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Full Opinion
FILED
JULY 9, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 39574-0-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
NATHAN O. BEAL, )
)
Appellant. )
PENNELL, J. — Nathan Beal appeals his conviction for first degree murder, arguing
the trial court abused its discretion by admitting ballistics comparison testimony without
first conducting a Frye 1 hearing. He also challenges the trial court’s imposition of a $500
crime victim penalty assessment. We reject Mr. Beal’s challenge to his conviction, but
agree to strike the penalty assessment.
1
Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
No. 39574-0-III
State v. Beal
FACTS
On the morning of April 3, 2020, police responded to a report of a dead body
found in an alleyway in downtown Spokane. The decedent was identified as Andrew Bull,
a homeless man who had lived nearby. Mr. Bull had been shot one time in the head.
Police recovered a single Winchester 9mm luger shell casing and a 9mm bullet from the
alley. Surveillance footage identified a suspect walking into and out of the alley, but
police were unable to identify the suspect from the video. However, they were able to see
that the suspect walked with a “distinct[ive]” “duck walk” where it “appeared his left foot
was a little bit further canted out.” 1 Rep. of Proc. (RP) (Jan. 25, 2023) at 371.
Months later, police were searching Nathan Beal’s apartment on a separate matter 2
and located a 9mm Ruger semiautomatic pistol and Winchester 9mm luger ammunition.
When questioned, Mr. Beal denied owning a firearm. The police observed Mr. Beal’s gait
was similar to the suspect captured on the surveillance video, including the same “duck
walk with the left foot pointed out a little bit further.” Id. at 388.
A subsequent search of Mr. Beal’s mobile phone revealed he had searched the
terms “‘Murder Spokane,’” “‘Spokane murder rate,’” and “‘Spokane homicide rate’”
2
This involved the murder of Mr. Beal’s ex-wife. Mr. Beal was convicted of the
murder of his ex-wife in a trial that predated the current proceedings. During the current
proceedings, the trial judge excluded evidence referencing the murder of Mr. Beal’s wife.
2
No. 39574-0-III
State v. Beal
during May and July 2020. It was later discovered that the firearm found in Mr. Beal’s
apartment was registered to Christina Brewer. She had previously dated Mr. Beal, and
explained she bought the firearm for him with his money, but that he insisted she register
the firearm under her name.
Mr. Beal’s latent fingerprint and DNA were located on the firearm. A forensic
scientist named Brett Bromberg-Martin conducted a ballistics comparison analysis of
the bullet and shell casing recovered from the crime scene and compared them with
ammunition test-fired from Mr. Beal’s gun. Mr. Bromberg-Martin opined that the bullet
and shell casing found at the scene had been fired from Mr. Beal’s gun. His analysis was
confirmed by an independent peer review.
The State charged Mr. Beal with first degree murder. Pretrial, Mr. Beal moved to
exclude the State’s ballistics testimony or, in the alternative, requested a Frye hearing to
determine its admissibility. The entirety of Mr. Beal’s motion read as follows:
12. Motion to prohibit expert testimony regarding a ballistics match, or
in the alternative for a Frye hearing to be held.
The Frye test is used to determine the admissibility of expert
opinions and scientific evidence. Even though the test is no longer used in
federal courts it continues to retain vitality and applicability in Washington.
State v. Cauthron, 120 Wn.2d 879, 886, 846 P.2d 502 (1993); State v.
Riker, 123 Wn.2d 351, 869 P.2d 43 (1994); State v. Copeland, 130 Wn.2d
244, 922 P.2d 1304 (1996). The Frye test is a threshold inquiry to be
considered in determine [sic] the admissibility of evidence under ER 702.
3
No. 39574-0-III
State v. Beal
State v. Riker, 123 Wn.2d at 360 footnote 1.
The Frye test requires that for an expert opinion to be admissible,
the court must find that the scientific principles and methodology from
which the opinion is derived are generally accepted in the relevant scientific
community. Id. at 359. “The core concern of Frye is only whether the
evidence being offered is based on established scientific methodology,
both an accepted theory and a valid technique for implementing that theory”
State v. Cauthorn, 120 Wn.2d at 887. The reason the Frye test is utilized
is because jurors are often so “mesmerized” by scientific principles and
experts, they are more susceptible to being confused, misled, or unduly
prejudiced by scientific than by other types of evidence.
In this case, The State seeks to introduce expert testimony at trial
from Washington State Patrol’s firearms examiner, Brett Bromberg-Martin.
