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Abuse of Discretion -




USCA NO: 09-35239
USDC NO: 07-1315-JCC

COMES NOW the Appellant in proper person and respectfully requests this Honorable Court grant a Certificate of Appealability on the issues he raised in the District Court based on these additional facts of the case that were not included in his original request. (DK 93 Request for COA) Appellant was granted IFP to appeal on March 13, 2009, and his Request for Counsel to Appeal was denied February 20, 2009. (DK 96). [1]
Pursuant to FRAP 22-1(d), Appellant is requesting this Court to review his issues he presented to the District Court in his initial request for a COA (DK 93), with the now included brief Procedural History of his case that took place in the trial court, along with this comprehensive Statement of the Facts and attached Appendix of Facts that support his entitlement to relief on ISSUES-I, IA, IB, II, III, IV, V, VI and VII of his Application for a COA from the District Court. (DK 93).
Appellant attempted to present the defense that he had been set up for this crime by Sgt. Peter Lindberg and Detective Tobin Ruxton so they could become Skagit County’s first police officers to obtain a three-strike conviction. 10/3/01 p. 15-17. This was to regain their credibility which had been eroded by numerous citizens’ complaints of sexual misconduct, drafting of false inculpatory facts in their police reports, official reprimands for misconduct and drinking. 10/18/01 p. 11-26 (EP 819-834).
The trial court entered orders protecting these officers past actions of wrongdoing to stop Appellant from investigating and accessing this vital impeachment evidence because it claimed there was only a “mere possibility” that this information existed. 10/19/01 p. 21 (EP 829). Then went on to stymie and frustrate all attempts he made to prove his innocence by accessing the City of Mount Vernon Police Department’s Policy and Procedure Protocols that described the proper way and time period to collect and display a photomontage to the witnesses of a crime, collect and process arson evidence, execute a search warrant and interview witnesses, and treat a person who they claimed was mentally impaired: all to show that these protocols were not followed by the officers so they could set him up for this crime. 10/3/01 p. 18-22.
The court then held an in-camera review of these protocols, despite no privilege prohibiting him from accessing them, and refused to release them claiming that there was “nothing relevant” in the policies that would benefit him. 10/3/01 p. 18-22. Despite the admission of the Chief of Police and prosecutor Eric Pederson that several of them existed. 10/3/01 p. 17-23 (EP 777, 807-813.
Because Appellant was representing himself pro se, the court continued to deny him his constitutional rights and abuse him with impunity.
The Skagit County Prosecutors did not want him to represent himself again, and called the prison and told them not to let him take his legal papers with him upon his return, and he’d be reconvicted “and returned back to prison.” The Superintendent of the prison informed him of this by letter. Appellant refused to get on the transfer bus without his legal papers; they videotaped his refusal, with the tape going blank for several minutes where they edited out his request for his legal papers. He was forcibly extracted, beaten and poked with a cattle prod numerous times. A copy of the tape shows him calmly sitting politely requesting his legal papers, and non-combative. Then being savagely beaten. This video was filed into the court record. 8/23/01 p. 20-21.
During the August 29, 2001 hearing to suppress the ruined gasoline evidence, prosecutor Thomas Verge and Eric Pederson mislead the court when they claimed that the ruined evidence:
In other words, they (Officer Lindberg and Detective Ruxton) didn’t know actually what it had on it (if gasoline was on the items) so it doesn’t fall under the exculpatory standard. No showing by the defense of bad faith with respect to the preservation of those particular items. NO showing that Detective Ruxton failed to follow any particular procedures that were required of him, and therefore, the defendant fails to meet its burden on this issue. p. 65-66.
These claims and the trial court’s agreement with same, totally ignore the officers’ February 4, 1996 Arrest Affidavit and all following related Incident Reports where they claimed that Appellant “smelled of some type of oil product . . . smells strongly of petroleum.” (EP 581, 583, 586, 587, 591). They claimed they had no idea what was on the items to defeat the motion to suppress, then turned around at trial and claimed the items were saturated with gasoline vapors. And were allowed to do so because Appellant was representing himself pro se.
Dozens of other instances exist throughout the case where the court allowed the two police officers to lie and manipulate the evidence.
Appellant was arrested February 4, 1996 and charged with First and Second Degree Arson in violation of RCW 9A.42.020(1)(a)(b) and (c), for setting fire to the doormat outside room 119 of the West Winds Motel in Mount Vernon, Washington. During trial the State claimed violations of the three alternative means of committing the crime, which then required sufficient proof be adduced to support each of the alternative means.
This was Appellant’s second trial for these charges. Initially his conviction was reversed because of a conflict of interest involving standby counsel. See State v. McDonald, 143 Wn. 2d 506, 508 (2001). Mr. McDonald was compelled to represent himself during both his jury trials because the only attorney the State would appoint to represent him was conflict counsel Gary Gaer. Mr. Gaer even claimed that the County could not locate any attorney who would represent Mr. McDonald in the surrounding three counties. 8/29/01 p. 4, 111-117. No one would get involved because they knew what Skagit County was up to, which they did not want to be a part of.
During the first trial, Mr. McDonald repeatedly petitioned the court for the appointment of an arson investigator to examine the surface of the motel room door which they claimed had been on fire. Each of his requests was denied under the auspices of the State of Washington’s Whitebread Doctrine of Law. (EP 406-408 Orders of Denial) The Washington State Supreme Court characterized the “crime” as a “doormat fire that discolored the door.” Id. McDonald, 143 Wn. 2d at 508.
