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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE, ) No. 82138-5-I ) Respondent, ) DIVISION ONE ) v. ) PUBLISHED OPINION ) ROOSEVELT WIGGINS, ) ) Appellant. ) )
HAZELRIGG, J. — Roosevelt Wiggins moved pretrial to exclude testimony
from a Washington State Patrol (WSP) Crime Laboratory reviewer as to the
results of his blood draw, in the absence of testimony from the analyst who
conducted the tests on the blood sample. After two days of testimony from
experts for both the defense and the City of Seattle (City), the municipal court
granted his motion to exclude and then dismissed the misdemeanor charge of
driving under the influence (DUI) against Wiggins. The City appealed to the
superior court, but did not assign error to any of the findings of fact or conclusions
of law from the municipal court hearing. After reviewing the record, briefing of the
parties, and argument on appeal, the superior court supplanted the trial court’s
findings and conclusions with its own and reversed the municipal court.
Wiggins then petitioned for discretionary review to this court, which was
granted. Because the superior court erred both as to the procedural aspects of
the appeal under the Rules for Appeal for Decisions of Courts of Limited For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82138-5-I/2
Jurisdiction (RALJ) and as to its interpretation of relevant case law, we reverse
the superior court. Accordingly, we reinstate the municipal court’s rulings1 and
findings and conclusions resulting from the evidentiary hearing.
FACTS
In November 2017, Roosevelt Wiggins was pulled over for a head light
violation and was subsequently investigated on suspicion of DUI. After Wiggins
refused a request from the responding officer to submit to a breath test, the officer
obtained a search warrant for a blood draw. Pursuant to the warrant, two vials of
Wiggins’s blood were collected and sent to the WSP Crime Laboratory2 for drug
and alcohol analysis. Christie Mitchell-Mata is the forensic scientist who
performed the toxicology analysis of Wiggins’s blood. Mitchell-Mata’s work
included handling, preparing and testing the samples, interpreting the data in real
time, and running additional testing as necessary. Mitchell-Mata’s forensic
examination of the Wiggins sample produced a blood alcohol content (BAC) of
0.11g/100mL. After completing the testing and initial review process, Mitchell-
Mata prepared a final report of her results and conclusions.
The case proceeded to trial, but the City did not elect to call Mitchell-Mata,
asserting that she was unavailable to testify because she had left her employment
1 Based on its denial of the City’s motion to admit the toxicology results through the
reviewer, the court sua sponte dismissed the case against Wiggins without prejudice. Because we reinstate the municipal court’s ruling on admissibility and accompanying findings of fact and conclusions of law, that necessarily includes the February 1, 2019 dismissal order on which that admissibility ruling is memorialized. 2 The witnesses, and municipal and superior courts refer to the lab as the “Washington
State Patrol Toxicology Laboratory” throughout the record, but the WSP itself refers to the facility as the WSP Crime Laboratory (as they analyze DNA, fingerprint, and other forensic evidence outside the field of toxicology). See “Crime Laboratory - Washington State Patrol” http://wsp.wa.gov/forensics/crimlabs.htm.
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with the WSP Crime Lab and moved out of state.3 The City instead sought to
admit Mitchell-Mata’s report, specifically the BAC results, though Brian Capron,
who had signed the final report as the “reviewer.” The municipal court held a two-
day evidentiary hearing on the City’s motion to admit the blood results through
Capron. Wiggins argued that the motion should be denied based on his right to
confront Mitchell-Mata as the primary witness against him under the Sixth
Amendment to the federal constitution. Capron and defense expert Janine Arvizu
both testified at the hearing. The municipal court denied the City’s motion and
entered findings of fact and conclusions of law at the request of defense counsel.
The court ruled that admission of the analysis and results for Wiggins’s blood draw
through a WSP Crime Lab toxicology supervisor who did not perform the actual
testing would violate Wiggins’s constitutional right to confrontation. The court then
sua sponte dismissed the charge against Wiggins based on its ruling to exclude
the City’s proposed testimony.
The City sought review in King County Superior Court under the RALJ.
