State Of Washington v. Kevin Braa ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80614-9-I
Respondent, DIVISION ONE
v.
KEVIN J. BRAA, UNPUBLISHED OPINION
Appellant.
CHUN, J. — Kevin Braa shot Simeon Whitney in a bar fight. Whitney died
as a result. A jury found Braa guilty of first degree manslaughter with a firearm
and five counts of unlawful possession of a firearm. Following his conviction,
Braa moved multiple times for post-conviction DNA testing of evidence from the
crime scene to establish a self-defense claim. We previously considered two
appeals of denials of those motions in State v. Braa, 2 Wn. App. 2d 510, 410
P.3d 1176 (2018) (Braa II), and State v. Braa, No. 77446-8-I (Wash. Ct. App. Jul.
22, 2019) (unpublished) http://www.courts.wa.gov/opinions/pdf/774468.pdf (Braa
III), and affirmed the trial court in both cases. Braa now appeals the trial court’s
denial of a third motion for post-conviction DNA testing. We affirm.
I. BACKGROUND
We summarized the facts in an opinion deciding a direct appeal of his
conviction:
On the evening of November 11, 2006, Kevin Braa was sitting at the
bar reading a book in Kuhnle’s Tavern in Marysville. Simeon
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80614-9-I/2
Whitney was there playing pool with his brother, Roger Enick, and a
friend, Kenny Celestine. Whitney, Enick, and Celestine are Native
American and went to Kuhnle’s Tavern because it is a hangout for
Native Americans.
Enick and another bar patron argued over a game of pool, and the
other patron used racial slurs about Native Americans. At some
point, Braa went over to the pool table and made offensive comments
toward Enick. Whitney pushed Braa out of the way and told him,
“Leave my homeboy alone.” Braa told Whitney, “Go back to Mexico
where you belong. You’re a sub-human.” When the bartender heard
this, she told Braa that he would be asked to leave if he continued to
talk that way. Braa did not comply, so she escorted him to the back
door. A minute or two later, Whitney went out through the same door.
A fight ensued between Whitney and Braa outside behind Kuhnle’s
Tavern. Witnesses saw Whitney repeatedly punch Braa and pull
Braa’s shirt up over his head. After the fight, Whitney started toward
the back door of Kuhnle’s, and Braa went over to his truck. Braa
fired four to six shots at or toward the back door. Some witnesses
saw Braa standing by his truck with the door open and his arm
extended as he fired. Whitney staggered through the back door and
collapsed by the bathrooms. When the bartender heard the
gunshots and saw Whitney on the floor, she ducked down and called
911. Two witnesses saw Braa drive away in a white Chevy S-10
pickup.
A police officer who happened to be a few blocks away heard the
gunshots and responded to the scene. Whitney had a pulse but was
bleeding from the abdominal area and was nonresponsive. He was
airlifted to Harborview and died en route. Later, an autopsy
determined Whitney had suffered four gunshot wounds. The wounds
showed that the bullets traveled from back to front through Whitney’s
body. One bullet and fragments from another were recovered from
his abdomen. Another bullet exited through the front of his abdomen.
The cause of Whitney’s death was shock, trauma, and loss of blood
due to the gunshot wounds.
Officers found bullet jacket fragments near where Whitney had lain.
There were shell casings in the parking lot, as well as the book the
defendant had been reading at the bar. Detectives recovered three
bullets and bullet shrapnel from the back door area and the carpet
just inside the back door. There were two indentations in the metal
of the back door, which were consistent with bullet strikes.
Detectives also located a bullet hole in an interior wall just inside the
back door. Forensic analysis later confirmed that the bullet taken
from Whitney’s abdominal wall and the bullet found by the back door
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No. 80614-9-I/3
were fired from the same gun. The four shell casings found in the
parking lot were compared and it was forensically determined that all
had been fired from one gun.
Braa lived in a two-bedroom trailer that he shared with a roommate,
Lenny Graff. Braa returned home around 10:30 on the night of the
crime and asked Graff to get some beer, which Graff did. Graff
recalled that Braa looked like he had been in a fight, with black eyes
and a bloody nose. When Graff returned with the beer, Braa had
changed his clothes and no longer looked dirty or bloody. Graff
asked what had happened, and Braa told him that he had “killed a
subhuman.” When Graff asked what a subhuman was, Braa
responded, “It means if you’re not white, you’re not right.” He told
Graff he had been jumped by some Mexicans who wanted to steal
his wallet. He refused to discuss further the topic of killing someone
and asked Graff to lie and say he had been home all night.
