IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal No. 72685-4-1 Restraint Petition of
BRANDON JOSEPH EARL, UNPUBLISHED OPINION
Petitioner. FILED: April 4, 2016 ^
Verellen, J. — A forensic scientist's disciplinary records support a motten 0o -3>J! re fer new trial only ifthe newly discovered evidence would probably change the_ ^^C
outcome of the trial. The State's failure to provide such records supports a VP g£
Brady1 violation only if the records are material. ^^ Brandon Earl seeks a new trial for his first degree child rape conviction,
relying upon newly discovered disciplinary records of the scientist who conducted
deoxyribonucleic acid (DNA) testing of the victim's underwear. Earl contends the
records destroy the scientist's credibility and undermine the foundation for
admitting the DNA results. Earl also contends the State's nondisclosure of the
scientist's disciplinary records violated Brady. The trial court transferred Earl's
motion for new trial for consideration as a personal restraint petition.
But Earl fails to connect the scientist's mistakes to the reliability of the
DNA results in this case. There is no showing that the scientist mishandled,
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963). No. 72685-4-1/2
contaminated, or failed to properly test the DNA evidence. The scientist's
deficiencies identified in the disciplinary records are not exculpatory and do not
destroy his credibility.
We deny Earl's personal restraint petition.
FACTS
On Christmas Eve 2010, Earl returned home from work to a family party.2
He went upstairs to his bedroom to rest.3 Several children were in his bedroom
watching cartoons.4 Earl gave the children "raspberries," i.e., blew on their
stomachs, and sent them downstairs.5 Three-year-old M.F. returned to Earl's
bedroom.6
M.F.'s mother went upstairs to look for M.F. When she opened Earl's
bedroom door, she "heard a bunch of commotion."7 The mother saw Earl and
M.F. next to each other on his bed.8 Earl and M.F. separated quickly when the
mother opened the door:
I look around, and I can see Brandon coming from the left side of the bed, kind of readjusting, sitting up to the right side of the bed. The covers were over his bottom half, fully dressed. [M.F.] is more towards the foot of the bed on the left side.[9]
2 Pet'r'sBr., app. 2, at 4. 3 id, 4 jdk at 25-26. 5 Id, at 26, 29. 6 id at 29. 7 Report of Proceedings (RP) (Jan. 30, 2013) at 279. 8Jd 9 Id. No. 72685-4-1/3
The mother carried M.F. out of the room. While walking downstairs, M.F. said
Earl "told me not to tell."10
The mother took M.F. into a bathroom and asked her what happened, but
M.F. would not say.11 She then took M.F. to sit next to M.F.'s grandmother.12
M.F. told the grandmother, "He licked my pee-pee."13 The grandmother asked
who did, and M.F. answered, "Brandon."14 When the mother confronted Earl
later that night, he told her he "was blowing raspberries" or "butterflies" on M.F.'s
belly.15
That night, M.F. told her mother before bedtime that Earl "made a mess
down there."16 M.F. changed into her pajamas, and the mother put M.F.'s
clothing that she wore that night in a laundry hamper.17 Several days later, the mother took M.F. to a hospital for an examination.1* The mother brought "a dress, a pair of tights, and two pairs of underwear" to the
hospital.19 The nurse examined M.F. and collected the clothes.20 M.F. did not
Id. at 284.
1id at 284-85. 2 id at 286. 3 id at 360. 4 id at 362. 5 id at 292-93, 365. 6 id at 296. 7id at 295-96, 337-38; Interview of April Mathis (Dec. 14, 2012) at 72. 8(RP)(Jan. 30, 2013) at 394. 9id at 399. The record does not explain why the hamper contained only two pa irs of underwear for the four days from Christmas Eve until the day the mother collected the clothes from the hamper. 20 Id. at 399. No. 72685-4-1/4
say anything to the forensic nurse about the previous night.21
Earl admitted to police that he was alone with M.F. on his bed, that he
placed his mouth on her lower torso when "blowing raspberries," and his mouth
was "accidentally" on her vagina or his face was in her private area for "thirty
seconds."22 Earl stated that while "blowing raspberries" involved contact with
M.F.'s skin on her stomach, the contact with M.F.'s vaginal area was over her
clothing.23
The State charged Earl with first degree child rape.