The original prosecutor, Corbin Volluz, offered Mr. McDonald four plea deals, three in writing, ranging from 14 months to 58 months to 10 years back to 58 months. During the first trial, the court reminded Mr. McDonald that he was being tried in Washington State, and because of this he was not defined as being in “prisoner status” and only entitled to two rights under the Constitution.
We just finished a great judges’ conference over in Wenatchee, and Mr. Whitebread, if you have ever had the opportunity to hear Mr. Whitebread talk about the Constitution, prisoners now have two rights, the right to go to jail and the right to stay there until their term is up. (EP 369)
During Appellant’s second jury trial, the court hung a large banner across the courtroom that read the same thing, which prohibited him from being able to make objections and having it on record which the stenographer could record.
Also, during the second jury trial, the court and the jury held a daily bake-off where the jurors would bake homemade cookies for the judge: “Thank you for the cookies, John, excellent.” 1/28/02 p. 127; VRP 701. And the Judge would return the favor, hoping to curry favor with the jurors: “How is the Kahlua Cake? Helga (court clerk) doesn’t think she’s done her job unless her jurors weigh five pounds more than when they started.” VRP 820.
The Court continued to curry favor with the jurors by asking them to please “remember to save me some cupcakes.” VRP 603. After all this baking the jurors felt obligated to serve the main course to the Court for dessert: Mr. McDonald. All objections concerning these exchanges have been eviscerated from the record.
Mrs. Edith Clarke was staying next door to Appellant in room 119 at the West Winds Motel. She observed Appellant arrive by cab and check in around 9:30 p.m., February 3, 1996. About half an hour later, he knocked on her door and asked if she and her husband were fighting. She pointed to a fight taking place in the parking lot next door at Max Dales Lounge, less than 30 feet away. VRP 56-57; 936-937. She testified that Mr. McDonald appeared “well dressed, clean shaven, neat, tidy, polite and well-groomed the first time” she saw him. VRP 59, 86. The alleged “second time” he appeared different: “He didn’t look the same . . . he had also changed what he was wearing.” VRP 66, 90. (Appellant claimed it was Tommy she saw the second time). She also testified that she heard Appellant outside of her room talking about starting a fire, but did not think to call 911 because she did not know “what he was going to be burning.” When she opened her door, her mat was on fire and flames were on her door. Her doormat had been moved several feet from the door, and she assumed that he moved it. VRP 69, 87, 166.
Throughout the evening she claimed his door was opening and closing and slamming shut, but she did not get up to look out her window to see who it was. This was continuously “from 10:00 p.m. until 2:00 a.m.” VRP 82-83. She assumed it was Appellant making “this racket.” The TV and radio were also blasting. After his first visit at around 10:00 p.m., he never returned complaining she was making noise at 11:00 p.m. and at 1:30 p.m. Nor had she told Detective Ruxton that he had. VRP 80-81. Yet Detective Ruxton falsely included these facts in his police reports to inculpate Appellant in order to go along with his theory of the crime that he had burned her doormat because of spite, revenge or grudge. VRP 544, 775-756.
Six years later, she came to court and testified to a whole new set of inculpatory facts, none of which she initially attested to in 1996. Specifically, this time she claimed Mr. McDonald was “talking to himself outside her room and next door inside his room,” instead of her initially claiming that she “had heard other people’s voices over in his room and outside her door” the way her Sworn Police Report of February 4, 1996 stated she had, and 1996 trial testimony. Appellant attempted to impeach her using her prior inconsistent trial testimony and she claimed she could “no longer remember” the contents of her Sworn Police Report, and was denied by the trial court, VRP 63, 81-83, 93.
The trial court facilitated this charade by refusing to allow the admission of her Sworn Police Report into evidence so the jury could see and read it for themselves. (Trial Exhibit #41). Her oral reply to the different version of facts was stated in no uncertain terms: “So.” VRP 94.
February 7, 1996 she had been interviewed by the Public Defender’s investigator, Kevin Steward. During the interview she told him Appellant “seemed nice enough,” and she “never saw him start the fire.” She stated she had “heard two voices outside her room the night of the fire, and to be honest she was not sure it was Mr. McDonald’s voice she heard outside her room talking about starting the fire.” VRP 915-918 (EP 649-686 Interview Summaries). She admitted to confiding to the motel’s manager, Mrs. Stevens, that she had been positive she heard more than one person’s voice over in Mr. McDonald’s room during the evening, and had asked her how many other people were staying with him. VRP 923.
She also stated there were no cigarette butts in front of her room when she went to bed. A large color photograph of the area taken the following morning shows many different brands of cigarette butts in front of her room, where Mr. McDonald and his guests had gone outside his room to smoke that evening, as agreed with the motel’s manager, Mrs. Stevens. VRP 382. A large color photograph also shows his brand of cigarettes, Camel Filters, on his table top inside his room. VRP 73, 665, 939. (Trial Exhibit 6). Mrs. Clarke also claimed she did not call 911 when she heard the people outside her room talking about lighting a fire, “because I did not know what they were going to be burning.” VRP 92.
Through compound questioning by the prosecutor, she testified flames were on her door when she opened it, which had gone inside her room. As soon as she opened her door, she heard the fire truck sirens. VRP 65-68, 77. Appellant’s Reply Brief, Division One, pages 18-23.
First on the scene to interview her was Arson Investigator Mark Malone and Fire Chief Dennis Hofstead. During questioning he stated she never made the claim to him that her door had been on fire. After his investigating of the crime scene, his official arson report does not state that the motel room door was ever on fire. He admitted he never put this fact in his report, which is the entire reason Appellant has a mandatory life sentence for burning the motel room door, allegedly. VRP 545-547. (EP 556-568 Arson Report) When Sergeant Peter Lindberg arrived on the scene, Mrs. Clarke ran up to him and demanded that he “arrest that asshole in room 1220. He has kept me awake all night.” VRP 86.