Both parties submitted briefing and argument on appeal; as the appellant, the City
did not assign error to any of the findings of fact or conclusions of law by the
municipal court and only challenged the ultimate ruling on admissibility of
Capron’s testimony. The appeal was transferred to another judge while it was
pending in the superior court. After reviewing the briefing and record of
3 Both the City’s motion to substitute Capron’s testimony for Mitchell-Mata’s and the transcript from the hearing on the motion are silent as to any efforts by the City to arrange for Mitchell-Mata’s return to Washington to testify. The municipal court did not make a finding regarding Mitchell-Mata’s availability.
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proceedings from the earlier RALJ argument, as well as the record on appeal, the
superior court judge reversed the municipal court’s ruling. This court granted
Wiggins’s petition for discretionary review, which noted the procedural defect of
the City’s appeal and further contended there is a need for clarification of state
case law on confrontation issues related to toxicology evidence. The second
argument was based on claims of inconsistent application in both courts of limited
jurisdiction and in superior courts sitting in their appellate capacity. A
commissioner of this court granted discretionary review and allowed briefing on
both issues.
ANALYSIS
I. RALJ 9.1
A key procedural aspect of this case is independently dispositive; the City
failed to challenge any of the municipal court’s findings of facts on appeal.
Therefore, they became verities which the superior court was required to accept
for purposes of the RALJ appeal. As Wiggins points out, the superior court in this
case improperly supplanted the unchallenged municipal court findings with its
own. RALJ 9.1(b) controls and provides in relevant part: The superior court shall accept those factual determinations supported by substantial evidence in the record . . . which were expressly made by the court of limited jurisdiction.
The City asserts that RALJ 9.1 does not require assignments of error similar to
the Rules of Appellate Procedure (RAPs) and says it merely “stands for the
proposition that the Superior Court is not required to accept a factual finding that
is not supported by the record.” This is incorrect. Our state’s highest court has
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been explicitly clear in reinforcing the importance of the superior court’s
adherence to the standard of review on RALJ appeal, which necessarily includes
RALJ 9.1(b), stating, “[i]t is not within the Superior Court’s scope of review to
examine the evidence de novo.” State v. Basson, 105 Wn.2d 314, 317, 714 P.2d
1188 (1986). When we grant discretionary review of a RALJ decision by the
superior court, we “sit[] in the same position as the [prior] court in the review of
the [municipal] court decision.” State v. Weber, 159 Wn. App. 779, 787, 247 P.3d
782 (2011).
In Basson, the Supreme Court reversed a superior court’s order on RALJ
and reinstated the district court’s findings because the superior court had
erroneously conducted a de novo review of a suppression hearing and the district
court’s findings were supported by substantial evidence. 105 Wn.2d at 315, 317.
Basson clarified that the superior court’s scope of review when sitting in its
appellate capacity on RALJ did not permit de novo examination of the evidence.
Id. at 317. “We review the record before the district court, reviewing factual issues
for substantial evidence and legal issues de novo.” State v. Rosalez, 159 Wn.
App. 173, 178, 246 P.3d 219 (2010). “Substantial evidence is evidence sufficient
to persuade a fair-minded, rational person of the finding's truth.” State v. Stewart,
12 Wn. App. 2d 236, 240, 457 P.3d 1213 (2020). We treat unchallenged findings
of fact as verities on appeal. Id. If substantial evidence supports the findings, a
reviewing court will not substitute its judgment for that of the trial court even
though it might have resolved a dispute of fact differently. Matter of Custody of
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A.T., 11 Wn. App. 2d 156, 162, 451 P.3d 1132 (2019). By contrast, de novo
review permits the appellate court to consider the rulings without deference to the
trial court’s legal conclusions. See Coogan v. Borg-Warner Morse Tec Inc., 197
Wn.2d 790, 812, 490 P.3d 200 (2021) (explaining de novo review as compared
to other appellate standards).