That night, Braa parked his car several feet further from the roadway
than he usually did, and he did not move it for the next three days.
On November 14, 2006, officers arrived at Braa’s trailer to execute a
search warrant and arrest him. They could see Braa inside, through
the kitchen window. They announced their presence over the patrol
car PA systems. They also used a “hailer,” a box equipped with a
loudspeaker, a handle for throwing, and hundreds of feet of cable, to
communicate with Braa. Several times, an officer announced, “Kevin
Braa, this is the Sheriff’s Office. We have a warrant for your arrest.
Identify yourself and surrender,” but Braa did not come out. Officers
shone lights into the home, and a helicopter was also used to
illuminate the area. After Braa failed to respond to repeated voice
commands, officers deployed two pepper spray projectile canisters
through a window of the trailer. Braa came outside a few seconds
later, complied with officers’ verbal instructions, and was taken into
custody.
Four and a half months later, while doing yard work, Graff discovered
a plastic garbage bag under the deck of the trailer. Inside, he
discovered Braa’s 9mm semiautomatic Ruger handgun. He called
911, and police picked up the gun. Forensic analysis confirmed that
the bullet extracted from Whitney’s abdominal wall had been fired
from that weapon and that one of the four spent shell casings found
in the parking lot had also been fired from that weapon. The other
bullets and casings were not analyzed because it had already been
determined that they had been fired from the same weapon as the
tested bullet and casing. An expert in trajectory analysis testified that
at least one bullet had been shot from a height of about four and a
half feet, within 10 feet of where bullet fragments were imbedded in
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No. 80614-9-I/4
the wall inside the tavern. The evidence was consistent with the
trajectory from a gun held by a person of average height while
standing up.
At trial, Braa conceded that he shot the gun and argued that it had
been in self-defense. He testified that he had a verbal exchange with
some guys he thought were Mexican and that he had called them
“Mexicans” and “sub-humans” and “invited them to go back to their
own country.” He recalled that the bartender had asked him to be
quiet and go sit down, and he testified that he did so. Shortly
afterward, he left the bar through the back door and as he was
leaving was hit over the head and lost consciousness. When he
came to, he was being beaten by an unknown assailant. He did not
fight back but tried to protect himself by curling up. He tried to get
away but was beaten more and shoved to the ground. He thought
he was going to be beaten until he was killed. After being slammed
into a vehicle, he got his gun out and fired immediately. He testified
that he was slumped, lying on the ground when he fired.
Braa was charged with second degree murder and, in the alternative,
first degree manslaughter. The jury found Braa guilty of the alternate
charge of first degree manslaughter.
State v. Braa, noted at 150 Wn. App. 1035, 2009 WL 1591369, at *1–3 (Braa I).
In 2016, Braa moved the court under RCW 10.73.170,1 seeking
appointment of counsel and DNA testing of a blood drop in the parking lot
1
RCW 10.73.170 provides, in applicable part:
(1) A person convicted of a felony in Washington state court who
currently is serving a term of imprisonment may submit to the court that
entered the judgment of conviction a verified written motion requesting
DNA testing, with a copy of the motion provided to the state office of public
defense.
(2) The motion shall:
(a) State that:
(i) The court ruled that DNA testing did not meet acceptable
scientific standards; or
(ii) DNA testing technology was not sufficiently developed to test
the DNA evidence in the case; or
(iii) The DNA testing now requested would be significantly more
accurate than prior DNA testing or would provide significant new
information;
4
No. 80614-9-I/5
(evidence items 1 and 5). Braa III, No. 77446-8, slip op. at 5. The trial court
denied Braa’s motion, and in a published opinion, Braa II, this court affirmed,
concluding
that a favorable DNA test result of the blood drop would not establish
Braa’s innocence on a more probable than not basis. State v. Braa,
2 Wn. App. 2d 510, 523, 410 P.3d 1176 (2018). It reasoned that
even if Braa were entitled to a “favorable presumption” that a DNA
test would reveal the blood belonged to Whitney, Braa was not
entitled to the presumption that the existence of Whitney’s blood in
that specific location in the parking lot meant Braa shot Whitney in
that location. Id. at 521. It noted that Whitney’s blood could have
ended up in that spot in a number of ways, including during the fist
fight itself; it did not mean that Braa shot Whitney in that location. Id.
at 522. Thus it concluded that the trial court had not abused its
discretion when it denied Braa’s motion.
Braa III, No. 77446-8, slip op. at 5–6.
