State v. Ortiz

Durham, J.

Mario Ortiz appeals his aggravated first degree murder conviction following a third jury trial. Upon consideration of his claims, we affirm his conviction.

Mario Ortiz was convicted of aggravated first degree murder for the rape and murder of Fannie Slotemaker. The victim's body was discovered wrapped in blankets in a bedroom of her house. She had been stabbed several times in her throat, arm, chest and abdomen, and there were defensive wounds on her arms. Her face had been crushed. After she had been stabbed, she was dragged from room to room, probably by her hair. The victim had also been raped. When her body was discovered, she was naked from the waist up, but a pair of slacks had been put on her. There was a laceration in the opening to her vagina. The victim was 77 years old.

The knife used as the murder weapon had been taken from the victim's kitchen. The murderer left extensive bloody shoe prints throughout the scene which indicated that only one perpetrator was involved.

While investigating the scene, the police called in Joel Hardin, an agent with the United States Border Patrol. Hardin has extensive experience tracking human beings. He is the most senior tracker in the Border Patrol and has tracked over 5,000 people during his career. Hardin testified that his observations of the victim's house indicated that only one person other than the victim was present. He followed the trail left by that person across a field and through a raspberry patch to the housing development where Ortiz lived.

Hardin testified that he was able to tell that the person he was following was between 5 feet 7 inches and 5 feet 8 inches in height, and weighed 140 to 160 pounds. In addition, he said that he could tell that the suspect was familiar with raspberry bushes by the manner in which he avoided wire supports. He also observed that the person had probably been approached by a dog and had reassured that dog. On cross examination, Hardin testified that he had made the determination that he was tracking a young Mexican male, and said that this conclusion was based on his interpretation of the trail.

The Whatcom County Deputy Medical Examiner, Dr. Gibb, performed an autopsy. He obtained fluid samples from the victim's vagina and discovered spermatozoa and acid phosphatase in the samples, which indicated that intercourse had occurred.

The vaginal samples collected from the victim's body were diluted with saline, frozen by Dr. Gibb and tinned over to the police. They sent the samples, along with other evidence in this case, to the Federal Bureau of Investigation Laboratory in Washington, D.C., by parcel post registered mail shortly after receiving them. The samples had thawed when they were received and were refrigerated. They were not examined for almost 2 months from the time they were collected. When the specimens were examined, they were not suitable for testing due to putrefaction from bacterial growth.

Both the defendant and the victim have type O blood, and the defendant is a secretor. Based on that information, and statistical data about the general population, the court concluded that there is a 55 to 60 percent chance that someone other than Ortiz could have been the contributor of the semen found in the victim.

Ortiz was arrested in Othello a few days after the murder on different charges. On the way to the police station, with no prompting or questioning, Ortiz said, "I didn't want to screw the old lady. She wanted to screw me." This statement motivated the police to question Ortiz further and he made other incriminating statements. Upon further investigation, Ortiz was charged in June 1981. He was ruled competent to stand trial, and following a jury trial in November 1981, was found guilty of murder. On appeal, the conviction was reversed due to the improper admission of rebuttal evidence. State v. Ortiz, 34 Wn. App. 694, 664 P.2d 1267, review denied, 100 Wn.2d 1017 (1983).

A second competency hearing was held prior to defendant's next trial, and Ortiz was found competent. Ortiz was again convicted of aggravated murder in the first degree, but the trial court declared a mistrial due to juror misconduct.¹

After the trial was set for a third time, Ortiz brought an interlocutory appeal to this court to have certain evidence suppressed and to have a determination made on his competency. We held that the trial court had not abused its discretion when it found Ortiz competent to stand trial. State v. Ortiz, 104 Wn.2d 479, 484, 706 P.2d 1069 (1985), cert. denied, 476 U.S. 1144 (1986). We also refused to suppress evidence obtained following Ortiz' lawful arrest, including the statement made on the way to the police station. Ortiz, 104 Wn.2d at 484-85.

Prior to his third trial, in September 1986, a final competency hearing was held at defendant's request. Extensive testimony was taken, including testimony from the defendant. It was clear from all the testimony that Ortiz' abilities are very minimal due to his mental retardation. While acknowledging that it may have found otherwise in the first instance, the trial court concluded that no change in Ortiz' condition had been demonstrated and, therefore, our prior decision on competency was binding.

