IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 85008-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MELVIN LEWIS TAYLOR, JR,
Appellant.
BIRK, J. — Melvin Taylor, Jr. was convicted of murder in the first degree
under RCW 9A.32.030(1)(c). On appeal, he argues that the State improperly
presented new expert opinion at trial, and on this basis he asserts (1) the trial court
erred in overruling his objection to the State’s DNA expert’s testimony on direct
examination, (2) the trial court erroneously denied his CrR 7.5 motion for a new
trial based on the State’s alleged discovery violation, (3) the DNA expert’s
testimony amounted to an improper opinion on Taylor’s guilt, (4) defense counsel
was ineffective in failing to renew his objection to the DNA expert’s opinion, and
(5) as stated in Taylor’s statement of additional grounds, the State failed to disclose
exculpatory evidence. Finding no error, we affirm Taylor’s conviction.
I
We limit our discussion of the trial evidence to that necessary to Taylor’s
contention that the State presented a new expert opinion at trial. L.K.’s body was
found behind a grocery store off Pacific Highway in Federal Way. Her pants were No. 85008-3-I/2
unfastened and unzipped, and completely off her right leg. Two used condoms
were collected at the scene. A medical examiner collected vaginal and anal swabs
and testified that L.K.’s cause of death was asphyxia due to strangulation,
classifying the manner of death as homicide.
Michael Dornan, a DNA analyst at the Washington State Patrol Crime
Laboratory, examined the two condoms and the vaginal and anal swabs. Dornan
labeled the condoms condom “A” and condom “B” and swabbed the condoms to
test for semen. Condom A was positive for the presence of P30—an enzyme found
in semen—and the anal and vaginal swabs produced positive results for semen.
Dornan testified the male profile developed from the condom and the two swabs
was a “single source male profile,” which Dornan identified as individual “A.”
Taylor’s DNA profile matched the male profile identified as individual A
developed in L.K.’s case. A detective submitted additional items for testing at the
crime lab, including L.K.’s underwear. Jennifer Reid, a forensic scientist with the
Washington State Patrol Crime Laboratory, reviewed Dornan’s work and
performed further analysis of the evidence. Reid conducted multiple presumptive
tests on L.K.’s underwear to look for seminal fluid, and did not detect any.
The State charged Taylor with first degree murder under RCW
9A.32.030(1)(c) predicated on rape in the first or second degree. The State’s
theory was that the absence of any seminal fluid from L.K.’s underwear was
circumstantial evidence that L.K. never stood up again after Taylor’s ejaculate
entered her body. At trial, the State asked Reid about her expectation about
transfer of seminal fluid to the underwear if L.K. had put them back on, and Reid
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testified she would have expected in that case to find seminal fluid in her testing.
Taylor contends this was a new opinion. The jury convicted Taylor of murder in
the first degree. Taylor appeals.
II
During direct examination, Reid testified she did not look for DNA on the
underwear because “the request was to see if potentially [L.K.] had put the
underpants back on and if any transfer of seminal fluid had happened. And so I
was looking for seminal fluid.” The following testimony occurred:
Q. Were you aware of whether or not spermatozoa was visible on the vaginal swab that [Dornan] examined?
A. Yes, I was aware and there was.
Q. And in what amount? And I don’t mean precise numbers, but a small amount, a medium amount, a lot amount. What was the volume that was seen in her vaginal swab?
A. Well, there was a good amount; there was a moderate amount.
Q. And could that be consistent with ejaculation?
A. Yes.
Q. And based on that amount being on the vaginal swab, did you expect to see—
[DEFENSE COUNSEL]: I’m going to object to this. I don’t think there’s a basis for this opinion.
....
THE COURT: Restate the question for me, please.
Q. Based on—you indicated that you didn’t go forward with any DNA testing—based on what you saw in [Dornan’s] report of the amount
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of sperm in the vaginal swab, would you expect to see DNA from sperm on her underwear if she had put them back on?
[DEFENSE COUNSEL]: And I’m objecting.
THE COURT: Overruled.
A. Yes. So my expectation when looking for seminal fluid on the underpants is that if [L.K.] had put them back on that I would have hoped to have found some, you know, a little bit of something on those underpants that would’ve been detectable with that type of testing that we had.
On redirect, Reid testified she was confident she had performed every test
to determine there was no seminal fluid in L.K.’s underwear. When asked, “Given
what you saw or what you observed in [L.K.’s] vaginal swab and her anal swab,
what was your expectation with respect to transfer to that underwear if she had put
it back on?” Reid replied,
Yes. Well, that was my expectation. That was my recommendation. Based on the amount of seminal fluid that was found on her body, the expectation would be that all of my tests, I would have gotten some sort of answer from all those tests. So that’s why I didn’t recommend DNA.
