SUPERIOR COURT OF THE STATE OF WASHINGTON

SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF OKANOGAN

HON. JUDGE ALLAN, PRESIDING

.
STATE OF WASHINGTON, . Okanogan County
. Cause No. 00-1-0026-8
Plaintiff, .
.
vs. .
.
LEAVELL, .
.
Defendant. .
................

TELEPHONIC SUPPRESSION HEARING

October 20, 2000

APPEARANCES:

FOR THE PLAINTIFF: RALPH PERKINS, Attorney

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 SUPERIOR COURT OF THE STATE OF WASHINGTON

FOR THE DEFENDANT: ROGER A. CASTELDA, Attorney

TRANSCRIPTION BY: PARRIS TRANSCRIPTS

P.O. BOX 5725
LYNNWOOD, WASHINGTON 98046-5725
(425) 672-4945

Proceedings recorded by electronic sound recording, transcript

produced by transcription service.
OKANOGAN, WASHINGTON
FRIDAY, OCTOBER 20, 2000, PROCEEDINGS BEGIN AT 8:35 A.M.
HONORABLE JUDGE ALLAN
(Court is Called to Order)
MR. PERKINS: Yes, Your Honor.
MR. CASTELDA: Yes, Your Honor.
THE COURT: You folks all in the one room then?

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MR. PERKINS: Yes, Your Honor.

THE COURT: Okay. All right. We were here for the
Court's decision on some of the remaining pretrial motions in
State versus Leavell. And I don't have the cause number handy
but I'm sure that the clerk has it. I guess it's 00-1-26-1
(sic).
And the issues that I have made notes to on related
to the use of any materials returning by law enforcement
officers using the EnCase software and then the issue of
whether the adult pornography and the coverage, I'll call it
child pornography for lack of a better term, could be allowed
to be used at trial.
We'll start with the EnCase motion and with regards
to that the defense has moved to exclude its testimony
contending essentially that it amounted to expert testimony
without the requisite foundation as to how it works that
EnCase was like an expert and that the defense was unable to
cross-examine that expert about the way that that software was
configured or developed. And argued also as I understood sort
of by the Fry (phonetic) that it didn't meet the Fry test.
And so I'll go through the various thoughts and
analysis that I have here. First of all, the Court disagrees
that EnCase is a quote unquote "expert" in a sense of I have
to say a person with computer expertise testifying or a
physician, or an accident reconstructionist, or any person
with special training of that sort, that the Court doesn't see
how an inanimate object in that sense can be considered to be
an expert.

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And in this case EnCase did not testify and rather

the state wishes to have a law enforcement officer testify
about certain facts in which he utilized EnCase.
And the Court used EnCase rather as a tool used by
the state's witness much like, but admittedly will be
different, but much like say a cassette tape player, a VCR, or
even the digital enhancing technique that was discussed in
State versus Haugen which is 90 Washington App 100. And I
don't recall whether either of you were arguing from that case
or that was one that the Court had come across independently.
So I'm not going to exclude the testimony based on
the fact that it's simply an expert that can't be cross-
examined, but the Court recognizes that it may be appropriate
to apply a Fry analysis to this particular tool to determine
whether, like the digital photo enhancing in State versus
Haugen, it could be considered.
And the Fry test of course is that it has to be a
general, scientific accepted or generally accepted in the
relative scientific community and there must be a valid
technique utilized. And I read from, oh I don't have the case
cite for that particular case, but I think that's been well
set forth in Washington law.
The evidence that the Court has here about EnCase is
as follows: That at least one Microsoft investigator, and I
can't remember his name offhand, uses EnCase for work doing
investigation for Microsoft. And the Court would I guess take
judicial notice of the kind of business that Microsoft is and
its position in the computer field. And so the Court has that