After another interlocutory appeal was denied, a third trial was held in October 1988. The jury returned a guilty verdict, and the trial court entered judgment and sentence. Ortiz appealed, and the Court of Appeals certified the case to this court.

A number of issues are raised. First, we must again consider Ortiz' competency. Second, Ortiz claims that the State's failure to preserve potentially exculpatory evidence requires dismissal. Third, we determine if Hardin's testimony regarding tracking was properly admitted. Fourth, the sufficiency of the evidence to support the element of premeditation is challenged. Fifth, Ortiz claims that he was entitled to an instruction of second degree murder as a lesser included offense. Finally, we examine the trial court's exclusion of evidence of a similar crime. On each issue, we affirm the trial court.

Competency

Ortiz argues that the trial court erred when it refused to find him incompetent to stand trial. A person is competent to stand trial if he has the capacity to understand the nature of the proceedings against him and can assist in his defense. State v. Hahn, 106 Wn.2d 885, 894, 726 P.2d 25 (1986); RCW 10.77.010(6); RCW 10.77.050.

In State v. Ortiz, 104 Wn.2d at 483-84, this court held that Ortiz was indeed competent to stand trial:

[W]e hold that the trial court was correct in using the traditional analysis for determining competency and thus did not abuse its discretion in finding that petitioner was competent to stand trial. We note that other jurisdictions have held persons with similar IQ's competent to stand trial.

We acknowledged the trial court's finding that both requirements of the 2-part test were met, and rejected Ortiz' argument that a more stringent test should be adopted.

Upon remand, the trial court held a third competency hearing in September 1986, and entered a written memorandum decision on September 25, 1986. The court refused to exercise its discretion, and instead made the following decision:

Having implicitly weighed all the factors which went into the trial courts' decisions, the Supreme Court sustained those holdings. This Court cannot, then, take a different stance unless it can be said that new information presented has altered the status quo ante.

Supplemental Clerk's Papers, at 136. This reasoning is sound. Ortiz claimed incompetency based on mental retardation, but did not produce any evidence that his condition had changed since his previous competency hearings. Based on the finding that there had been no significant change, the trial court correctly denied Ortiz' motion.

Exculpatory Evidence

Ortiz argues that the State's failure to preserve potentially exculpatory evidence was an error of such magnitude that dismissal is mandated. The trial court found that because the semen samples collected by Dr. Gibb from the victim were not properly preserved through either freezing or drying, the samples putrefied from bacterial growth. The samples were probably fit for blood group testing when collected, and there was a 55 to 60 percent chance that such tests would yield a blood type other than that of Ortiz, based on the distribution of blood types in the population. The court also found that there was a reasonable possibility that the samples would have been exculpatory. The trial court concluded, however, that the State had acted reasonably and in good faith, and had made earnest efforts to preserve the samples, and refused to dismiss.

lb determine if a failure to preserve exculpatory evidence amounts to a denial of due process, we apply the standard recently set forth in Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). In that case, the defendant was convicted of child molestation, sexual assault and kidnapping. Youngblood, at 52. The State negligently failed to preserve semen samples that were collected from the victim and his clothing, and tests which could have exonerated the defendant were not performed. Youngblood, at 53-54. In reinstating the conviction, the Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Youngblood, at 58.

Here, the trial court found that the State had handled the samples in the usual manner and concluded that the State had acted reasonably and in good faith. There is substantial evidence in the record to support this finding. Nothing indicates that the State had intentionally destroyed the evidence nor that any attempt was made to conceal it from the defendant. Although it may have been possible to preserve the evidence had it been handled more carefully, the State dealt with the storage and transportation of the evidence in its usual manner. In the absence of bad faith, the failure to preserve the semen samples for potentially exculpatory testing is not a violation of due process.

Ortiz argues, however, that the Washington due process clause, Const. art. 1, § 3, affords broader due process protection than the Fourteenth Amendment. Although we recently held that Washington case law regarding potentially exculpatory evidence had been overturned by United States Supreme Court decisions, State v. Straka, 116 Wn.2d 859, 883, 810 P.2d 888 (1991), the defendants there did not argue that a due process analysis under the state constitution should be considered. Here, we are presented for the first time with such a claim.