Had the City assigned error to any of the findings or conclusions from the
municipal court, the superior court would have been tasked with reviewing the
record for the sole purpose of determining whether they were supported by
substantial evidence. Basson makes clear that under no circumstances should it
have engaged in de novo review of the evidence from the trial court. The superior
court improperly ignored the municipal court’s findings and entered its own,
despite the fact that the City failed to assign error to any of them on RALJ. We
rely on the municipal court’s unchallenged factual findings in conducting our
review. See Glaefke v. Reichow, 51 Wn. App. 613, 616, 754 P.2d 1037 (1988)
(rejecting the assertion that the superior court may ignore the district court’s
factual determinations, and remanding for further proceedings consistent with
RALJ 9.1). While the City argues in briefing that assignment of error to particular
findings “is not required by the RALJ rules,” at oral argument the prosecutor
conceded that they have personally argued in other cases that unchallenged
findings are verities on appeal.4 The City’s admission at oral argument is
consistent with case law, its argument in briefing is not.
4 Wash. Ct. of Appeals oral argument, City of Seattle v. Wiggins, No. 82138-5-I (July 19,
2022), 9 min., 10 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/watch/?eventID=2022071051
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In light of this clear precedent, the superior court erred by conducting de
novo review of the evidence. On discretionary review, we sit in the same capacity
as the original reviewing court and, accordingly, accept the unchallenged findings
and conclusions as true. The record before us clearly demonstrates that the
municipal court’s findings are supported by substantial evidence. The trial court
necessarily engaged in credibility determinations as to both Capron’s and Arvizu’s
testimony. Capron explained his review of Mitchell-Mata’s work and asserted he
could form an independent opinion based on her results. Arvizu testified about
the critical role played by the original forensic analyst, noting it is this person who
would be most likely to cause an error leading to inaccurate results, and, perhaps
most significantly, concluded that it is this individual who establishes the
inculpatory fact of the BAC level. The municipal court ultimately credited Arvizu’s
testimony over Capron’s as to what constituted “raw data” in this case and who
connected the inculpatory evidence to Wiggins. We will not disturb such credibility
determinations on appeal, nor will we reverse findings of fact if they, as here, are
supported by substantial evidence.
Pursuant to the precedent from our Supreme Court in Basson, we reverse
the order on RALJ from the superior court and reinstate the findings of fact and
conclusions of law issued by the municipal court, as well as the accompanying
rulings.
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II. Confrontation Clause
As noted above, the procedural defects in the City’s appeal alone are
dispositive. However, the superior court also erred in the application of relevant
case law on this issue in deciding the RALJ appeal. In briefing on Wiggins’s
petition for discretionary review, the parties addressed claims of inconsistent
application of this body of case law in courts of limited jurisdiction and superior
courts on review. Accordingly, we are presented with an opportunity to clarify the
application of confrontation clause jurisprudence to toxicology evidence.
In ruling on the petition, a commissioner of this court determined review
was appropriate under RAP 2.3(d). The relevant portion of the rule reads: Discretionary review of a superior court decision entered in a proceeding to review a decisions of a court of limited jurisdiction will be accepted only: … (2) If a significant question of law under the Constitution of the State of Washington or of the United States is involved; or (3) If the decision involves an issue of public interest which should be determined by an appellate court.
Our commissioner expressly noted that review was “appropriate based on lower
courts’ apparently inconsistent applications of [State v.]Lui.”5
Pursuant to that ruling, we turn to the question of whether admission of the
toxicology results of Wiggins’s blood testing through the reviewer would have
violated his right to confrontation. The record demonstrates that the reviewer in
this case did not add any original analysis to the work of the primary forensic
scientist to render the evidence inculpatory against Wiggins. As such, the
5 179 Wn.2d 457, 315 P.3d 493, cert denied, 573 U.S. 933 (2014).
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municipal court did not err in concluding that admission of the reviewer’s
testimony, in place of that of the primary analyst, would violate Wiggins’s right to
confrontation.
The accused in a criminal case has the right to confront “the witnesses
against him.” U.S. CONST. amend VI; W ASH CONST. art. I § 22. The confrontation
clause is relevant when a witness is unavailable. State v. Ramirez, 7 Wn. App.