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in mind.
The evidence is also that the defense did not
dispute that what was found by the EnCase software actually
existed on Mr. Leavell's computer hard drive because certainly
expressed by the defense was whether it was complete, but
really a defense of whether it was complete or sort of
configured the same. But there was no suggestion, for
example, that ORG can become traveled or that pictures have
been say juxtaposed to create something that wasn't in a
victim's impact.
As I understood the defense expert actually had
utilized it, Mr. Tempest has utilized EnCase on occasion, but
then he also tries to affirm his findings through other
methods. The testimony also established that EnCase is used
by other law enforcement agencies as a process of retrieving
that so-called deleted data from a hard drive is not new. And
in fact the testimony was that it was -- the EnCase program
and other similar programs were commercially available to
people who wanted to recover things from their hard drive.
The (inaudible) was also Fry I want to say, I'm
forgetting who it was, Officer -- now what was the officer's
name --
MR. PERKINS: Murry?
THE COURT: -- with the computer guy?
MR. PERKINS: It was Richard Murry.
THE COURT: Murry?
MR. PERKINS: Yeah.
THE COURT: All right. Officer Murry is that he had

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tested this and had used it before to recover other deleted

files successfully. So as I look at that information and try
to apply that Fry standard to that, it seems to the Court that
there is in fact a generally-accepted theory in the relevant
peer community that one can in fact retrieve deleted data.
It's accepted by Mr. Simpson, by clearly Officer Murry, by
Microsoft, and that there exists a variety of techniques
available to do that easily in various programs that are
available.
Here, the Court is also persuaded that the use of
the EnCase is a valid technique for doing so. As I've
indicated the defense did not dispute that what was purported
to have been found on Mr. Leavell's hard drive is in fact
there on his hard drive and in particularly the EnCase program
which is one of it sounds like similar or numerous similar
programs.
The Court also found, the Court in the case cited by
the state that was the United States of America versus
Alexander Scott-Amukapor or Emuakpor, E-M-U-A-K-P-O-R, which
was the West Law cite used of 2000 in West Law, 288443. And
in that case, the Court was dealing in part with the retrieval
of data from a computer hard drive.
And the Court said in its decision on appeal,
"As the Court stated at oral argument, there is no
reason why either witness -- and these were I think
the law enforcement officers -- may not testify
about what they did in examining this computer
equipment and the results of their examination. The

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Court -- and before the Court at this time is not

limiting the witnesses have the expertise for
example to develop sophisticated software programs.
The question is whether they have the skill to find
out what is on a hard drive or a ZIP drive.
Apparently they have this skill because they
determined what was on the drive."
And I think that the state has asked that be quoted
from that section of the decision in its argument on this
matter.
So the Court will deny the defense's motion in
limine with regard to use of the EnCase program. Now we're
going to talk about the particular items in a minute here, but
the Court's ruling is that simply because the materials were
recovered by use of the EnCase program, it's not a basis to
exclude them from evidence in this matter.
The next issue was the admissibility of first of all
the adult pornography, and then secondly, the recovered
materials which are a list of sites that appear, in the
Court's view, that relate somehow to child pornography.
And again when I say the word "child pornography," I
recognize that that is not a legally, a legally-accurate
phrase, at least under one of the cases that was cited with
regard to one of the arguments here, I think with regard to
the search warrant. But so I'm using that not as a term of
art, but as a rough description of what we're talking about.
There were numerous cases that the Court looked at
in connection with this particular issue and I just want to

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mention some of that the Court made any decisions. One was
State versus Salterelly (phonetic), 98 Wa 2d 358, in which the
Court says that, well recognized the extreme prejudicial
effect that evidence of pornography may have on a jury and
reminded that in weighing the admissibility of such evidence,
the Court has to basically exercise particular care.
The Court at page 353 stated that,
"The careful and methodical consideration of
relevance in an intelligent way of potential
prejudice against probative value is particularly
important in sex cases where the prejudice
potential of prior acts is at its highest."
So that actually refreshes the Court's recollection
that was not some pornography, but was evidence of a prior
act. So the Court's got to be particularly careful. The
evidence has to be of course relevant, which means really
logically relevant to a material issue is how it was described
in Salterelly.
And for example, here I think it was the Salterelly
case that pointed out for example that the issue must be a
consequence. And they gave the example that if the evidence
that the state seeks to introduce goes to, for example, the
issue of intent, then it's not relevant if intent is not at
issue.
In Ramirez, State versus Ramirez, 47 Washington App
223, which was a 1986 case, the state sought to introduce
evidence of -- I'm trying to remember what it was; it's been a
little while since I've reviewed these cases since I thought