In 2017, Braa moved a second time, seeking DNA testing of bullet jackets
or fragments from the parking lot (evidence items 10 and 18). Braa III,
No. 77446-8, slip op. at 6. “Braa claimed that DNA testing of these bullet jackets
or fragments ‘would provide new information about where [Whitney] actually was
when shot, confirming Braa’s claim of necessity due to self defense/imminent
danger.’” Id. (alteration in original). The trial court denied the motion because
Braa had not met his substantive burden of demonstrating that any favorable
(b) Explain why DNA evidence is material to the identity of the
perpetrator of, or accomplice to, the crime, or to sentence enhancement;
and
(c) Comply with all other procedural requirements established by
court rule.
(3) The court shall grant a motion requesting DNA testing under this
section if such motion is in the form required by subsection (2) of this
section, and the convicted person has shown the likelihood that the DNA
evidence would demonstrate innocence on a more probable than not basis.
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No. 80614-9-I/6
DNA evidence would show his innocence on a more probable than not basis. Id.
And this court affirmed. Id. at 10. The reviewing panel recognized that even if
the bullet jacket near Braa’s shooting position tested positive for Whitney’s DNA,
it would not establish that he acted in self-defense, since the position of the bullet
shrapnel does not necessarily show that Whitney was shot in same location as
the shrapnel. Id. at 8. It also reasoned that if the bullet shrapnel near the back
door tested positive for Whitney’s DNA, “this evidence would place Whitney
exactly where witnesses observed him when Braa shot him.” Id. Finally, it noted
that Braa’s actions following the shooting, such as hiding the gun, admitting he
had “killed a sub-human,” and telling his roommate to lie to police about his
whereabouts, did not support his self-defense claim. Id. at 10.
In 2019, Braa moved a third time for post-conviction DNA testing. Braa’s
motion seeks testing of:
 The blood spot and bullet jackets or fragments identified in his previous
two motions (evidence items 1, 5, 10, and 18); and
 Blood from the bar’s back doorjamb (evidence items 2 and 3);
 A copper bullet from the parking lot (evidence item 13);
 A lead bullet from the parking lot near the back door (evidence item 16);
 A lead bullet in the bar hallway that went through the wall (evidence item
21); and
 Whitney’s fingernail clippings taken at autopsy (evidence items 80
and 85).
Braa requested that the deciding court examine the newly requested evidence
cumulatively with the evidence from the previous motions: “[a]ny item examined
in solitary isolation previously becomes a completely new issue and
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No. 80614-9-I/7
grounds/argument when combined collectively with the numerous other items.”
The trial court again denied his motion because he had not met his substantive
burden under RCW 10.73.170(3), stating that “even assuming DNA testing of the
requested evidence was favorable, such favorable result when considered along
with all the other evidence from the trial would NOT demonstrate his innocence
on a more probable than not basis.” Braa appeals.
II. ANALYSIS
Braa says the trial court abused its discretion in denying his motion for
post-conviction DNA testing since a favorable testing result for the requested
items would render it more probable than not that he shot Whitney in self-
defense. We disagree.
We review for abuse of discretion a trial court’s decision on a motion for
post-conviction DNA testing. State v. Crumpton, 181 Wn.2d 252, 257, 332 P.3d
448 (2014). “A court abuses its discretion when an ‘order is manifestly
unreasonable or based on untenable grounds.’” State v. Rafay, 167 Wn.2d 644,
655, 222 P.3d 86 (2009) (quoting Washington State Physicians Ins. Exch. &
Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993)). For
example, a court “abuses its discretion if the decision rests on facts unsupported
in the record or was reached by applying the wrong legal standard.” Crumpton,
181 Wn.2d at 257.
In deciding a motion for post-conviction DNA testing under
RCW 10.73.170, “[a] court should look to whether, considering all the evidence
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No. 80614-9-I/8
from trial and assuming an exculpatory DNA test result, it is likely the individual is
innocent on a more probable than not basis,” and if so, grant the motion. Id. at
260–61; RCW 10.73.170(3). But the court must look at the potentially
exculpatory DNA evidence in the context of all the other evidence at trial when
deciding whether the DNA evidence might show innocence. Id. at 262–63. The
substantive hurdle imposed by RCW 10.73.170(3) is meant to be onerous, and
“[t]esting should be limited to situations where there is a credible showing that it
could benefit a possibly innocent individual.” Id. at 261. And while a petitioner is
entitled to an inference of a favorable DNA result, they are not entitled to
additional favorable presumptions. See Braa II, 2 Wn. App. 2d. at 521–22 (while
Braa was entitled to inference that the blood drop contained Whitney’s DNA,
Braa was not entitled to inference that blood proved Whitney was shot in that
spot).