2d 277, 283, 432 P.3d 454 (2019). This court reviews confrontation clause issues
de novo. State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012). Our Supreme
Court has implemented a two-part test “to determine whether the lack of testimony
from a witness who assisted in the preparation of forensic evidence testing
implicates the confrontation clause.” Ramirez, 7 Wn. App. 2d at 283. In Lui, the
state Supreme Court held an expert’s testimony is within the scope of the
confrontation clause only if (1) the individual is a “‘witness’ by virtue of making
statements of fact to the tribunal” and (2) the individual is a witness “‘against’ the
defendant by making a statement the tends to inculpate the accused.” 179 Wn.2d
at 462. “Even if a witness imparts facts to the court, the witness is not a witness
‘against’ the defendant unless those facts are adversarial in nature and have
‘some capacity to inculpate the defendant.’” Ramirez, 7 Wn. App. 2d at 284
(quoting Lui, 179 Wn.2d at 480-81).
Based on the testimony presented by the experts at the evidentiary hearing
and the resulting unchallenged factual findings, it is clear that Mitchell-Mata, not
Capron, was the necessary witness against Wiggins because she was the analyst
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who actually performed the blood test that created the incriminating evidence
against him. The relevant findings from the municipal court establish key facts for
our review: 2. Forensic Toxicologist, Christie Mitchell-Mata, ran the testing on the blood vials. 3. The testing revealed the defendant’s blood to have .11g/100mL of ethanol. 4. Brian Capron was the reviewing toxicologist and did not perform any of the testing on the blood vials. 5. Brian Capron was not present when Christie Mitchell-Mata performed the testing.
These findings are amply supported by the testimony which was heard over the
course of two days. As noted in the conclusions of law, there are numerous
“subjective and human factors” that existed when the testing was being performed
and Capron did not observe Mitchell-Mata perform the testing. Most critically, the
trial court noted “Brian Capron did not give additional meaning to the ‘raw data[.]’”
This is what distinguishes Capron from the experts in both Lui and Ramirez; those
experts each engaged in direct analysis of raw data to reach the inculpatory
conclusion to be presented in the trial court.
Capron’s own testimony demonstrates that he did not engage in the sort
of independent inquiry required by the case law in order to permit his testimony
as the inculpatory witness against Wiggins. The following passage from Capron’s
testimony in the municipal court establishes that he played an, admittedly
important, but ultimately minor role in Wiggins’s case: Everything is peer reviewed. So when testing is conducted, it is generated. The primary analyst will then look through it. And then they’ll submit it for review. So there’s that review process.
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So in this case she had two separate alcohol tests, so two separate sets of data had to be submitted and then reviewed. She had a (inaudible) that needed to be reviewed, and then she had some additional testing that needed to be reviewed. So she had at least four different tests that had to be submitted for review before she could even produce her final report. At that point in time, then the final report is produced. And so then I grab this case, and then I go though, and I do a review again.
Capron went on to testify that he did not perform any of the tests on Wiggins’s
blood, nor did he go back and retest the blood after Mitchell-Mata left her
employment at the WSP Crime Lab and was no longer available to testify. Capron
was clear on direct examination that he merely signed off that he “reviewed the
data that [Mitchell-Mata] generated[.]” Wiggins’s defense attorney later noted in
argument that, prior to testifying, Capron had not signed the report under penalty
of perjury. In fact, Capron testified he would never certify a report under penalty
of perjury in his capacity as a reviewer because only the person “who actually
performed the work can attest to the fact that that was done.” Capron was clear
that his role was simply to review Mitchell-Mata’s work; it is her work and resulting
report which provide the inculpatory statements against Wiggins.
The defense expert, Arvizu, works as an auditor in the field of
measurement quality and has previously audited the WSP Crime Lab. She
testified to numerous aspects of blood testing for the presence of drugs and
alcohol where the analyst directly performing the tests makes discretionary
decisions, in addition to simply following proper procedures necessary to ensure
accuracy. Arvizu explained that the person preparing the samples for the gas
chromatography process is actually the “biggest issue” as far as potentially
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inaccurate testing or invalid results. She further testified that the preparation of
the samples for analysis is the most time-consuming aspect of blood testing for
drugs and alcohol. Arvizu indicated that the person who is actually performing
the test is “essential” in reaching the results or data produced.