In State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986), this court enumerated six nonexclusive neutral criteria that must be addressed before we will undertake state constitutional analysis: (1) the textual language of the state constitution; (2) significant differences in the texts of parallel provisions; (3) state constitutional history; (4) preexisting state law; (5) structural differences between the federal and state constitutions; and (6) matters of particular state interest and local concern.

Several of these factors are not in dispute here. First, Const. art. 1, § 3 provides: "No person shall be deprived of life, liberty, or property, without due process of law." No further elaboration is provided. Second, this language is nearly identical to the federal provisions.² Third, no legislative history has been shown which would provide a justification for interpreting the identical provisions differently. See Journal of the Washington State Constitutional Convention, 1889, at 495-96 (B. Rosenow ed. 1962). Analysis of the fifth Gunwall factor may support the notion that our constitution is more protective in a general sense but does not shed any light on this particular issue. Gunwall, at 66. Sixth, Ortiz argues cursorily that state law enforcement is always a local matter, but again, that factor does not aid in the analysis of this particular question.

The fourth Gunwall factor, consideration of pre-existing state law, requires closer analysis. Ortiz argues that we should retain the standard adopted in State v. Vaster, 99 Wn.2d 44, 659 P.2d 528 (1983). Vaster also concerned the failure to preserve vaginal samples which could have been exculpatory. The court there set forth a 2-part test for cases where there has been a good faith loss of evidence. The defendant must first show that there is a reasonable possibility that the evidence would affect the defense, and then the court must balance that possibility against the ability of the prosecution to have preserved the evidence. Vaster, at 52; State v. Judge, 100 Wn.2d 706, 717, 675 P.2d 219 (1984). Vaster extended the protection afforded under State v. Wright, 87 Wn.2d 783, 790-91, 557 P.2d 1 (1976), which dealt with the dismissal of a murder case where the State had destroyed virtually all the physical evidence.

In State v. Straka, supra, this court unanimously held that Vaster and Wright had been overruled by federal law.³ We noted that both cases explicate federal constitutional principles,⁴ and concluded that they were thus supplanted by subsequent decisions of the Supreme Court. Straka, at 883. Since Vaster and Wright did not provide independent reasons under state law for their holdings, these cases offer no support for Ortiz' contention that the state constitution is broader than the federal.

Additional authority exists for the proposition that our law in this area is coextensive with federal requirements. Seattle v. Duncan, 44 Wn. App. 735, 743, 723 P.2d 1156 (1986). In Duncan, the defendant argued that the state constitution provides more protection than the federal provisions relied on in Vaster. Duncan, at 742. Although it did not consider Gunwall, the court rejected the proposed distinction. It reasoned that the language of the provisions was virtually identical, and that no analytic basis existed to interpret our due process clause more broadly than the federal provisions. Duncan, at 742-43.

Ortiz also argues that Const. art. 1, § 3 has already been interpreted more broadly than the federal due process clauses in State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) and in State v. Davis, 38 Wn. App. 600, 686 P.2d 1143 (1984). However, neither of those cases concerned the right asserted here to discover potentially exculpatory evidence. Bartholomew held that the state due process clause requires that the rules of evidence be applied to capital sentencing proceedings. Davis held that, unlike the federal constitution, the state constitution did not allow comment on defendant's post-arrest silence even if defendant has not received Miranda warnings. This case concerns a different application of due process.

We hold that Youngblood provides the proper standard for the preservation of exculpatory evidence. Applying Young-blood to the case before us, it is clear that there was no due process violation.

It is noteworthy, however, that even if the Vaster test were applied, Ortiz' conviction would be affirmed. The State's duty to preserve material evidence is derived from the duty to disclose exculpatory evidence as expressed in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In Brady, the Court held that a state is required, by due process concerns, to disclose evidence material to the issue of guilt or innocence. In United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), the Court set forth three distinct suppression situations. First, if prosecutorial misconduct is involved, a conviction "must be set aside if there is any reasonable likelihood" that the undisclosed evidence could have affected the jury's decision. Agurs, 427 U.S. at 103. Next, where the defense has made a specific pretrial request for evidence, the court asks if "the suppressed evidence might have affected the outcome". Agurs, at 104. Finally, where only a general discovery request, or no request at all, has been made, the State has a duty to disclose evidence only if the "evidence creates a reasonable doubt that did not otherwise exist". Agurs, at 112; see generally State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984).