Taylor did not object.
Following trial, Taylor moved for a new trial pursuant to CrR 7.5 “because
the state elicited an improper opinion, which had not been previously disclosed to
defense on redirect.” (Emphasis added.) Taylor contended he was aware that the
State would argue its theory that if L.K. had put her underwear back on, seminal
fluid would have been found in her underwear, however, he was not prepared to
challenge that expert opinion because “it never appeared in any document before.”
The State argued the testimony was not a complete surprise because prior
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defense interviews “talked about sort of this drainage issue and discharge issue,”
and Reid’s testimony “just provided context.” The trial court held Reid’s testimony
was not an improper opinion and could not conclude “that the testimony would
have been prejudicial in the context of being testimony that then could be, that the
testimony itself essentially misled the jury in any way, nor can I say that this issue
was in any way a surprise.”
A
Taylor argues Reid’s opinion was inadmissible under ER 702 because it
was speculative and lacked an adequate factual basis. We disagree.
To be admissible under ER 702, expert testimony must be, among other
requirements, “helpful to the trier of fact.” State v. Lewis, 141 Wn. App. 367, 389,
166 P.3d 786 (2007). Expert testimony is helpful if “it concerns matters beyond
the common knowledge of the average layperson and does not mislead the jury.”
State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004). The expert’s
testimony must be relevant, meaning it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” ER 401, 402. Speculative
testimony, even if from an expert, is irrelevant. Lewis, 141 Wn. App. at 389.
Determining the admissibility of expert evidence is largely within a trial court’s
discretion, and its decision will not be disturbed except for an abuse of such
discretion. In re Marriage of Katare, 175 Wn.2d 23, 38, 283 P.3d 546 (2012). “A
trial court abuses its discretion when its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons.” State v. Griffin, 30 Wn. App.
5 No. 85008-3-I/6
2d 164, 170, 544 P.3d 524, review denied, 3 Wn.3d 1015, 554 P.3d 22 (2024). If
the basis for admission of the evidence is “ ‘fairly debatable,’ ” we will not disturb
the trial court’s ruling. Grp. Health Coop. of Puget Sound, Inc. v. Dep’t of Revenue,
106 Wn.2d 391, 398, 722 P.2d 787 (1986) (internal quotation marks omitted)
(quoting Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979)).
Taylor objected to Reid’s direct examination testimony, arguing Reid lacked
“a basis for this opinion.” Reid testified she had 20 years of experience working in
the crime lab as a DNA analyst. In her first year, Reid was “learning how to identify
the different biological fluids we’d be dealing with, getting that DNA out of those
different biological fluids, and what that process was.” Reid testified she was
familiar with Dornan’s testing of the vaginal swab, and there was a “moderate
amount” of spermatozoa on the swab, which could be consistent with ejaculation.
Reid’s experience, coupled with the facts available to her, provided some
foundation for the trial court to admit her testimony that if L.K. had put the
underwear back on seminal fluid would have been “detectible with that type of
testing that we had.” Though Reid did not testify about her direct knowledge on
the transfer of bodily fluids, Taylor “ably raised these foundational challenges for
the jury’s consideration during . . . cross-examination.” Johnston-Forbes v.
Matsunaga, 177 Wn. App. 402, 412, 311 P.3d 1260 (2013), aff’d 181 Wn.2d 346,
333 P.3d 388 (2014). Taylor’s challenge “ ‘goes to the testimony’s weight, not its
admissibility.’ ” Johnston-Forbes, 181 Wn.2d at 357 (quoting Katare, 175 Wn.2d
at 39). Because the trial court’s decision to overrule Taylor’s objection was at least
6 No. 85008-3-I/7
fairly debatable, we cannot say the trial court abused its discretion in determining
this testimony had a sufficient foundational basis.
B
Taylor argues the trial court erred in denying his motion for a new trial
because the State violated its discovery obligations under CrR 4.7 by eliciting
Reid’s “previously undisclosed opinion” about semen transfer. We disagree.
A trial court has wide discretion in ruling on discovery violations and motions
for a new trial. State v. Linden, 89 Wn. App. 184, 189-90, 947 P.2d 1284 (1997).
These decisions will not be disturbed on appeal unless the court abused its
discretion. Id. at 190. CrR 4.7(a)(2)(ii) requires a prosecutor to disclose to the
defendant “any expert witnesses whom the prosecuting attorney will call at the
hearing or trial, the subject of their testimony, and any reports they have submitted
to the prosecuting attorney.” The purpose of this rule is to prevent a defendant
from being prejudiced by surprise, misconduct, or arbitrary action by the
government. State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996).