She went on to admit that she had called the prison trying to reach Mr. McDonald and spoke to his classification officer, leaving word that she “would change her story if he would buy her a new van.” When questioned about this her response was: “I might have . . . so . . . you are arrogant and I’m not going to change my story.” VRP 94-97.
Joseph Clarke, her son, stated when he saw Appellant arrive by cab around 9:30 p.m., he appeared to be well dressed and neat in appearance. VRP 111. That he never heard any noise coming from his room that evening. And when the fire happened, he did not even bother to get out of bed. VRP 109-114. (Proving the inconsequentiality of the incident) His father, Douglas Clarke, had since gone blind. He testified he was not woken up by any loud noises coming from Mr. McDonald’s room. VRP 125. And could not remember any of his prior trial testimony, or read it either because he had gone blind. The Court refused to allow Appellant to read it to him, and prohibited any type of impeachment from taking place. All his exculpatory trial testimony from 1996 was therefore lost. VRP 120-133.
Sergeant Peter Lindberg was the first police officer to arrive on the scene, while both Arson Investigator Mark Malone and Fire Chief Dennis Hofstead were inside Appellant’s room investigating and looking for collateral fires. After speaking with Mrs. Clarke and obtaining his identification and calling it in for a background check, he ordered both the fire investigators to stop their investigation of Appellant’s room, and sent them on superficial errands not in accordance with their job descriptions. VRP 192. When questioned about this he replied:
I’m a first responder . . . an arson case is an up level case. It is more than a patrol officer would do. That’s why I made the initial contact, gathered information from the witnesses, made an arrest of the subject, tried to control the crime scene, shut it down, that’s when you call in an investigator . . . I didn’t want them [Malone and Hofstead] to contaminate the crime scene. VRP 194, 196.
After he removed the two best experts and “shut down” their investigation of Appellant’s room, he started to question Appellant about the fire. Once he gained access to his room, this time with the Appellant being alone, all of a sudden he “smelled gasoline” on him, inside his room and in his bathroom, and placed him under arrest. He claimed Appellant told him he had been “washing tools” in a bucket that was inside his bathtub, which he claimed was full of gasoline. A sample of the bucket’s contents was obtained by him and then not processed after he called the forensic chemist Eric Neilson and told him not to process it.
Sgt. Lindberg’s Affidavit of Probably Cause to arrest stated that he only “thought” Mr. McDonald smelled like gasoline, and it totally omitted any references to detection of gasoline inside his room, in his bathroom and on or in the bucket. VRP 168-170. When he arrived he found that Mrs. Clarke’s door mat had been moved several feet from her door. VRP 160, 178, 186. Appellant repeatedly requested to provide a tape recorded statement to Sgt. Lindberg in front of Officer Gregg Booth. Yet Sgt. Lindberg refused. 190-192.
Sgt. Lindberg claimed to have “been a police officer for over 13 years with a variety of training too numerous to mention, actually over 2000 hours.” VRP 134. Over this period of time, he allegedly had received no arson evidence collection training. He admitted to watching Arson Investigator Malone collecting and packaging his arson evidence in sealed containers, yet with all his alleged prior police training, he claimed he did not even think to ask investigator Malone for his assistance, or why his evidence he was collecting was being packaged in sealed containers. VRP 208-211 (Appellant claimed that this was in furtherance of the conspiracy to falsely inculpate him) Officer Lindberg went on to admit that no exigent circumstances were present warranting the removal of the two best most experienced arson investigators from inside Mr. McDonald’s room. VRP 192.
State Arson Investigator Malone testified he spoke with Appellant about the fire, and had requested his permission to enter his room to search for collateral fires. Which the Appellant readily provided. VRP 556, 736-740. He stated that during their conversation Appellant appeared perfectly normal, and was not mentally impaired and complaining that aliens and Martians were after him. Nor did he smell like gasoline. VRP 542.
Sandra Early, the 911 dispatch operator, testified that Appellant was perfectly normal when he called to report the doormat fire, “was very straight forward, not talking to himself, babbling, delusional or anything like that.” VRP 409. The motel’s manager, Mrs. Patricia Stevens testified that Appellant was normal and not complaining that aliens and Martians were after him during his 9:30 p.m. check in February 3, 1996, or during their 3:30 a.m. meeting when he locked his key inside his room. Nor did he have the odor of gasoline on him. VRP 370, 379-394.
Roy Giles, M.D., Appellant’s employer, testified Mr. McDonald was not intoxicated when he spoke with him when he was leaving the house, nor was he complaining that aliens and Martians were chasing him, and that was why he was leaving. VRP 095-909. Finally, Officer Gregg Booth was present guarding Appellant when he was being interviewed by Sgt. Lindberg, and he attested Mr. McDonald was not complaining that aliens and Martians were after him, was speaking perfectly normal during the interview process at 5:30 a.m., and did not have the odor of gasoline on him during the 7 minutes they were together several feet from each other. VRP 223, 226-229, 994; 1/16/02 p. 27-31.
These facts from the State witnesses lend credence to Appellant’s claims that there were two different people involved and present that night the way he told the officers and that the other person, Tommy, looked different and acted differently than Mr. McDonald did that evening. That is why neither officer obtained a tape recorded statement from Appellant about these facts.