He examined the casings and bullets found in this case and compared them
to the firearm that was found in Mr. Beal’s apartment. In his report, he
concluded that the casings and bullets matched the firearm that was found
in Mr. Beal’s residence. Defense challenges the expert opinion that they
were unquestionably fired from the same firearm and that they can be
excluded from all other firearms.
Clerk’s Papers (CP) at 27-28. The State countered Mr. Beal’s motion by noting Division
One of this court had recognized the admissibility of ballistics comparison testimony
under Frye in State v. DeJesus, 7 Wn. App. 2d 849, 436 P.3d 834 (2019).
When arguing Mr. Beal’s motion in limine to the court, defense counsel indicated
she had included the motion “[f]or appeal purposes.” 1 RP (Jan. 19, 2023) at 54. She
elaborated on her written motion as follows, “There are some defense attorneys in the
state of Washington, I’ve noticed, that have been trying to bring these motions. Because
they are subjective tests, that’s really the nature of it. And so I would ask the Court to
4
No. 39574-0-III
State v. Beal
grant the motion in limine.” 1 RP (Jan. 23, 2023) at 102. Defense counsel did not
make any further arguments and never requested specific wording regarding ballistics
testimony. The trial court denied Mr. Beal’s motion in limine and request for a Frye
hearing on the basis of DeJesus.
The case proceeded to trial. At trial, Mr. Bromberg-Martin testified that, pursuant
to his ballistics analysis, the shell casing and bullet found at the murder scene were
“identified as being fired by that Ruger pistol” found in Mr. Beal’s apartment. 2 RP
(Jan. 25, 2023) at 536. On cross-examination, Mr. Bromberg-Martin conceded that his
conclusions were “subjective” based on his “professional opinion.” Id. at 440. On re-
direct, the prosecutor asked Mr. Bromberg-Martin if there was “any doubt” in his mind
regarding his opinion. Id. at 545. Mr. Bromberg-Martin responded, “I would only put a
conclusion in the lab report if I was confident about my conclusions and also if my
various reviewers agreed with that as well.” Id. at 545-46.
In explaining the basis for his testimony, Mr. Bromberg-Martin testified that Ruger
pistols have been subject to a substantial amount of forensic study. He cited a controlled
study from 2020 that showed ballistics identifications of Ruger pistols had an “extremely
low error rate.” Id. at 556.
5
No. 39574-0-III
State v. Beal
The jury convicted Mr. Beal of first degree murder with a firearm enhancement.
At sentencing, the trial court found Mr. Beal to be indigent, sentenced him to 421 months’
confinement, and imposed a $500 crime victim penalty assessment (VPA).
Mr. Beal now appeals his conviction and sentence.
ANALYSIS
Frye hearing
Mr. Beal asserts the trial court erred in admitting Mr. Bromberg-Martin’s expert
testimony. Specifically, he claims that ballistic identification evidence does not meet the
Frye test for admissibility of novel scientific theories. Frye v. United States, 54 App. D.C.
46, 47, 293 F. 1013 (1923).
A trial court’s decision on whether to admit evidence under Frye is reviewed
de novo. State v. Gregory, 158 Wn.2d 759, 830, 147 P.3d 1201 (2006). The Frye test
involves assessing the admissibility of novel scientific evidence. “Evidence not involving
new methods of proof or new scientific principles is not subject to examination under
Frye.” State v. Pigott, 181 Wn. App. 247, 249, 325 P.3d 247 (2014).
Division One’s 2019 decision in DeJesus held that ballistic identification
testimony meets Frye’s general acceptance test. 7 Wn. App. 2d at 865. Mr. Beal has
not identified any subsequent authorities disagreeing with DeJesus or new methods of
6
No. 39574-0-III
State v. Beal
analysis that might undermine the analysis set forth in that decision. Nor has Mr. Beal
pointed to case law from anywhere in the country excluding ballistic identification
testimony under the Frye standard. Given this record, the trial court appropriately
overruled Mr. Beal’s objection to the ballistics testimony without first holding a
Frye hearing.
On appeal, Mr. Beal appears to argue that regardless of the general acceptance of
ballistics evidence, Mr. Bromberg-Martin should not have been allowed to testify that the
bullet and casing obtained from the crime scene matched the gun found at Mr. Beal’s
house. This argument goes to the form of Mr. Bromberg-Martin’s opinion testimony, not
the general acceptance of ballistics identification methodology as contemplated by Frye.
See State v. Green, 182 Wn. App. 133, 149, 328 P.3d 988 (2014).