Forensic DNA Testing
M.F.'s tights and two pairs of underwear from the hamper were tested for
DNA.24 Forensic scientist Kristina Hoffman initially tested the items.25 Hoffman
did not notice anything "abnormal" or "compromised."26 On one pair of
underwear, amylase was found on the inside, but not the outside, of the crotch
area.27 Amylase is an enzyme found in saliva and in lower amounts in other
bodily fluids.28 Both pairs of underwear had "yellow staining" on the crotch area
21 id at 397. 22 Pet'r's Br., app. 2, at 27-28. 23 id at 23. 24 RP (Feb. 1, 2013) at 657, 660. 25 id at 656-57. 26 id at 658. 27 id at 672-73, 678-79. 28 Id. at 667. No. 72685-4-1/5
and had a "urine-like odor."29 Amylase was not found on the outside crotch area
of the tights.30
On the underwear with amylase on the inside of the crotch, a "small
amount" of male DNA, "seven nanograms," was found in the crotch area.31
Hoffman did not determine how many male DNA profiles were on the
underwear.32 Hoffman testified that seven nanograms of DNA is more consistent
with a "body fluid" deposit than a "contact touch" deposit.33 Both male and
female DNA were found on the outside crotch area of the tights, with a "mixture
of at least four contributors."34 Hoffman testified that 1 in 29 persons, including
Earl and M.F., were possible contributors.35 Due to the large amount of female
DNA on the underwear, detecting the male component with conventional
(autosomal) DNA testing was not possible.36
In October 2011, Hoffman sent an interior sample of the underwear that
had amylase to another lab for Y-STR haplotype testing.37 Hoffman testified that
the packaging of Earl's and M.F.'s reference samples was an "acceptable
method" and did not risk contamination.38
29 id at 664, 671. 30 id at 672-73, 678-79. 31 id at 682-83, 694, 748. 32 id at 758. 33 id at 695-96. 34 id at 686, 725-26. 35 id at 686, 688, 726. 36 id at 682, 759. 37 id at 683, 709. 38 Id. at 686, 705. No. 72685-4-1/6
When forensic scientist Michael Lin received the samples, he did not
observe "any potential break or compromise in the packaging."39 In November
2011, Lin performed the Y-STR testing on the underwear. Y-STR testing isolates
male DNA by focusing solely on the Y chromosome.40 All men in the same
paternal lineage share the same DNA profile.41 Y-STR testing allows a forensic
scientist to determine whether a known source and all of his paternal relatives
can be excluded as possible contributors to an unknown DNA sample.42
M.F.'s underwear disclosed a Y chromosome DNA profile from "one
individual" consistent with Earl's Y chromosome DNA profile.43 Lin estimated the
frequency of a particular profile found in the database using the "Counting
Method."44 This method compares the profile to a database maintained by the
National Center for Forensic Sciences and determines the frequency of the
profile found in the database.45 Lin calculated the probability that a random
person would exhibit the same profile as Earl's at less than 1 in 2.800.46 This estimate was "highly conservative" due to the database's limited size.47 As the
39 id at 775. 40 John M. Butler, Forensic DNA Typing: Biology & Technology Behind STR Markers 120 (2001). 41 id 42 State v. Bander, 150 Wn. App. 690, 700, 208 P.3d 1242 (2009). 43 RP (Feb. 1, 2013) at 781, 795; RP (Feb. 4, 2013) at 838. 44RP(Feb. 4, 2013) at 819. 45 RP (Feb. 4, 2013) at 820, 839. 46 RP (Feb. 1, 2013) at 796; RP (Feb. 4, 2013) at 845. 47 RP (Feb. 4, 2013) at 842, 845. No. 72685-4-1/7
database grows, it provides a more specific calculation of the frequency of any
particular profile.48
The database calculates a frequency by applying a 95 percent confidence
interval.49 Stated differently, the calculated profile would be within that range 95
percent of the time and would fall outside of that range 5 percent of the time.50
More profiles were added to the database from the time Lin initially tested the
underwear and the trial.51 As of January 2013, Lin calculated the probability that
a random person would exhibit the same profile as Earl's at less than 1 in
4,400.52 During trial, the database had updated again, and Lin calculated the
probability that a random person would exhibit the same profile as Earl's at less
than 1 in 5,200.53
A jury convicted Earl of first degree child rape. He appealed, challenging
the trial court's decision to exclude evidence that the mother and grandmother
were predisposed to assume abuse occurred and alleging prosecutorial
misconduct in closing argument. This court affirmed his conviction.