In State v. Wright, 87 Wn.2d 783, 557 P.2d 1 (1976), this court recognized that the duty to preserve evidence applied to the loss or destruction of material evidence by the government. The court noted that cases involving the loss or destruction of evidence "pose a significantly different problem than the traditional nondisclosure cases in which the suppressed evidence is still in. existence." Laureano, at 760 (citing Wright, at 787-89). Next, in State v. Vaster, supra, we explained and analyzed the factors to be considered in dealing with the inadvertent or good faith loss or destruction of evidence by the State. Finally, in State v. Laureano, supra at 760, this court refined the Vaster standard for preservation of evidence:

The Vaster court ruled under these circumstances the defendant has the burden of showing there is a reasonable possibility the missing evidence would have affected his ability to present a defense. Vaster, 99 Wn.2d at 52. If such a reasonable possibility is found, this must be balanced by the court against the ability of the prosecution to have preserved the evidence (considering the procedures established for preserving evidence), the nature of the missing evidence, and the circumstances surrounding its loss.

Both Vaster and Laureano require that the missing evidence be material to guilt or innocence, in accordance with the Brady standard.

Here, the missing evidence consists of semen taken from the victim's body. Based solely on the frequency of blood types in the population, there is a 55 to 60 percent chance that the semen could have been of a different type than that of Ortiz. It is not clear, however, that the semen sample was suitable for testing when it was collected from the victim. The coroner, Dr. Gibb, testified that the body had already begun to decompose when it was found, and that bacterial growth had occurred. The FBI expert responsible for testing hypothesized that, in 2 days, putrefaction could occur. Moreover, the murder took place at the end of May, when warm temperatures would likely speed decay. Thus, although taken alone the frequency of blood types presents • a clear possibility that the evidence here could be exculpatory, under the circumstances presented, it is less certain that the evidence obtained would help the defendant. Nevertheless, some "reasonable possibility" remains that the evidence would tend to exculpate Ortiz, and it should, therefore, be considered material.

In light of the overall evidence presented against Ortiz, however, this possibility is remote. Both circumstantial and direct evidence link Ortiz to the crime. A neighbor of the murder victim positively identified Ortiz as the man who had tried to get into her house at 5 a.m. on the morning of the murder. The track leading away from the murder site led to the housing development where Ortiz lived, and indicated that someone of his height and weight had committed the crime. The shoe-print patterns found sealed in the victim's blood matched both of Ortiz' shoes precisely — they were made from the same mold and had the same wear characteristics. Moreover, traces of human blood were found on Ortiz' shoe. A hair similar to that of Ortiz was found on the arm of the victim. Finally, Ortiz made incriminating statements when he was arrested in another town on an unrelated incident several days later.⁵

When this possibility is measured against the actions of the State, it is insufficient to warrant a new trial. We examine the nature of the evidence, the ability to preserve that evidence, and the circumstances surrounding its loss. Laureano, at 760. Evidence of the type here is quite fragile, and not always easily preserved. Throughout the process, the State acted in accordance with its usual procedures. The semen was initially frozen, then shipped in the usual fashion, and then refrigerated until examined. No showing, nor indeed even an allegation, of bad faith on the part of the police or the prosecution has been made. The results of the testing that was done, as well as the fact of the putrefaction, were made available to the defense — there was no failure to disclose information here.

Moreover, it is clear from a review of the entire record in this case that Ortiz received a fair trial. In any trial, both the State and the defense pick and choose the evidence to be presented, and the lack of any one piece of evidence should not determine the outcome. Of course in circumstances where the entire body of material evidence in a case has been disposed of, see Wright, at 784-86, dismissal is warranted. Here, only one piece of evidence is missing, the jury was informed of the error, and the State did not receive any benefit from the evidence prior to its loss. Three separate juries have found Ortiz guilty of this brutal crime, and we have no doubt that he in fact committed it. In the absence of any misconduct, and with no possibility that an innocent person is being wrongfully accused, we see no reason to dismiss the charges on this basis.