Mr. Beal never preserved an objection to the form of Mr. Bromberg-Martin’s
testimony. Mr. Beal could have argued that Mr. Bromberg-Martin should have been
precluded from stating his testimony in unqualified terms. See Williams v. United States,
210 A.3d 734, 742 (D.C. 2019) (Regardless of general admissibility of ballistic
identification testimony, “empirical foundation does not currently exist to permit [ballistic
identification] examiners to opine with certainty that a specific bullet can be matched to a
7
No. 39574-0-III
State v. Beal
specific gun.”). 3 If Mr. Beal had made this argument, the trial court might have limited
the scope of the testimony. But the trial court was never afforded the opportunity to assess
concerns regarding the form of Mr. Bromberg-Martin’s opinion testimony. We will not
assess this issue for the first time on appeal. See RAP 2.5(a).
VPA
Mr. Beal contends we should remand with instructions to strike the VPA from his
judgment and sentence. The State concurs.
Former RCW 7.68.035(1)(a) (2018) required a VPA be imposed on any individual
found guilty of a crime in superior court. In April 2023, the legislature amended this
statute to prohibit the imposition of the assessment on indigent defendants. The statutory
amendments took effect on July 1, 2023. The amended statute applies prospectively to
cases pending on direct appeal that are not yet final. State v. Ellis, 27 Wn. App. 2d 1, 16,
530 P.3d 1048 (2023).
Mr. Beal is indigent. The VPA must therefore be struck from his judgment and
sentence. Resentencing is not required.
3
Williams was decided in the context of Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which governs the test for
admissibility of expert testimony in federal court. Washington courts have not adopted
Daubert’s reliability test. Nevertheless, insights from cases decided under Daubert may
be relevant to assessing the proper scope of expert testimony under ER 702 and 403.
8
No. 39574-0-III
State v. Beal
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Beal brings two additional claims in a pro se statement of additional grounds
for review. First, he contends a Brady 4 violation occurred where the ballistics pictures
that show the marks on the cartridge from the crime scene did not match those from the
gun found in his apartment were never provided to the defense. Second, he argues that he
does not have a particular walk or gait and, therefore, the trial court should not have
admitted testimony on this issue.
The record fails to support Mr. Beal’s Brady argument. Mr. Beal never raised a
Brady issue during the trial court proceedings. He complains about photographs included
in the State’s PowerPoint presentation, but those photographs are not part of the record on
review. If Mr. Beal has admissible evidence showing a Brady violation, he can seek relief
through a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 899
P.2d 1251 (1995).
Mr. Beal failed to preserve an objection to testimony regarding his gait in the trial
court. We therefore will not engage in appellate review of this claim. See RAP 2.5(a).
As part of his argument regarding his gait, Mr. Beal seems to contend that the trial
court should have admitted other suspect evidence regarding his neighbor who had a
4
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
9
No. 39574-0-III
State v. Beal
similar gait.
Other suspect evidence will be admissible at trial if it is relevant and not overly
prejudicial. State v. Franklin, 180 Wn.2d 371, 378-79, 325 P.3d 159 (2014). Relevance is
established if proffered evidence tends to connect someone other than the defendant with
the crime. Id. Mere speculation does not meet this standard. State v. Thomas, 150 Wn.2d
821, 857, 83 P.3d 970 (2004). A trial court’s decision to exclude other suspect evidence is
reviewed for abuse of discretion. Id. at 856.
Here, the fact that Mr. Beal’s neighbor purportedly had a gait similar to the
individual depicted in the surveillance video was too speculative to support the admission
of other suspect evidence. Unlike what was true of Mr. Beal, there was no other evidence
connecting the neighbor to Mr. Bull’s murder. Furthermore, the State presented evidence
that it ruled out Mr. Beal’s neighbor because it had connected Mr. Beal to Mr. Bull’s
murder through evidence gathered during its investigation of the murder of Mr. Beal’s
ex-wife. If Mr. Beal had introduced evidence regarding his neighbor, it would have
opened the door to extremely prejudicial evidence regarding Mr. Beal’s conviction for the
murder of his ex-wife. The trial court did not abuse its discretion in excluding the other
suspect evidence.
10
No. 39574-0-111
State v. Beal
CONCLUSION
The judgment of conviction is affirmed. This matter is remanded for the limited
purpose of striking the VPA from Mr. Beal's judgment and sentence. Resentencing is not
required.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
~.Q-
Pennell, J.
WE CONCUR:
Staab, J.
11
Case Information
- Court
- Wash. Ct. App.
- Decision Date
- July 9, 2024
- Status
- Precedential