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we were going to do this last week -- I think it was to

introduce evidence of another issue of touching of another
little girl and the state was arguing that the evidence was
relevant to show an absence of mistake or accident.
And the Court held that "absence of mistake or
accident is not a material issue in the case, it is never a
material issue unless first raised by the defendant." Stating
another case, State versus Harris.
So the Court in that particular case seemed to be
saying that the state doesn't appear to get to bring in such
evidence until mistake or accident is raised as a defense.
In State versus Myers, which related to Washington
App 435, this is a 1996 case, this is a videotaping case. And
this was one where a gentleman videotaped clothed areas of
buttocks and genital regions of adult and children at a picnic
and then he found the videotape of his daughter in bathroom to
the vaginal area.
And he was arguing for a dismissal of the charges
because he said there was insufficient evidence that the Court
and the jury's verdict that he had derived sexual stimulations
from the videotaping of his daughter because sexual
stimulations cannot be inferred from the fact. And the Court
disagreed finding that the issue of whether a particular act
was done for the purpose of sexual stimulation could be
inferred or determined from the facts.
And that the Court viewed as somewhat relevant here
in light of the argument being made by the state. That same
holding was made in the State versus Ramirez case which I have

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referred to earlier. And in that particular case, the adult

unrelated male was alleged to have touched a girl. And the
Court heard that the jury may infer from the proof that the
touching was for the purpose of sexual gratification because
he was unrelated with no caretaking functions.
And I'll hopefully tie this altogether here now. In
this case, what the Court has been advised of is that with
respect to the adult pornography, the Court has not seen this
particular part of the evidence, but we discussed it when we
were last in court, that there is -- what would be tried is a
wide-range from what might be considered fairly I'd say
routine or tame of the nature that one might see in for
example a "Playboy" magazine, to some fairly graphic pictures
of pornography that I think that Mr. Castelda might have even
used the word "disgusting;" I'm not sure.
But there is no allegation by the state that any of
the adult pornography is illegal. And as the Court looks at
that, the Court believes that introduction of evidence of the
adult pornography would be marginally relevant at best. And
I'm sure that the state is hoping to introduce it perhaps to
show a tendency to look at these other pictures of these
little girls for a sexual purpose.
But in the Court's view as I look under the evidence
rule and weigh the potential prejudicial effect or probative
value that there would in fact be a substantial prejudicial
effect from the introduction of the adult pornography which
would far outweigh any probative value. There is little
similarity to any adult pornography which is admitted to be

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legal and any alleged depictions of minors of sexually

explicit conduct.
And so therefore the Court is going to exclude the
evidence of the adult pornography being used at the trial in
this matter.
Turning then to the issue which I understand is,
I've heard it described as child pornography, but clearly a
list of what appears to be websites or places that one can go
to look at pictures that may be criminal in nature, that is
they may be depictions of minors in sexually explicit conduct.
And that largely consists of texts.
But from what the Court has been provided here, it's
also small photographs that are interspersed with the text,
which again the Court has black-and-white copies of these, but
the Court is able to discern from the black-and-white copies
that they appear to be minors who are unclothed and in various
poses, some of them fairly explicit.
Certainly the Court would start by making a finding
that that evidence is likely to be highly prejudicial to the
defendant. The words used, even in the part of the text that
have no pictures, are they're fairly graphic descriptions of
intercourse, of (inaudible), there's profanity used, there are
slang words used that refer to sexual things. And the Court
believes that that would be highly prejudicial to the
defendant, even the part that contains no pictures.
So the question is then in the Court's view whether
this is relevant to show your intent which I think was the
word that the state used in the argument but seems really in

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part to go although to lack of mistake or accident. And I

think maybe the state had argued that also because there's
some suggestion about this chaining effect from these
pornography sites which was causing this to be loaded into
your computer without your knowledge.
First of all, to the intent issue, that is the
intent of Mr. Leavell possessing pictures of minors and
whether he has them for the purpose of sexual gratification or
stimulation, I can't remember the precise word -- let me just
look at the statue here -- I already got that handy. I'm just
looking at that right now. What is that? 968?
MR. PERKINS: 968(A).
THE COURT: Are you still there?
MR. PERKINS: Yes, Your Honor, it's at 968(A). I
don't have the exact section.
THE COURT: Okay. Here it is. I got it here.
Okay. For the purpose of sexual stimulation of the viewer.
So I think one of the arguments here was intent to show Mr.
Leavell's purpose in having that, some of those pictures, that
he's got these other stuff which describe explicit sexual
acts.
It may do that, but as the Court explained in
Ramirez, the jury could also infer the purpose simply from
looking at what the evidence is, what the photographs are. So
in the Court's view that's not a necessary part of the state's
case. The state's not precluded from establishing intent if
it doesn't get to get in this other material that we've been
describing here.