48 id at 841; see also Justice Ming W. Chin, Michael Chamberlain, Amy Rojas, Lance Gima, Forensic DNA Evidence: Science and the Law § 7:1 (updated electronically April 2015) ("Because this estimate is dependent on the size of the database, the frequency estimate will change with the sample size of the database and the number of observances with each search."). 49RP(Feb. 4, 2013) at 842. 50 id at 824. 51 id at 849. 52 id at 848, 874-75. 53 id at 847-49, 902. No. 72685-4-1/8
Motion for New Trial
One year after his conviction and during the pendency of his direct appeal,
Earl filed a motion for new trial. Earl attached Lin's disciplinary records.
Lin was hired to work as a forensic scientist in February 2008. He was in
training status until December 2009. Lin began performing supervised casework
in January 2010. Lin completed the Y-STR testing in Earl's case in November
2011. In March 2013, Lin was removed from active case work pending
completion of a work improvement plan. Three months later, Lin resigned.54
The trial court transferred Earl's motion for consideration as a personal
restraint petition.
ANALYSIS
Earl contends Lin's recently disclosed disciplinary records warrant a new
trial under either the newly discovered evidence standard or the Brady materiality
standard. We disagree.
Newly discovered evidence is grounds for relief in a personal restraint
petition if those facts "in the interest of justice" require the conviction's vacation.55
When raised as a ground for relief, "'newly discovered evidence' is subject to the
same standards that apply to a motion for a new trial."56 A party seeking a new
trial based upon this ground must demonstrate the evidence:
54 In his motion for new trial, Earl asserts that several facts identified in the opinion deciding his direct appeal are inaccurate. Misstatements or overstatements of any nature are a serious concern. For this personal restraint petition, we do not rely upon any misstatements identified by Earl. 55 RAP 16.4(c)(3). 56 In re Pers. Restraint of Copland, 176 Wn. App. 432, 450, 309 P.3d 626 (2013).
8 No. 72685-4-1/9
"'(1) will probably change the result of the trial; (2) was discovered after the trial;
(3) could not have been discovered before trial by the exercise of due diligence;
(4) is material; and (5) is not merely cumulative or impeaching."57 The absence
of any one factor is grounds for the denial of a new trial.58
To establish a Brady violation, a defendant must establish three factors:
the evidence "'must be favorable'" to the defense, either because it is exculpatory
or impeaching, the evidence "'must have been suppressed by the State, either
willfully or inadvertently,'" and the evidence "'must be "material."'59 Evidence is
material under Brady if the State's "'evidentiary suppression undermines
confidence in the outcome of the trial.'"60
Earl fails to establish either that evidence of Lin's general ineptitude would
probably change the outcome of the trial or is material under Brady.
The Supreme Court's recent decision in State v. Davila is instructive.61
There, the defendant was charged with felony murder after he allegedly killed a
man with a baseball bat. Forensic scientist Denise Olson tested the bat for DNA.