A claim of self-defense can support a motion for post-conviction DNA
testing. Id. at 520.2 A person may justifiably commit homicide “when there is
reasonable ground to apprehend a design on the part of the person slain to
commit a felony or to do some great person injury to the slayer . . . and there is
imminent danger of such design being accomplished.” RCW 9A.16.050(1).
2
The trial court denied Braa’s motion for post-conviction DNA testing because he
did not meet his substantive burden under RCW 10.73.170(3). The trial court did not
rule that Braa failed to meet his procedural burden under RCW 10.73.170. Braa says
that he met his procedural burden under the statute; the State agrees. And in deciding
Braa’s first motion for post-conviction DNA testing, we decided that Braa met his
procedural burden under the statute and that a motion for post-conviction DNA testing
can rest on a self-defense claim. Braa II, 2 Wn. App. 2d at 520. We assume that Braa
met his procedural burden under the statute.
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No. 80614-9-I/9
“A person who kills in lawful self-defense is not a perpetrator because justifiable
homicide is not a crime.” Braa II, 2 Wn. App. 2d at 519.
Braa contends that a favorable outcome of testing the copper bullet in the
parking lot (item 13) would be that it contains Whitney’s DNA; since the copper
bullet was near Braa’s position, he says that the presence of Whitney’s DNA
would support his theory that he shot Whitney in self-defense. This theory aligns
with his argument regarding testing of the blood drop in the parking lot (items 1
and 5) and the testing of the copper shrapnel (items 10 and 18) from his earlier
motions—there, as here, he said that Whitney’s DNA on items close to him would
establish that he shot Whitney in close range and thus in self-defense. By
contrast, Braa says that a favorable outcome of testing the doorjamb blood
(items 2 and 3), the lead bullet near the back door (item 16), and the lead bullet
in the bar hallway (item 21) would be that they lack Whitney’s DNA; since these
items were not close to Braa, he says the lack of DNA would support his
assertion that he did not shoot Whitney while Whitney was far from him.
But as addressed in this court’s previous decisions on Braa’s motions for
DNA testing, while he is entitled to an inference of favorable DNA testing, he is
not entitled to an inference that the presence of Whitney’s DNA in a given
location establishes that Whitney was shot in that location; the presence of
Whitney’s DNA on an item in a particular location does not necessarily show that
Whitney was shot in that item’s position. See Id. at 521–22. And as discussed
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No. 80614-9-I/10
below, testing of the requested items would not make it more probable than not
that Braa acted in self-defense.
Items 2 and 3
As to the blood on the doorjamb, Braa’s claim that a lack of Whitney’s
DNA in the blood would help establish his self-defense claim is unavailing. The
presence of another unidentified person’s blood on the door frame has nothing to
do with Whitney’s proximity to Braa when he was shot.3
Items 16 and 21
As to the bullet near the back door and the bullet inside the bar hallway, it
is hard to see how their lack of Whitney’s DNA would show that Braa shot
Whitney while Whitney was close to Braa. The lack of DNA would show that
Braa missed while firing at Whitney, regardless of proximity. Indeed, common
sense dictates that Braa would be more likely to miss Whitney if Whitney were far
away when he fired. A lack of Whitney’s DNA on the bullet fragment at the back
door and inside the bar hallway would not support Braa’s self-defense claim.
3
In his SAG, Braa says that, in the alternative, if it does contain Whitney’s DNA,
the blood is a smear, not a spray, so there would have to be “bleed time” to get through
Whitney’s clothing, showing that he did not shoot Whitney while Whitney was near the
door. Braa’s claim about “bleed time” requires another inference about the permeability
of Whitney’s clothing to which he is not entitled. Braa II, 2 Wn. App. 2d at 521–22. This
assertion also ignores the large amount of other evidence suggesting Braa’s guilt, as
addressed below. And Braa makes no meaningful citation to the record supporting his
characterization of the blood spot as a “smear” rather than a spray. The presence of
Whitney’s DNA on the doorjamb does not bolster Braa’s self-defense claim.