All the evidence that Arson Investigator Malone collected that may have conclusively established the motel room door had never been on fire was not requested to be processed and tested by Detective Ruxton. Arson Investigator Malone “assumed it would be and that is why I collected it.” VRP 555. (Appellant suggested this as well supported his conspiracy claim)
Investigator Malone further testified that he could have collected core samples from the door where the State claimed it had been on fire to conclusively establish whether or not it had been on fire. But chose not to. VRP 558-559. All Appellant’s requests for the appointment of an arson investigator to investigate the surface of the door were denied, which then allowed the State to come to trial and claim whatever they wanted to about the surface being on fire, and Appellant left with no way to disprove it by scientific testing procedures. (EP 406-408)
Investigator Malone initially interviewed Mrs. Clarke concerning the fire. During the interview, she never mentioned that her door had been on fire. In fact, his official report of the incident does not mention that the surface of the door had ever been on fire. VRP 546-547. (EP 556-568 Arson Report) It was only after he filed a 42 U.S.C. §1983 Civil Suit and refused numerous plea deals provided in writing, except for one, ranging form 14 months to 10 years, that all of a sudden the door had been on fire. No Loss-Restitution statement was filed requesting payment for damages to the door. Sgt. Lindberg stated that he was “not surprised.” VRP 175.
Contrary to what Sgt. Lindberg claimed, Arson Investigator Malone stated he was not there “to contaminate the crime scene,” but to “investigate the origin and cause of the fire, looking for the big picture in a methodical manner” VRP 414-515. None of which Sgt. Lindberg wanted to occur as shown by his actions of removal of both the highly trained fire investigators. Highly trained compared to his alleged total lack of any arson evidence investigation or collection of evidence techniques.
Investigator Malone then explained he was on the scene and available to assist both Sgt. Lindberg and Detective Ruxton in collecting and packaging the most critical arson evidence: that which directly connected Mr. McDonald to the crime. But strangely, neither officer requested his help. VRP 1980199, 815-816, 826-828.
Malone also testified that both officers had been present and had watched him collecting and packaging his arson evidence in sealed containers but that neither had asked why or “seemed curious.” VRP 1980199, 560-561, 815. Even after Officer Gregg Booth had handed them arson evidence that Investigator Malone had collected in sealed containers; before either had begun to collect any evidence from Appellant. VRP 223.
Despite this overwhelming body of evidence present before their eyes, Sgt. Lindberg and Detective Ruxton chose to ignore it, and packaged all their evidence they claimed at trial was saturated with gasoline vapors, “incorrectly.” Which just so happens to be the only evidence that physically connected Appellant with the gasoline. VRP 173-175, 716-720, 743, 748, 826.
Arson Investigator Malone was the first to interview Mrs. Clarke. She told him that she had heard “other people’s voices outside her room, and when she opened her door, her doormat was on fire.” VRP 547. He claimed his arson report was “computer generated” and that was why it listed another person being involved in the crime, and denied that Appellant told him Tommy had lit the doormat on fire. VRP 541-542. He claimed the fire on the door had “become a smoldering type fire that was beginning to burn.” VRP 518.
Appellant’s several defense witnesses attested to the credibility of the State’s witnesses. Roy Giles, M.D., Appellant’s employer, attested that Detective Ruxton attempted to have him file false criminal charges against Appellant for theft. VRP 911. He claimed he was “outraged that a police officer would attempt to do this.” VRP 907-909. He further testified that Detective Ruxton drafted false information into his police reports that he had not said about Mr. McDonald having “bouts of delusions and outbursts of anger.” VRP 765, 801. The Court prohibited him from providing character and reputation evidence favorable to Mr. McDonald, based when he assisted a judge and his daughter who had been thrown from their horses while riding on Dr. Giles’ estate. VRP 873.
Fire Chief Dennis Hofstead attested Mr. McDonald appeared normal and allowed him and Investigator Malone inside his room to search for collateral fires. While inside his room, he had not detected the odor of gasoline or detected it on Mr. McDonald. And he knew very well what gasoline smelled like from investigating other crime scenes. The next thing he remembered was Sgt. Lindberg coming up to him and asking him to stop his investigation, and sending him to perform other errands. VRP 736-740.
Kevin Steward testified for the defense that he had interviewed the State witnesses several days after the incident. He provided a sworn Affidavit attesting to the truthfulness of his Interview Summaries. (EP 412-413 Declaration; EP 649-686 Interview Summaries)
Mrs. Clarke informed him during her interview that Appellant had not threatened her in any way, and seemed nice enough. She watched him arrive by cab and noticed he was dressed nicely and clean shaven. She confided to him that “to be honest she was not sure she heard Mr. McDonald’s voice outside her room talking about starting a fire.” VRP 916-918. (EP 653) But only “assumed he had lit the fire because he was standing there smoking a cigarette outside her room when she opened her door.” (EP 656) She also claimed she “could have sworn she heard two people talking inside her room that evening.” VRP 919. Because of this, “she asked manager Stevens how many people were staying in Mr. McDonald’s room.” VRP 919-920. (EP 658)
Mrs. Stevens told him that there would be “no cost to repair the motel room door.” (EP 649) All she had to do was to “clean it, wash it and scrub it down and paint it after the season was over.” (EP 656)
These facts were essential for the jury to learn to support his theory of defense, and to counteract the State witness’s alleged inability to remember any vital exculpatory facts. And further to show that Mrs. Clarke was not a credible witness. Yet the trial court prohibited these facts from being presented to the jury by Mr. Steward which allowed the State to present its theory that Appellant was “home alone” and lit the mat all by himself. VRP 866-870.