Olson's testing revealed the presence of Davila's DNA on the bat. At trial, the
State did not call Olson to testify about her testing of the bat. Instead, the State
57 State v. Mullen, 171 Wn.2d 881, 905-06, 259 P.3d 158 (2011) (quoting State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004(1996)). 58 id at 906. 59 State v. Davila, 184 Wn.2d 55, 69, 357 P.3d 636 (2015) (quoting Strickler v. Greene, 727 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L Ed. 2d 286 (1999)). 60 id at 73 (internal quotation marks omitted) (quoting Kvles v. Whitley, 514 U.S. 419, 434, 115 Sup. Ct. 1555, 131 L. Ed. 2d 490 (1995)). 61 184 Wn.2d 55, 357 P.3d 636 (2015). No. 72685-4-1/10
called her supervisor Lorraine Heath to testify about Heath's retesting of the bat.
Heath's retesting of the evidence "confirmed Olson's results."62 Davila was
convicted of felony murder.
Before sentencing, the defense learned Olson had been fired "after
receiving poor evaluations for roughly five years."63 The defense also learned
the crime lab audited Olson's work during the year she tested items in Davila's
case.64 This audit "revealed errors in the vast majority of Olson's cases" and
"resulted in 'Brady letters' being sent to eleven prosecuting attorneys" notifying
them of her "problems" and her "faulty results."65
The defendant sought a new trial, alleging a Brady violation. The trial
court denied the motion for new trial, concluding "the defense failed to
meaningfully connect Olson's ineptitude with the evidence used to convict
Davila."66 The defense "failed to develop facts showing that Olson's ineptitude
and termination were material in this case."67 Absent some evidence of potential
contamination in Davila's case due to Olson's incompetence, the Davila court
concluded the defense failed to show Brady materiality.68
Earl's theory is that Lin's general ineptitude, as revealed in the disciplinary
records, calls into question the results of the DNA testing that Lin performed in
62 id. at 59. 63 id at 61. 64 id 65 id 66 id at 78. 67 Id, 68 id at 81-82.
10 No. 72685-4-1/11
this case. But Earl does not connect Lin's ineptitude with the results of the
testing in this case.
Several of the records reveal initial performance problems and a resulting
improvement plan implemented when Lin was still in training status in June 2009.
This occurred several years before Lin's testing in Earl's case. For example, Lin
missed deadlines, he inefficiently used expensive reagents, he used a pipette to
mix sperm samples in a way that may have used up excessive amounts of a low-
level sample, and he used a second slide in a test when it was not clear a
second slide was required, which potentially wasted portions of the sample.69 In
December 2009, Lin successfully completed an improvement plan designed to
address these concerns.70
The April 27, 2010 discipline involved the potential for contamination of
evidence in another case.7^ For quality control in the use of paper that detects
the presence of amylase, the scientists use a sample of their own saliva on a
separate piece of paper to confirm the paper is working properly before applying
another piece of that paper to screen evidence.72 The crime lab also screens
each test for any contamination of evidence with its lab workers' DNA.73 There
was no showing of any actual contamination with Lin's saliva in the April 27, 2010
screening or any other evidence at any other time. Lin acknowledged on cross-
69Resp't's Br., app. A-1. 70 Id, app. C-1.C-2. 71 id, app. D-1. 72 Id,, app. 2-4, H 8. 73 id, app. 2-2, H 4.
11 No. 72685-4-1/12
examination that his test results revealed the presence of other scientists' DNA in
two incidents.74 If the April 27, 2010 disciplinary record had been made available
before trial, the defense could have impeached Lin with evidence of this potential
for contamination with Lin's saliva in the April 2010 incident. But no evidence
supports that Lin has ever contaminated any evidence with reference samples or
with his DNA.75 Nor is there evidence of any repeated incidents involving
potential or actual contamination of DNA samples.
Earl's theory of contamination is hypothetical and speculative. Before Lin
tested M.F.'s underwear for male DNA, another scientist had determined that
male DNA was present on the inside crotch area of M.F.'s underwear. That
scientist extracted the male DNA from that pair of underwear. Lin's testing
revealed a single male DNA profile. If the original DNA extracted from the
underwear had been some other male's DNA, and Lin had contaminated that
DNA sample with Earl's reference sample, then the testing would have revealed
at least two male profiles present on the underwear.