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No. 80614-9-I/11
Item 13
As to the copper bullet in the parking lot near Braa’s position, even if it
contained Whitney’s DNA, it would not necessarily show that Braa shot Whitney
in that location. A forensic scientist testified that it would be difficult to tell where
a shooter fired their weapon based on the location of shrapnel. And it was windy
the night of the shooting and the bar patrons had walked through the crime
scene; also some evidence placards had no evidence next to them. Finally, this
court considered and rejected a similar argument about another bullet fragment
in the parking lot—item 10—in Braa’s previous appeal. Braa III, No. 77446-8-I,
slip op. at 8–9. Even assuming favorable testing of this item, it would not
establish that Braa more probably than not acted in self-defense.4
Other Evidence
As this court pointed out in Braa’s direct appeal and his previous two
appeals, the other evidence from trial strongly cuts against Braa’s self-defense
claim. For instance, Braa shot Whitney from behind at least three times. Braa II,
2 Wn. App. 2d at 522. The bartender saw the back bar door open, heard three
shots, then saw Whitney walking through; that Whitney could open the door
before Braa fired the shots shows that Whitney was no longer near Braa when he
fired. Multiple eyewitnesses to the shooting saw Braa either with his arm up or
4
In his SAG, Braa says testing of Whitney’s fingernail clippings (items 80 and 85)
will show wounds to Braa’s face, neck, and body were caused by Whitney’s attack and
not by Braa’s arrest. Thus, he says, they will show that he more probably than not acted
in self-defense. But Whitney and Braa fought. And it is unclear, from Braa’s SAG, why
testing of the fingernail clippings would show that Whitney’s attack on Braa was so
violent that he needed to respond to it with deadly force.
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No. 80614-9-I/12
firing toward the bar’s back door, and did not see Whitney or any other person
near him. Braa hid his gun after the shooting. When he arrived at home, Braa
told his roommate that he had “killed a sub-human” and asked the roommate to
lie to police as to his whereabouts that evening. This evidence strongly
undercuts Braa’s assertion that he shot Whitney in self-defense.
Previous Requests
Finally, Braa recognizes that he previously requested testing for some of
the items identified in the motion here in his previous motions for testing: a blood
spot and bullet jackets or fragments from the parking lot (evidence items 1, 5, 10,
and 18). As addressed above, this court affirmed dismissals of testing of those
items in Braa II and Braa III. But Braa says the trial court still abused its
discretion in dismissing this motion because it did not consider the cumulative
impact of testing those previously identified items with the newly identified items
in this motion.
Braa cites no law for the proposition that the trial court must consider all
the requested evidence cumulatively and we need not consider an argument
unsupported by legal authority. See Cowiche Canyon Conservancy v. Bosley,
118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by legal
authority need not be considered). Even if it needed to consider the evidence
cumulatively, nothing in the court’s decision shows that it failed to do so. And
neither we nor the trial court must reweigh whether to grant Braa’s motion for
testing as to the evidence identified in his previous two motions, since those
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No. 80614-9-I/13
motions were denied on their merits. See In re Pers. Restraint of Haverty, 101
Wn.2d 498, 503, 681 P.2d 835 (1984) (holding that a court will not consider a
collateral attack to a conviction if it (1) presents the same grounds as those from
a previous collateral attack, and the prior court determined those issues
adversely to the petitioner, (2) the prior determination was on the merits, and (3)
the ends of justice would not be served by reaching the merits of the later
application).5
And the trial court would not have abused its discretion in denying Braa’s
petition if considered the evidence cumulatively. As repeatedly addressed
above, the presence of Whitney’s DNA in a given location does not establish that
he was shot in that same location, and the other evidence from trial strongly cuts
against his self-defense claim.
SAG
Braa says in his SAG that we should order testing because of
prosecutorial misconduct at trial, because his trial counsel and the trial court
constructively denied his right to counsel, and because of cumulative error at
trial. He cites no law establishing that these issues can serve as grounds for a
court to grant a motion for testing. We need not consider arguments
unsupported by legal authority. See Cowiche Canyon, 118 Wn.2d at 809(arguments not supported by legal authority need not be considered). And it
5
Braa says we should grant him leniency on this issue because he filed those
motions self-represented, but Washington courts hold a self-represented litigant to the
same standards to which they hold attorneys. Edwards v. Le Duc, 157 Wn. App. 455,
460, 238 P.3d 1187 (2010).
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No. 80614-9-I/14
appears none exist, since as addressed above, RCW 10.73.170 allows a court to
order testing only when considering all the evidence from trial and assuming an
exculpatory DNA test result, it is likely the individual is innocent on a more
probable than not basis. We reject these claims.
Affirmed.
WE CONCUR:
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