Four months after the incident, gas station attendant Lester McFarland and Richard Thuran were shown Appellant’s photograph and neither made an identification. Detective Ruxton also showed both a photograph of informant Barry Campbell, and neither identified him as being the driver who brought the perpetrator to the gas station to purchase gasoline allegedly used to start the fire. VRP 804-805. (EP 567-568 Police Reports) According to Detective Ruxton, “overall” the descriptions of the perpetrator did not match that of Mr. McDonald. VRP 806.
Mr. McFarland had seen this individual’s face twice, both times under bright quartz lighting for ten to fifteen minutes from a distance of two to three feet away. He also saw that the man had cut and bleeding knuckles. VRP 884-901. When Mr. McDonald was arrested one hour later, he had no injuries on either of his hands according to Sgt. Lindberg who had swabbed his hand taking petroleum samples. VRP 190-200.
The other gas station attendant, Richard Thuran, had allegedly passed away. His Sworn Police Statement described the subject as having blond hair several inches long, scruffily dressed and unshaven, which he discussed with Sgt. Lindberg and Detective Ruxton, and who took notes of these discussions. Yet the trial court prohibited this vital exculpatory information from being presented to the jury so they could learn the truth. VRP 116-119, 205, 673, 701, 2, 4.
Motel manager Mrs. Patricia Stevens testified initially she had to only wipe off the black rubbery soot from the door with a rag, and wait until the end of the season eight months later to repaint the door. VRP 342. (EP 228-229) On retrial, she now claimed she had to clean off the door with degreaser compound which removed 90% of it. And the blistered paint had to be scraped off. VRP 322, 343-344, 390.
A large color photograph of the motel room door, Trial Exhibit #45, clearly shows how it appeared after she wiped off the black rubbery soot, before it was sanded. VRP 359, 361. Appellant attempted to use this photograph on appeal to point these facts out to the court, even filing formal motions to compel its production, yet each of the courts have repeatedly declined to allow its production or use in the appellate process. (EP 460-467 Motions; EP 389 Order of Denial)
She also claimed on weekend she always locked the rear gate of the motel, to prohibit cross traffic from driving through to Max Dale’s Lounge. And that she had locked it that evening. VRP 385-386. This showed that both cab drivers, informant Campbell and Mr. Hackley, who testified after they dropped off Appellant at the end of the motel, then exited the end through the unlocked gate, were incorrect. VRP 277. IN fact, neither had ever picked up Appellant, but Tommy.
The State claimed three cab drives had driven Appellant to the motel and later to the gas station that evening. Cab driver informant Barry Campbell was working undercover as a confidential informant for several different police agencies in the state, including the Washington State Patrol, Sedro-Woolley Police Department and Skagit County Drug Task Force. (EP 788-789) Informant Campbell claimed he had only worked undercover for the Skagit County Drug Task Force. (EP 631 Question #20)
The day he claimed he took Appellant to the gas station to purchase gasoline, he had broken into a home and stolen several SKS rifles to get money to buy drugs. Several days before this, he had stolen several chain saws from Neilson Brothers Logging to buy heroin. He was arrested and booked into the Skagit County Jail by Officer Chad Clark. (EP 554-555; EP 636-637). He was released on a $2000 bond by prosecutor Corbin Volluz, the same prosecutor who was prosecuting Appellant. Mr. Volluz claimed informant Campbell was not using drugs during the time he was providing information against Mr. McDonald, both to the Court and in Bar complaints Mr. McDonald filed to the WSBA. (EP 543-555) These facts were later disproved and admitted as false by informant Campbell after Appellant located people who he was shooting heroin with in his cab the night he claimed he gave Mr. McDonald a ride to the gas station. According to him: “I was a bad boy.” VRP 476-477.
At trial, informant Campbell failed to appear and his bond was forfeited. Prosecutor Volluz returned his forfeited bond monies on July 17, 1996, and the following day, informant Campbell now provided a new inculpatory statement over two legal pages in length, when his initial statement was only 14 lines long. And concluded by saying: “That’s all I know.” (EP 543-555; EP 576 vis-à-vis 611) Prosecutor Volluz claimed when he learned he was prosecuting both Mr. McDonald and informant Campbell, he turned his case over to another prosecutor in the office. This too was false, as court documents showed Prosecutor Volluz’s signature on informant Campbell’s court documents until Appellant went to trial. (EP 452-458; EP 622-633; 1/24/02 p. 12-25; EP 282-294). When being questioned about this, Mr. Volluz claimed he could not remember any of these facts or details. Only details favorable to himself. (EP 622-628)
Informant Campbell acknowledged he was arrested during the time Appellant was going to trial, September of 1996, by Officer Chad Clark who booked him into the Skagit County Jail on an outstanding warrant. During the arrest, Officer Clark had found a syringe and a crack pipe in his car. (EP 629-633 Report of Barry Campbell). Officer Clark checked the computer January of 2002 and discovered that all this information had been deleted from the computer records. He suspected that this was done by the Skagit County Drug Task Force to sanitize informant Campbell’s image for future drug prosecutions. 1/3/02 p. 9-43 (EP 312-346; EP 636-637 Statement by Officer Chad Clark)
Also discovered during a more thorough investigation of this informant before retrial and at Mr. McDonald’s constant urging, was that the Skagit County Drug Task Force, that Prosecutor Volluz was the head of, had been paying informant Campbell’s restitution for various thefts that he had committed in Sedro-Woolley. Further, that the Sedro-Woolley Police Department was being urged by the Skagit County Drug Task Force not to file additional criminal charges against informant Campbell for various crimes he had committed. 1/24/02 p. 12-35 (EP 282-294)
Again, despite this overwhelming proof of wrongdoing obtained by Mr. McDonald, and credibility concerns, the trial court prohibited any questioning of informant Campbell on any of these issues. Which Court deemed “collateral impeachment evidence.” This act enabled the State to obtain completely irrefutable trial testimony which inculpated Appellant. VRP 467-475 Trial Objections. (EP 524-531 Motion to Allow Questioning; EP 395, 400-401 Orders of Denial). In response to his objections, the Court simply pointed to the banner it had hung stating that under the Constitution he had only two rights, the right to go to jail and the right to stay there until his term is up.