Absent any evidence that Lin had ever contaminated evidence with
reference samples, or that he contaminated the DNA extracted from M.F.'s
underwear here, Earl fails to "meaningfully connect" Lin's ineptitude with the
evidence used to convict him.76 No evidence supports that Lin's ineptitude
tainted the evidence or test results in this case. Nor is there any evidence that
Lin forged lab results, or failed to properly use the machines that measure and
74RP(Feb. 4, 2013) at 852. 75 Resp't's Br., app. 2-3,1J 5. 76 Davila, 184 Wn.2d at 78.
12 No. 72685-4-1/13
analyze Y-STR samples. Similarly, the disciplinary records do not call into
question the chain of custody or foundation for the DNA test results.77
The remaining disciplinary records supporting Earl's motion for new trial
criticize Lin's testimony in this case.78 Such criticism does not exculpate Earl.
Heath criticized Lin because he failed to present as compelling a case against
Earl as the evidence warranted and "significantly understate^] the significance of
the lab results."79 For example, (1) Lin "tended to equivocate" and gave "unclear"
and "unqualified answers," (2) Lin "often understated his training and experience
and generally gave a poor, unconfident, unprepared impression to the jury and
the judge," (3) Lin "gave the impression of being unfamiliar" with the case file,
(4) Lin gave "the impression that contamination was more likely than it was," and
(5) Lin failed to articulate that the amount of male DNA found on the underwear
was inconsistent with a touch sample.80
Earl makes no showing that a reference hearing is warranted. He
suggested the potential for a reference hearing to the trial court to "probably bring
in the people that authored those documents."81 But Earl "never offered any fact
or called any witness who could have supported his theory" that Lin mishandled
77 Earl relies upon State v. Roche, 114 Wn. App. 424, 59 P.3d 682 (2002), but Roche is distinguishable. No evidence here suggests Lin stole or altered test samples, lied to his supervisors or fabricated test results, compromised the DNA results in this case by his conduct, or used drugs while testing. 78 Resp't's Br., apps. F, G, I, J, K. 79 Jd, app. 2-4, TT11. 80id, app. G; app. 2-4,H11. 81 RP(Aug. 6, 2014) at 7.
13 No. 72685-4-1/14
or contaminated the evidence.82 Earl provides no evidence that links Lin's
ineptitude to the evidence in this case.
In context, the newly discovered evidence reveals that Lin did not work as
quickly or efficiently as desired. In cases not involving Earl, he wasted expensive
supplies and used techniques that could have wasted a limited sample. On one
occasion in 2010, Lin risked contamination of evidence in another case with his
own saliva sample. And Lin struggled to be a strong expert witness for the State.
But Earl fails to demonstrate that Lin's ineptitude implicates the validity of
the DNA results in this case. Those results establish that there was a single
male profile for the male DNA found on the inside crotch area of M.F.'s
underwear containing amylase. Earl told police that his face "accidentally"
touched M.F.'s vaginal area over her clothes.83 But Hoffman found the amylase
on the inside crotch area of M.F.'s underwear, not on the outside of the
underwear or on the tights M.F. was wearing. The presence of amylase is
consistent with the presence of Earl's saliva only on the inside of M.F.'s
underwear and corroborates M.F.'s statement that Earl "licked [her] pee-pee."84
Earl admitted his face or his mouth contacted M.F.'s private area for "thirty
seconds."85
We acknowledge that the Y-STR evidence was significant, corroborating
that Earl had direct contact with M.F. But the newly discovered evidence does
82 Davila, 184 Wn.2d at 79. 83 Pet'r's Br., app. 2, at 27-28. 84RP(Jan. 30, 2013) at 360. 85 Pet'r's Br., app. 2, at 28.
14 No. 72685-4-1/15
not link Lin's ineptitude with the DNA test results. Under the Brady materiality
standard, Earl does not establish grounds for relief. Earl fails to develop any
facts, apart from speculation, supporting his theory that there is a reasonable
probability of contamination in this case due to Lin's misconduct. For the same
reasons, we conclude the newly discovered evidence would not probably change
the result of the trial.
Therefore, we deny Earl's personal restraint petition.
WE CONCUR:
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