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The other issue that the state is arguing is lack of

mistake. And it seems clear to the Court from the cases that
I've talked about before, the Ramirez case and the, oh let's
see, Ramirez, I think it was primarily the Ramirez case, that
the issue of mistake or lack of mistake does not become
relevant to the proceeding unless it is raised by the defense.
So how the Court is coming down on this is the Court
believes and will find that the prejudicial effects of this
other material, this list of websites, is substantial and that
it outweighs the probative value, actually far outweighs the
probative value. And so the Court will not allow introduction
of that evidence in the state's case in chief.
Now if Mr. Leavell raises as a defense mistake or
accident in terms of having these other things and these other
pictures on his computer, then the state would entertain the
motion outside of the presence of the jury to bring this
evidence in to rebut that allegation of mistake or accident by
the defense.
So that would be the Court's ruling on those issues.
Are there any questions?
MR. PERKINS: Ralph Perkins for the state, Your
Honor.
THE COURT: Yes.
MR. PERKINS: And so, just so that we have a heading
here, that last issue the Court was addressing had to do with
the temporary Internet files?
THE COURT: That's right.
MR. PERKINS: Okay.

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THE COURT: And I think that was the way they were
referring to them during the testimony.
MR. PERKINS: In that case, Your Honor, the state
has no further questions.
MR. CASTELDA: The defense has no questions, Your
Honor.
THE COURT: The defense has no questions?
MR. CASTELDA: No questions, Your Honor.
THE COURT: Okay. All right. So then can I just
get an assessment of where we are. I don't know what we've
got in terms of a trial date at this point.
MR. CASTELDA: November 14th.
MR. PERKINS: November 14th I believe.
THE COURT: Okay. And so that's a, that's a go at
this point; correct?
MR. PERKINS: As of yet, Your Honor.
THE COURT: Okay. And Al, are you still there?
THE COURT ADMINISTRATOR: Yes, Your Honor.
THE COURT: Okay. I take it you'll just kind of be
in communication with Kathy about that?
THE COURT ADMINISTRATOR: Yes, I will, Your Honor.
THE COURT: Okay. All right. Well then I won't be
doing anything else until trial unless I'm hearing that there
are some additional things that need to be determined, all
right?
MR. PERKINS: Okay. Thanks, Judge.
MR. CASTELDA: Thank you, Your Honor.
THE COURT: Thank you, counsel.

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PROCEEDINGS CONCLUDED AT 9:00 A.M.

(Court is Adjourned)
**********

SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF OKANOGAN

HON. JUDGE ALLAN, PRESIDING

.
STATE OF WASHINGTON, . Okanogan County
. Cause No. 00-1-0026-8
Plaintiff, .
.
vs. .
.
LEAVELL, . Certificate
.
Defendant. .
.
................

STATE OF WASHINGTON
COUNTY OF OKANOGAN

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 SUPERIOR COURT OF THE STATE OF WASHINGTON

I, Gail Parris, a duly designated transcriber, do hereby

declare and certify under penalty of perjury that I have
transcribed the portion of audio tape which was duly recorded
in the Superior Court of the State of Washington, County of
Okanogan, on the 20th of October, 2000, in the above mentioned
case, and that the foregoing 15 pages comprise a true and
correct, accurate transcription of the aforementioned tape.

Dated this 7th day of November, 2000.

__________________________________________
Transcriber

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 SUPERIOR COURT OF THE STATE OF WASHINGTON

PARRIS TRANSCRIPTS
P.O. BOX 5725
LYNNWOOD, WASHINGTON 98046-5725
(425) 672-4945

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