Even based on other State witnesses, informant Campbell’s trial testimony was not credible. In police reports to Detective Ruxton and during his testimony, the physical description he provided Detective Ruxton with of the person whom he had in his cab, which had “medium length long brown hair, two inches or so, and was five feet eleven inches tall.” VRP 503-504. Mr. McDonald’s accurate description was listed on the face of Detective Ruxton’s Search Warrant as being: “a military style crew-cut, clean shaven, 42 years old and about 200 lbs.” VRP 727 (EP 74-76. He also claimed that he “did not have time to call this ride in to dispatch” so that was the reason there was no record of it ever taking place. VRP 505-506.
Moreover, there was no record or proof that he had leased his cab that night or for the entire month of February or March 1996. VRP 494. (Trial Exhibits 96, 97, 99) He failed to file income tax returns “because I was a heroin user and had no money to pay the government because it would interfere with my drug use.” 1/3/02 p. 10 VRP 501. His ex-wife, Bank of America President Sharon Purty-Hall and other friends Janet Gibbs and Karen Wilson, all testified or gave statements that informant Campbell would do anything not to go to jail: including telling lies and giving false information (EP 89-96; EP 634-641 Interview Summaries)
In 1996 the Yellow Cab Company’s President, Debra Logan, was issued subpoena for all records she had relating to any cab drivers giving rides to or from the West Winds Motel or the gas station in Mount Vernon. They replied that none existed, after thoroughly searching. This was due to “poor record keeping.” VRP 1068-1082; VRP 1072-1074. On retrial in 2002, she now claimed she had located records which showed cab driver Gerold Hackley had given someone a ride “across the street from Cascade Pizza to the West Winds Motel that cost a dollar.” VRP 1061. But she claimed again that she could not locate any to or from the gas station. (Trial Exhibits 93, 99)
Informant Campbell again had to claim there was no dispatch log showing he had given Appellant a ride, now according to Mrs. Logan. But included that Appellant and cab driver Dorothy Evans had had a conversation while in his cab so “he could say hi to her.” Mrs. Evans adamantly denied any conversation ever took place which also was against company policy according to her and Mrs. Logan. VRP 504, 812-813. These facts as well support the inference that informant Campbell would say or do anything to make the police believe his “story.” Even to go against other State listed witnesses.
Cab driver Gerold Hackley testified he had been “flagged by a young man” he had earlier picked up and driven from Cascade Pizza across the street to the West Winds Motel. VRP 272-274. He also claimed that the person who he had in his cab the “second time” asked him where Cascade Pizza was. He referred to him as being a “good kid.” (Mr. McDonald was 42 years old and Mr. Hackley 28 at the time. VRP 259) He also claimed that the person who he had in his cab “smelled like gasoline and was talking to himself.” VRP 251, 261. This person was “scruffily dressed” according to him.
Contrary to sound police procedures and common sense as dictated by fading memories as time goes by, Detective Ruxton deliberately waited seven months to show Appellant’s photograph to his witnesses, the cab drivers, solely to cause misidentification after neither gas station attendant identified Mr. McDonald as the perpetrator. Mr. Hackley had initially described in police reports the person whom he had in his cab as having “brown or blond hair, medium cut, not what I consider long.” VRP 271: “It wasn’t a military cut short haircut.” VRP 276. His February and March Quarterly Lease Reports showed he had not rented his cab for those months. “I agree with you.” VRP 279-287. (Trial Exhibits #66 and #99)
He also testified that he had dropped Appellant off at the end of the motel at his room, “and exited out the rear end gate of the motel.” VRP 277. Yet Manager Stevens attested that she always locked the rear gate to prohibit cross traffic, and that she had locked it that night. VRP 385-387. (Trial Exhibits #55 and #60 Photographs of Gate).
The third cab driver, Mrs. Dorothy Evan’s Dispatch log showed she had only driven Appellant as far as downtown Bellingham. VRP 440. She claimed it was normal for drivers to call in to dispatch all the fares and their exact locations for “safety reasons.” Even though she felt Mr. McDonald was acting strangely, she was not concerned enough to notify dispatch of her correct destination of the West Winds Motel in Skagit County, over 45 minutes away. VRP 427-428. Her dispatch log shows she took him to downtown Bellingham, not Skagit County. VRP 441-443.
She testified she originally provided Detective Ruxton with a three-page Sworn Police Statement, but now it was only two pages long. Review of the numbers clearly shows that they have been altered. VRP 442. Appellant alleged that Detective Ruxton had done this to exclude exculpatory evidence she had provided, that did not go along with his theory of the crime. Several hearings were held on this fact, all denied by the State, until she admitted during questioning under oath she had provided a three-page Sworn Statement. 10/3/01 p. 50-52.