Opinion Testimony

Ortiz argues that the trial court incorrectly admitted Joel Hardin's testimony regarding the defendant's height and weight, his mental state, his familiarity with the terrain and with raspberry bushes, and other testimony beyond his observations about the physical conditions he observed about the track left in the field.⁶ He contends that Hardin's testimony should not have been admitted because it was neither proper lay opinion evidence, nor proper expert testimony. We review only for an abuse of discretion. 5 K. Tegland, Wash. Prac., Evidence § 14, at 63 (3d ed. 1989).

The trial court determined that the evidence was admissible as lay opinion, and that it was not scientific evidence. No reported case deals with the admissibility of testimony by a tracker. We agree, however, with the trial court's conclusion.

A lay witness may testify as to his or her opinion in certain circumstances. ER 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

The appropriate conditions for admissibility have been explained as follows:

Under Rule 701 and Rule 602, the witness must have personal knowledge of matter that forms the basis of testimony of opinion; the testimony must be based rationally upon the perception of the witness; and of course, the opinion must be helpful to the jury (the principal test).

(Footnotes omitted.) E. Cleary, McCormick on Evidence 29 (3d ed. 1984).

Here, Hardin had gone to the crime scene and investigated the victim's house and the raspberry field behind her house. His testimony was therefore based on personal knowledge. Hardin's opinions about the perpetrator's size and movements were founded on his ample experience as a tracker. He carefully explained how he had learned his craft, and the particulars of the methods he used. His perceptions in the field formed a rational basis for the inferences presented in his testimony.

Moreover, this evidence was found to be helpful by the court. Hardin's testimony established that there had only been one perpetrator and portrayed what had happened after the murder. It also provided a physical description consistent with that of the defendant. Hardin did not attempt to identify the defendant conclusively, but merely testified as to his findings in the field. In addition, his testimony was corroborated by a neighbor who heard a barking dog from the direction of the raspberry field and by the discovery of the murder weapon along the trail. These inferences could not have been made by the jury alone based on testimony which was limited to Hardin's sensory impressions. Instead, Hardin's opinions about the proper interpretation of the physical trail were a necessary aid to the jury. The court did not abuse its discretion when it admitted the evidence.

Moreover, the trial court's ruling can also be affirmed if the evidence is analyzed as expert testimony under ER 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The decision to admit expert testimony is within the discretion of the trial court. State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990), cert. denied, 111 S. Ct. 752 (1991). Expert testimony will be admitted when " '(1) the witness qualifies as an expert, (2) the opinion is based upon an explanatory theory generally accepted in the scientific community, and (3) the expert testimony would be helpful to the trier of fact.'" Swan, at 655 (quoting State v. Allery, 101 Wn.2d 591, 596, 682 P.2d 312 (1984)).

Hardin was clearly qualified to testify. Practical experience is sufficient to qualify a witness as an expert. State v. Smith, 88 Wn.2d 639, 647, 564 P.2d 1154 (1977). Hardin has extensive training and experience as a tracker. For 23 years, he has worked as a special agent with the United States Border Patrol as an expert tracker and as a trainer and instructor in his field. For 8 of those 23 years, he was stationed on the Mexican border. He has been qualified as an expert by National Search and Rescue, which requires 8,000 to 10,000 hours of experience, as well as the United States Border Patrol, the United States Marshall's Service, and the Federal Bureau of Investigation. Courts in California and Washington have previously recognized his expert status.

Hardin has direct experience tracking approximately 5,000 people. He was involved in a team organized by the United States Marshall's office to track Christopher Boyce. He was also called in to assist in the Green River murder investigation and was later proven to have made an accurate determination that a body had been disposed of 18 months earlier. He successfully tracked Martin Ray Baker after he shot a customs agent, despite Baker's training as a military special forces member and his ability to camouflage his trail.

