Prosecutors won’t appeal judge’s decision in homicide case

EVERETT — Snohomish County prosecutors announced earlier this week they won’t appeal a judge’s decision tossing out a jury’s guilty verdict in a controlled substance homicide case.

In a unique post-trial ruling, Superior Judge Linda Krese concluded there wasn’t enough evidence presented to prove beyond a reasonable doubt that Gabrielle Waller was responsible for Ian Digre’s overdose death.

A Snohomish County jury had convicted Waller of controlled substance homicide, agreeing with the prosecutor’s theory that Waller sold Digre the heroin that killed him.

Digre’s body was discovered in a car parked in a Marysville cul-de-sac March 19, 2016. Marysville police detectives recovered text messages between the two setting up the drug deal the night before. Waller later told police that after injecting the heroin Digre nodded off. Waller “freaked out” and poured water on him and slapped him, according to court records. He made some noises so she grabbed $20 from his wallet and fled.

Dr. Stanley Adams, the county’s assistant medical examiner, concluded that Digre, 35, died from a mixture of drugs, including heroin and methamphetamine. But Adams testified that he couldn’t say if it was the heroin alone that caused the fatal overdose.

There was no evidence that Waller sold or gave Digre meth.

Krese in her ruling pointed to the doctor’s testimony as the basis for her ruling.

“Dr. Adams and the toxicologist both testified that there was no way to determine the order in which these drugs were ingested,” Krese wrote.

“It is entirely plausible that methamphetamine, taken either before or after the heroin delivered by Ms. Waller, was the sole cause of death in this case,” she added.

Public defenders Rob O’Neal and Jennifer McIntyre had argued that point before the case went to the jury in January. Krese declined to dismiss the charge then and allowed the jury to deliberate. Waller, 30, was convicted and faced more than five years in prison.

The defense attorneys renewed their argument after the verdict, saying prosecutors failed to prove a material element of the crime. Krese agreed with the public defenders and tossed out the verdict.

Snohomish County deputy prosecutors in the appeals unit reviewed the judge’s ruling. They weighed their chances in overturning Krese.

“While the State disagrees with the decision to dismiss the charge, after careful review of the evidence the State believes that the court acted within its discretion and therefore will not appeal the court’s decision,” Snohomish County deputy prosecutor Kathy Webber told The Daily Herald earlier this week.

Waller didn’t get off scot-free, however. Krese concluded there was enough evidence to convict the defendant of delivery of a controlled substance, a felony. The judge sentenced Waller to just under two years in prison.

Controlled substance homicide has been on the books for years, but isn’t often charged because it can be difficult to trace the source of the drugs. Snohomish County deputy prosecutors have pursued cases in the past.

A Snohomish County jury convicted a teenager of controlled substance homicide in 2008 in connection with the Ecstasy overdose death of 16-year-old Danielle McCarthy in Edmonds. A Mountlake Terrace man was sentenced in 2011 to eight years in prison for providing the heroin that killed 18-year-old Bridgette Johns.

Marysville police Sgt. Jeff Franzen told The Daily Herald last year that Digre’s death was the first controlled substance homicide case his department had been able to refer to prosecutors.

He said often when police arrive at a fatal overdose no one is around and no witnesses step forward.

Police were told Digre had used heroin and meth in the past. His family believes he had been drug-free for several months before the night he died.

Digre’s family was unhappy with Krese’s ruling, saying that Waller wasn’t being held responsible for the full extent of her actions.

She could have called 911 and saved his life, said Digre’s mother. Jude Digre.

Heroin and other opiates slow the body’s respiratory system and some people simply stop breathing. Police in Snohomish County now carry naloxone, better known as Narcan, a prescription medication to reverse the effects of an opioid overdose. There have been dozens of saves by law enforcement officers.

Diana Hefley: 425-339-3463;

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