to comply with the statute or

constitution. The record plainly shows an order was obtained prior to law enforcement

efforts to trace Mr. Nickels's cell phone. In addition, billing records confirm that tracking

was accomplished by going through Mr. Nickels's cell phone provider, Verizon Wireless.

The record does not support the conclusion that Mr. Nickels's cell phone was traced

without following applicable legal process.




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No. 31642-4-111
State v. Nickels


       Probable cause to support the DNA search warrant

       Apart from the track and trace order, Mr. Nickels contends the Montana DNA

warrant was invalid because it was based on a misstatement that a prior warrant had been

issued in Washington. A warrant will only be invalidated based on factual inaccuracies if

such inaccuracies are material to the court's probable cause determination. State v.

Chenoweth, 160 Wn.2d 454,462, 158 P.3d 595 (2007). This standard has not been met.

While the DNA warrant application mistakenly represented that a prior warrant had been

obtained in Washington, this information had no bearing on the issue of probable cause.

      Mr. Nickels also contends the warrant was invalid because it was based on

information supplied by Detective Mlekush, who had engaged in official acts of

dishonesty. According to Mr. Nickels, the DNA warrant application should have

included information regarding Detective Mlekush's misconduct because it was relevant

to determining the warrant application's reliability. We are unpersuaded. A warrant

application is reviewed according to information available at the time of issuance, not

what is learned afterward. See Chenoweth, 160 Wn.2d at 476. Nothing in the record

suggests that, at the time he applied for the DNA warrant, Detective Mlekush had

engaged in misconduct. The warrant was issued in May 2010 and Detective Mlekush's

misconduct took place in February 2011. Given this timeline, there was no adverse


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    No. 31642-4-III
    State v. Nickels


    credibility information that could have been disclosed.

           Mr. Nickels claims the trial court should have held a Franks hearing to examine

    whether Detective Mlekush's misconduct extended back to the time of the warrant

    application. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667

    (1978). We disagree. A Franks hearing request must be supported by more than mere

    speculation. Franks, 438 U.S. at 171 ("To mandate an evidentiary hearing, the

    challenger's attack must be more than conclusory and must be supported by more than a

    mere desire to cross-examine"). Mr. Nickels's request does not meet this standard. The

    defense has not proffered any reason to believe Detective Mlekush had engaged in

    impeachable misconduct at the time of the warrant application. The trial court correctly

    declined to conduct a hearing.

    Failure to preserve exculpatory evidence

          Mr. Nickels contends the State mismanaged his case by withholding exculpatory

    evidence and failing to preserve exculpatory text messages and cell phone records.

    During the proceedings in superior court, Mr. Nickels filed a motion to dismiss based on

    government misconduct allegations and due process violations. The motion was denied

    on the basis that Mr. Nickels had not shown prejudice.




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No. 31642-4-III
State v. Nickels


       To succeed on a motion to dismiss based on governmental misconduct under CrR

8.3(b), the defendant must demonstrate prejudice. State v. Michielli, 132 Wn.2d 229,

240, 937 P.2d 587 (1997). Similarly, a motion to dismiss based on a violation of the due

process right to obtain exculpatory evidence requires a showing of materiality. State v.

Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994). Mr. Nickels has not made a

sufficient showing under either standard.

       Because this matter is being remanded for retrial, Mr. Nickels will have ample

time to review and analyze the evidence he claims was improperly withheld. 1 The claim

for dismissal based on untimely disclosure must fail.

      As for Mr. Nickels's allegation regarding unpreserved evidence, the request for

dismissal is premature. On remand, Mr. Nickels will presumably be able to elicit

testimony from witnesses capable of testifying to the contents of the unpreserved text

messages and phone calls. While such testimony may not be as strong as the records

themselves, no prejudice is apparent at this stage of the proceedings. See Wittenbarger,

124 Wn.2d at 475 (the State's failure to preserve exculpatory evidence does not violate

due process if the defendant is able "to obtain comparable evidence by other reasonably




       1
       The evidence in question is a transcript of a recorded interview with an individual
named Matthew Cox.

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    State v. Nickels


    available means"). If, during the presentation of evidence on remand, the circumstances

    suggest Mr. Nickels has, in fact, been prejudiced by the State's failure to preserve

    evidence, relief can be sought from the trial court. 2

    Remaining claims of error

           Mr. Nickels makes additional claims based on jury misconduct, evidentiary errors,

    and judicial bias. Because this case is being remanded for retrial, these claims need not

    be addressed here. The record suggests the evidence on remand is likely to change. In

    addition, because the original trial judge has retired, a new judicial officer will be

    involved. We decline to provide an advisory opinion as to how potential evidentiary

    issues should be handled during retrial. Instead, the parties should submit any evidentiary

    motions and objections to the new trial judge with analysis tailored to the evidence at

    hand. The trial judge will then have the discretion to make appropriate rulings, based on

    the applicable record. Unless the parties agree otherwise, evidentiary rulings made during

    Mr. Nickels's initial trial are not binding on retrial.

                                           CONCLUSION

           Mr. Nickels's conviction is reversed and the matter is remanded for a new trial.




           2
            In the event a motion to dismiss is made based on unpreserved evidence, the trial
    court should assess the merits of the motion de novo.

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     No. 31642-4-111
     State v. Nickels


           A majority of the panel has determined this opinion will not be printed in the

J    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

l    2.06.040.


                                              Pennell, J.
j    WE CONCUR:
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