Ortiz argues that Hardin's testimony was improperly admitted under the standard set forth by Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923). Testimony based on scientific experimental procedures is admissible only if the background theory or principle has achieved general acceptance in the scientific community. State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984) (citing Frye, at 1014). However, testimony which does not involve new methods of proof or new scientific principles from which conclusions are drawn need not be subjected to the Frye test. State v. Young, 62 Wn. App. 895, 906, 802 P.2d 829, 817 P.2d 412 (1991). Hardin's testimony was not based on novel scientific experimental procedures, but rather upon his own practical experience and acquired knowledge. Moreover, no particularized background knowledge would be necessary to an understanding of the evidence Hardin presented. The Frye test does not apply.

Further, the testimony was not so technical that a jury could not judge its reliability for itself. A videotape was shown which featured Hardin entitled "Tracking Awareness: The Art of Sign Cutting" to illustrate the methodology employed. Again and again, in his testimony and on the tape, Hardin emphasized that sign cutting, or tracking, is an acquired body of knowledge based on experience in the field. In addition, Hardin's testimony was subject to cross examination on the basis for his conclusions. By viewing the tape and listening to Hardin's testimony and cross examination, the jurors could form their own opinion about the reliability of his conclusions. It was for the jury to decide what weight should be attached to Hardin's testimony.

The evidence here meets the criteria for admissibility of expert testimony. Hardin was qualified to testify as an expert, the testimony was sufficiently reliable, and it was helpful to the jury. The testimony was properly admitted under either standard.

Premeditation

Ortiz argues that the State failed to establish sufficient evidence of premeditation necessary for aggravated first degree murder. State v. Bingham, 105 Wn.2d 820, 719 P.2d 109 (1986); RCW 10.95.020. The standard of review when examining a jury verdict in a criminal case is " 'whether, after viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Bingham, at 823 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)).

Premeditation must involve "more than a moment in point of time." RCW 9A.32.020(1).

Premeditation has been defined as "the deliberate formation of and reflection upon the intent to take a human life", State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982), and involves "the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short." Brooks, at 876.

State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987) (quoting State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217 (1982)). This court has previously adopted the view expressed in Austin v. United States, 382 F.2d 129, 139 (D.C. Cir. 1967), that, standing alone, multiple wounds and sustained violence cannot support an inference of premeditation. In Bingham, we held that there was not sufficient evidence of premeditation in a murder by strangulation. We reasoned that "to allow a finding of premeditation only because the act takes an appreciable amount of time obliterates the distinction between first and second degree murder." Bingham, 105 Wn.2d at 826.

In Ollens, however, we distinguished Bingham and held that there was sufficient evidence to find premeditation. Ollens, 107 Wn.2d at 853. We relied on four characteristics. In Bingham, the murder was committed by strangulation, which involves one continuous act, whereas in Ollens the victim was stabbed numerous times and, thereafter, the victim's throat was slashed. Second, in Ollens a knife was used, which required procurement of a weapon. Third, the victim was struck from behind. Fourth, there was evidence of a motive of robbery. Ollens, at 853.

Here, there are similar distinguishing characteristics. The killing was committed with a knife and multiple wounds were inflicted. Although the knife was procured on the premises, the jury could have found that the act of obtaining the knife involved deliberation. Moreover, the murder occurred in a bedroom, and not in the kitchen where the knife was found. The victim was struck in the face with something other than the knife. Finally, the defensive wounds found on the victim indicate a prolonged struggle. In light of all these factors, we hold that there was sufficient evidence to convict.

Lesser Included Offense Instruction

Ortiz argues that the jury should have been instructed on second degree murder. An instruction for a lesser included offense must be given by the trial court "when each element of the lesser included offense must be a necessary element of the offense charged, and when the evidence in the case supports an inference that the lesser included crime was committed." State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). The defendant must point to some evidence that would support an alternative theory on the lesser included offense and may not merely rely on the possibility that the jury could disbelieve the State's evidence. Fowler, at 67.

Premeditated murder in the first degree contains the following elements: (1) the defendant caused the death of the victim; (2) the defendant intended to cause the death; (3) the intent to cause the death was premeditated. RCW 9A.32.030. Aggravated first degree murder is premeditated murder in the first degree, which is accompanied by one or more of the statutory aggravating circumstances, one of which is that the murder was committed in the course of a rape. State v. Irizarry, 111 Wn.2d 591, 593-94, 763 P.2d 432 (1988); RCW 10.95.020.