She could not come up with a valid reason or excuse why Yellow Cab President Debra Logan had called her to “warn me about a detective named Linth who was investigating the facts of the case for Mr. McDonald.” VRP 436. Mrs. Logan had “told her to be prepared.” VRP 444. Appellant claimed this showed they together had fabricated false evidence, and were concerned it would be discovered and they exposed for helping the police. This was why he did not call her as a witness after he listed her and learned she had not “found” new inculpatory records.” VRP 1072-1074.
Mr. McDonald’s last witness was John DeHaan, Ph.D., and internationally renowned arson expert, with over 25 years of experience and education. Including a 30-page Curriculum Vitae. (EP 42004466) He testified that if there had been any gasoline at all ever in the plastic bucket in Mr. McDonald’s bathroom, “the pentane solvent would have eluted the hydrocarbon residue and provided a positive result.” VRP 1002-1007. The State’s forensic chemist and expert, Eric Neilson, tested many items listed on the official report as not being tested: each of which were tested and each of which returned a negative result. VRP 624. These facts were then suppressed from Mr. McDonald by Detective Ruxton, and not revealed until cross-examination on the witness stand, and not included on the State’s final report of the evidence. Mr. McDonald then moved for the admission of this vital document to display to the jury in chambers due to its complexity, and was denied by the trial court when it pointed its finger to the Banner. VRP 630. (Trial Exhibits #71 through #73)
Many items which could have proven Mr. McDonald’s innocence for the commission of the crime were not collected and processed by Detective Ruxton. It was the State’s forensic chemist that testified to this. VRP 625. AS did Mr. McDonald’s expert Dr. DeHaan. VRP 1020-1021.
Dr. DeHaan testified based upon review of the trial exhibits, specifically trial exhibit #45. Which was a large color photograph of the motel room door after the soot had been wiped off with a rag, showing that the surface had never been on fire. He attested there had never been any flames on the surface of the door that could have entered into Mrs. Clarke’s room. His testimony was also based on the witness’s prior 1996 trial testimony and all photographs of the scene.
According to his new Affidavit, his trial testimony if the surface of the motel room door had ever been on fire is now removed from the trial transcripts. Trial counsels also provided an Affidavit attesting that his testimony is no longer part of the record, and what some of the questions were that he asked him while on the witness stand. (EP 409-417)
Detective Ruxton claimed to have only investigated “two arsons in my 19 years of being a police officer.” VRP 634-635, 714. He also claimed that he never had any arson evidence collection training. VRP 749. He admitted to observing arson investigator Malone collecting and packaging his arson evidence in sealed containers, along with Sgt. Lindberg, but “never thought to ask why or to request his assistance in collecting this critical evidence from Mr. McDonald’s possession or from inside his room.” VRP 827-829.
His theory of the crime was that the Appellant lit Mrs. Clark’s doormat on fire because he was “upset with the woman in room 119 because of a noise complaint.” VRP 372, 805-807. The Arson Report stated the reason for the fire was due to “spite, grudge or revenge.” VRP 544, 775-756. Through creative writing techniques he endeavored to tailor his police reports to “create” this theory. When Mr. McDonald exposed many of his inculpatory facts as being false, he claimed they were simple innocuous errors.
His sworn Affidavit of Probable Cause stated Mr. McDonald had contacted Mrs. Clarke earlier in the evening around 1:30 a.m. making a noise complaint. This inculpatory fact was false. The actual time was 10 p.m. and the contact was due to an ongoing fight in the parking lot outside his room at the Max Dale’s Lounge. Mrs. Clarke testified that no contact was made at this time. He also claimed she “thought his behavior was strange and was frightened at this early morning contact.” VRP 729-731. Again, she denied that any of this had taken place. VRP 80-81.
He then compounded this “error” by including these incorrect facts in many of his following police reports, nonchalantly claiming at trial that “it’s one of those things I did not particularly look at.” VRP 732.
The next thing “he did not particularly look at” was when he swore in his Supplemental Affidavit that “Mrs. Clarke stated she had another noise complaint from the manager at around 11:00 p.m. from Mr. McDonald stating he was complaining of her making noise.” VRP 756-757. Again, Mrs. Clarke stated she never made such a claim to Detective Ruxton. VRP 80-81. As did the motel’s manager, Mrs. Stevens. VRP 382-383.
In his February 5, 1996 Supplemental Narrative he claimed he interviewed Mrs. Stevens who told him when she rented the room to Mr. McDonald, that “it was a non-smoking room and he said he wasn’t going to be smoking.” VRP 762-763. In her February 4, 1996 Sworn Police Statement she personally provided to him about the facts of the crime, she stated just the opposite. That Mr. McDonald told her he did smoke, and she said it was okay to do so, but to please do it outside his room.” VRP 382-383. (Trial Exhibit 54).
In his following Sworn Affidavit, Detective Ruxton claimed Dr. Giles had told him Appellant was leaving his home “because aliens had found him.” And he had “bouts of delusions and sudden outbursts of anger.” VRP 765, 801. Dr. Giles came to court and testified when asked about this: “Hell no . . . absolutely not.” VRP 907, 909. Dr. Giles further testified that Detective Ruxton attempted to force him to file false criminal charges against Mr. McDonald for theft: “I was outraged.” VRP 910-912.
Detective Ruxton then failed to investigate the credibility implications of informant Campbell’s new July 18, 1996 police statement, after the return of his forfeited $2000 in bond money by prosecutor Volluz, claiming that Appellant had a conversation over his cab’s radio with driver Dorothy Evans, which she categorically denied ever took place. VRP 504, 813, 447. He further failed to investigate Mr. Hackley’s claim that the reason he knew Ms. Evans had brought Mr. McDonald to Mount Vernon was because she was the only cab driver working in Bellingham that night. Which was false according to Yellow Cab President Debra Logan. VRP 1077.