The testimony adduced at the evidentiary hearing supported the findings
of fact underpinning the conclusion that Mitchell-Mata was the witness providing
the inculpatory statement with regard to the BAC results against Wiggins. The
circumstances here are distinct from the context of DNA analysis which
necessarily involves two stages of processing; DNA testing that results in
individual profiles, and the comparison of those profiles developed from collected
samples to establish a match to the accused. See Lui, 179 Wn.2d at 488-89. In
DNA profile matches like Lui, it is the latter that drives the inculpatory statement
against the accused. Id. The Lui court focused on the fact that it was only once
the comparison of the DNA profiles began that “any element of human decision-
making enter[s] the process.” Id. at 488. The court determined that the
comparison itself is where “the necessary inculpatory element enters the
equation” and that, alone, the DNA profile developed by the other analysts
provided nothing inculpatory. Id. at 488.
It is notable that Lui contrasted the question of DNA profile analysis with
the toxicology reports at issue in two United States Supreme Court opinions,
Bullcoming v. New Mexico6 and Melendez–Diaz v. Massachusetts.7 Id. at 488-
6 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).
7 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
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89. Ramirez also reinforced this same distinction as to whether the data alone
was inculpatory (by running the BAC test), as opposed to the conclusions from
the necessary comparison or analysis of the data. 7 Wn. App. 2d 277. In
Ramirez, this court concluded that it was the detective’s comparison of the
cellphone data which resulted from extraction to connect Ramirez to his co-
defendant which resulted in the inculpatory statement. Id. at 285-86. The data
report itself was not inherently inculpatory. Id.
The BAC number attributed to Wiggins’s blood is the inculpatory statement
against him. There was no further analytical work or comparison needed once
the BAC was established by Mitchell-Mata. Capron testified that he added
nothing to Mitchell-Mata’s work; he merely conducted a five- to ten-minute review
of her report for general accuracy and typographical errors. Here, we are also
guided by the analysis and holding set out by the United States Supreme Court
in Bullcoming concerning BAC reports as testimonial statements against an
accused. 564 U.S 647, 664-65, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).
Bullcoming reinforced that the analyst who conducts the testing is the witness that
is making the statement against the accused, stating “[l]ike the analysts in
Melendez-Diaz, analyst Caylor tested the evidence and prepared a certificate
concerning the results of his analysis.” Id. at 665. On this record, the City could
only call Mitchell-Mata in order to introduce the BAC results as the inculpatory fact
against Wiggins because those results were based exclusively on her testing. We
note that the City acknowledged at oral argument that the record indicates there
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was no attempt to re-test Wiggins’s blood once it became clear that Mitchell-Mata
would be unavailable to testify at trial.8
Finally, the evidence contained in the record from the trial court amply
supports the unchallenged findings. During the two-day hearing, Capron testified
that he conducts a roughly five- to ten-minute review of the analyst’s work, which
includes checking for clerical errors in the final report. This is unlike Mitchell-Mata,
who tested and analyzed Wiggins’s blood several times over the span of a few
weeks. As the defense expert testified, there were numerous discretionary
decisions made by Mitchell-Mata during the testing process in order to reach the
BAC number which the State sought to utilize in proving its case against Wiggins.
Therefore, Mitchell-Mata is the witness “against” Wiggins who could then testify
to facts concerning his BAC, which are necessarily subject to scrutiny from the
defense via confrontation. As Wiggins also points out, it is telling that Capron
testified at the evidentiary hearing that the quantity of ethanol, “was reported as a
.11,” which further suggests he was appropriately careful not to claim that result
as his own work product, given the limited nature of his role in the case.
8 The prosecutor further asserted that in other cases, they had personally called forensic
scientists as witnesses who were in no way involved in the initial analysis or report review and had utilized those otherwise uninvolved witnesses to look over the data and testify in court about the results. While we can envision factual scenarios where such a practice may not be inconsistent with a defendant’s right to confrontation, this record does not support that approach in light of how the data was generated and the role of the government’s proposed witness. Wash. Ct. of Appeals oral argument, City of Seattle v. Wiggins, No. 82138-5-I (July 19, 2022), 13 min., 45 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/watch/ ?eventID=2022071051
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We reverse the superior court and reinstate the findings of fact and
conclusions of law entered by the municipal court, its ruling excluding Capron’s
testimony, and the accompanying dismissal order.
Reversed.
WE CONCUR:
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