Murder in the second degree contains these elements: (1) the defendant caused the death of the victim; (2) the defendant intended to cause the death of the victim, but without premeditation. RCW 9A.32.050. Since all the elements of second degree murder are also elements of first degree murder, the first prong of the Fowler test is met.

The second prong of the Fowler test was not met, however. There is no evidence to support an inference that second degree murder was committed. Fowler, at 67. It was unrefuted that a rape was committed. Moreover, the same person must have committed the rape and the murder, as evidenced by the footprints sealed in blood. Thus, at the very least, the crime that was committed was felony murder. Second degree murder is not supported by the evidence.

Ortiz argues that felony murder is not a lesser included offense of aggravated first degree murder. This is correct. There are three types of first degree murder — premeditated murder, murder by extreme indifference to human life, and felony murder. RCW 9A.32.030. Aggravated first degree murder, as explained above, is premeditated first degree murder plus an aggravating circumstance. The rape, in this instance, is not an element of the crime. Irizarry, at 594. Therefore, felony murder is not a lesser included offense of aggravated murder. Irizarry, at 595. Indeed, although the trial court did give the instruction for felony murder, it acknowledged that felony murder was not exactly a lesser included offense. The defendant did not object, however, and explicitly accepted the instruction. Moreover, the defendant was not convicted of felony murder but of the greatest possible offense. He cannot now complain that the instruction should not have been given.

Finally, the fact that felony murder is not a lesser included offense of aggravated first degree murder has no bearing on the question of whether the defendant was entitled to an instruction on second degree murder. Examination of the actual facts of this case shows that first degree murder, in one form or the other, was committed.

Excluded Evidence

Ortiz sought to have evidence admitted of another rape which had been committed in Lynden 6 months earlier. The victim there was also 77 years old and had been dragged from one room to another. She, too, was raped in her home, but managed to escape. The victim would have testified that Ortiz was not her assailant.

To introduce evidence that a similar crime was committed by a different person, the defendant must show a connection between the two crimes. State v. Mak, 105 Wn.2d 692, 716, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). Here, Ortiz submitted evidence that there were several general similarities between the 2 crimes, that it is rare for a woman over 65 to be raped, and that there had only been 3 rapes in Lynden in the past 20 years. The trial court did not abuse its discretion in refusing to admit the evidence, however, since there were also marked differences between the cases, including the murder of the victim. Absent a manifest abuse of discretion, we will not overturn the trial court's decision.

In sum, finding no error, we affirm the defendant's conviction.

Brachtenbach, Andersen, and Guy, JJ., concur.

1 The jury had discovered Ortiz' prior conviction, and the nature of the inadmissible statements which were the basis of the first appeal.

2 The fifth amendment to the United States Constitution provides in part: "No person shall ... be deprived of life, liberty, or property, without due process of law. . the Fourteenth Amendment provides: "nor shall any state deprive any person of life, liberty, or property, without due process of law . . .".

3 Justices Utter and Smith filed separate dissenting opinions on other issues.

4 In Wright, the court relied on United States v. Bryant, 439 F.2d 642, 644 (D.C. Cir. 1971), for the holding that a defendant's due process rights are violated when the prosecution fails to fulfill its duty to preserve evidence if there is a reasonable possibility that the evidence was material and favorable to the defendant. The Wright opinion does not cite any Washington law on the subject. Wright, at 788. In Vaster, the court stated explicitly that the duty to preserve evidence is derived from Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), which held that there is a duty to disclose exculpatory evidence under the due process clause. Vaster, at 49. The court also expressly adopted the federal standard expressed in United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Vaster, at 50.

5 The dissent's conjecture about Ortiz' mental state at the time the statements were made is totally baseless.

6 Initially, the State argues that Ortiz failed to object properly and, therefore, waived the right to raise the issue on appeal. Ortiz, however, did make a motion in limine to exclude Hardin's testimony, which was denied. Ortiz also made a motion to strike portions of Hardin's testimony. We have said that ”[u]nless the trial court indicates that further objections at trial are required when making its ruling, the party losing the pretrial motion is deemed to have a standing objection." State v. Koloske, 100 Wn.2d 889, 895, 676 P.2d 456 (1984). Thus, the objection was timely made.