Detective Ruxton also claimed that cab driver Gerold Hackley had given Appellant a ride to the motel from Cascade Pizza at 2:00 a.m. Yet Mrs. Clarke testified that “from 10:00 p.m. until 2:00 a.m. there had been constant banging and loud talking, the TV blasting and doors opening and closing in room 120 next door to her.” If Mr. McDonald had been at the Cascade Pizza and picked up at 2:00 a.m. by Mr. Hackley, who then was in his motel room making all this noise? VRP 183-184, 744, 758, 791-793. Detective Ruxton should have endeavored to find out, instead of trying to make a square peg fit into a round hole.
Mr. McDonald repeatedly tried to provide a tape recorded statement of the incident to both Sgt. Lindberg and Detective Ruxton. Both refused, and made up all kinds of excuses not to take his recorded statement, so they could come to court and say he made all kinds of comments that he never made about the crime. VRP 190-192, 226-228, 749-754, 945-950.
Both Sgt. Lindberg and Detective Ruxton neglected to collect Appellant’s tennis shoes, the doormat, and properly collect any of the arson evidence that they collected connecting Appellant to the crime. Each then admitted they had made “mistakes” and had “committed errors,” gaining the acceptance that their admissions would erase the taint and release them from responsibility from wrongly collecting the evidence. These alleged “errors” then gave Mr. McDonald no way to refute their claims that these items had originally been impregnated with gasoline vapors. This was the critical evidence that resulted in his finding of guilt. VRP 173-174, 198-199, 208-211, 653-655, 717-719, 731, 743, 749-816.
Both the State of Washington’s forensic chemist Eric Neilson and Appellant’s expert John DeHaan, attested that had all these items been properly collected and packaged by the arson investigator and fire chief, it would have conclusively established his guilt or innocence. VRP 625 Eric Neilson: VRP 1020-1021 John DeHaan.
Sgt. Lindberg and Detective Ruxton testified they had made errors and all the evidence they collected should have been packaged differently. “Yes, I made a mistake.” VRP 172-174, 197-199, 210-211. Or that, “I believed I was doing it the proper way. (Despite viewing Arson Investigator Malone doing it the right way) It was shortcomings on myself. Only I can take responsibility for it.” VRP 717-718. And also admitted that he had “written things in my police reports that were apparently not correct.” VRP 796. These alleged “mistakes” constitute bad faith.
The wealth of the apparent peripheral evidence disproves their claims of simple mistakes or errors, and shows a deliberate and conscientious effort to mishandle the evidence so they could later come to court and claim that it had originally been saturated with gasoline vapors that had evaporated, which Appellant could not disprove.
Starting with their admitted watching of Arson Investigator Mark Malone collecting and packaging his evidence in sealed containers. Or when being personally handed some of this evidence by Officer Gregg Booth in sealed containers before either had started to collect any evidence from Mr. McDonald. VRP 223. And when Investigator Malone stated that neither one seemed interested in the way he was collecting his evidence, even though both saw him. VRP 1980199, 560-561, 815-816, 826-829. The most important disclosure by the arson investigator supporting this was when he testified that, “I collect the arson evidence, not the police, and then turn it over to them so they can send it to the crime laboratory.” VRP 553-554. Yet in this case, something very different happened.
To ensure their “evaporation theory of the gasoline” would fly, both Sgt. Lindberg and Detective Ruxton subverted the proper and logical way the investigation was conducted, by stopping both fire investigators from performing their jobs inside Mr. McDonald’s room. To fail to ask either to verify their alleged suspicions of gasoline vapors on Mr. McDonald or inside his room. VRP 835-839.
Further supporting this was their actions of leaving this critical time sensitive evidence laying around in the police property room for over two months, before remembering to send it to the crime laboratory for analysis. The expressed reason given by them: “I have no explanation. I don’t handle arson cases that much.” VRP 742-743. When asked why he had waited 7 or 8 months to show informant Campbell and Mr. Hackley Appellant’s photograph he replied; “I have quite an extensive case load. I had to do it sometime.” VRP 814-816. And then went on to characterize the State witnesses’ descriptions that did not match Mr. McDonald’s physical characteristics as being “mere nuances.” VRP 823. and “McDonald did not fit the State witnesses’ descriptions they provided.” VRP 838-839.
The totality of these facts support Appellant’s claims for relief, as outlined in his COA filed before the District Court. These facts in addition to those in the attached Appendix should be considered by this Court in its evaluation of merit for his Issues he would like this Court to consider, set forth in the COA filed before the District Court. (DK 93)
Respectfully Submitted,
Steven Darby McDonald #703852, C-310
Monroe Correctional Complex/WSR
PO Box 777
Monroe, WA 98272
I, Steven Darby McDonald, do hereby certify that a true and correct copy of the foregoing has been mailed prepaid by US Postal Authorities to: Ronda Larson Assistant Attorney General, PO Box 40116, Olympia, WA 98504 on this 3rd day of April 2009.
I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of Washington.
Dated: 4/3/09                                ______________________________________
                                                   Steven Darby McDonald #703852/C-315
                                                   Monroe Correctional Complex/WSR
                                                   PO Box 777 Monroe, WA 98272

[1] All documents referenced herein are designated by the following. (EP) references the Appellant’s five pro se supporting Appendix Section originally filed to support his petition. (DK 2-6), VRP references page numbers that comprise the trial transcript filed by the Attorney General. Pre and Post trial proceedings are referenced by the date they occurred followed by the specific page number.