In State v. Greiff, 141 Wn.2d 910, 916, 10 P.3d 390 (2000), a law
enforcement officer testified at the defendant’s first trial that when he asked the
victim if they had been sexually assaulted, they told him they had not. The court
declared a mistrial after the jury could not reach a unanimous verdict. Id. In the
second trial, defense counsel, relying on the officer’s earlier testimony, stated in
their opening that the police officer would testify he asked the victim if they had
been assaulted, and they told him they had not. Id. However, when the officer
took the stand in the second trial, he testified that he never asked the victim if they
7 No. 85008-3-I/8
had been sexually assaulted. Id. at 917. The court concluded the State violated
its discovery obligation under CrR 4.7(a)(1)(i) because “the record shows that the
deputy prosecuting attorney assigned to this case knew as early as the day before
the second trial” that the officer’s testimony would differ, and the information was
discoverable. Id. at 919-20.
In response to the motion for a new trial, the State submitted excerpts of
Reid’s two pretrial interviews. Analogizing to Greiff, Taylor focuses on defense
counsel’s question at one of the interviews about the amount of ejaculate: “[A]re
you able to say this is, like, a full ejaculation, or this could be a stray sperm from,
you know, post-ejaculation or penetration or the condom’s used improperly, or
what have you; or are you able to say it’s a full ejaculation?” Reid answered, “I
can’t remember what the quantities were for some of that. I mean, I think he had
a good quantity of DNA. But whether I could say for certain that it’s a full
ejaculation versus a partial, I don’t think I could say that.” She added, “I don’t know
that you could know that exactly.” Taylor characterizes this as a pretrial statement
that Reid could say nothing about the amount of ejaculate, and argues that, like
the officer in Greiff, she reversed her testimony when she opined she would have
expected transfer. But Reid’s interview statement denied only the ability to say
whether there had been “full” or “partial” ejaculation, a question appearing to relate
to absolute quantity, and Reid reiterated her opinion that there was qualitatively “a
good quantity of DNA.” Reid did not reverse a statement she had previously made
as the officer did in Greiff.
8 No. 85008-3-I/9
During the pretrial interviews, Reid stated she was looking for seminal fluid
on the underwear and did not conduct DNA testing on the underwear as she would
not have been able to put any relevance to the DNA profile “because we don’t
know what type of the DNA is even originating from it.” Reid stated there was a
possibility of vaginal discharge if a person was horizontal but “it would be at a much
lesser amount,” and if a person was “getting up, moving around, then you’re
already draining seminal fluid out of yourself” because “gravity is working on you.”
Reid’s interview statements indicate there was a level of spermatozoa sufficient
for a DNA profile in the vaginal area, she was concerned about drainage and
concerned to test the underwear for seminal fluid, finding none, and this eliminated
need for further DNA testing. In compliance with CrR 4.7(a)(2)(ii), the State
disclosed Reid, the subject of her testimony, and made her available for pretrial
interviews. The trial court did not abuse its discretion in determining the State did
not violate its discovery obligation and denying Taylor’s motion for a new trial.
C
Taylor argues Reid’s testimony was constitutionally improper because it
amounted to a comment on Taylor’s guilt. We disagree.
In a criminal trial, “[o]pinions on guilt are improper whether made directly or
by inference.” State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014).
“Impermissible opinion testimony regarding the defendant’s guilt may be reversible
error because such evidence violates the defendant’s constitutional right to a jury
trial, which includes the independent determination of the facts by the jury.” Id.
The trial court has wide discretion to determine the admissibility of evidence, and
9 No. 85008-3-I/10
the trial court’s decision whether to admit or exclude evidence will not be reversed
on appeal unless the appellant can establish that the trial court abused its
discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
An opinion is not improper merely because it involves an ultimate factual
issue. City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). ER
704 states, “Testimony in the form of an opinion or inferences otherwise admissible
is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact.” But the opinion must be “otherwise admissible.” Heatley, 70 Wn.
App. at 579. Therefore, where opinion testimony on an ultimate issue lacks proper
foundation, is not helpful to the trier of fact, is confusing or misleading, or its
probative value is substantially outweighed by the danger of unfair prejudice, the
testimony may constitute an impermissible opinion on guilt. Id.
Whether testimony constitutes an impermissible opinion on guilt or a
permissible opinion embracing an ultimate issue will depend on the “specific
circumstances of each case, including the type of witness involved, the specific
nature of the testimony, the nature of the charges, the type of defense, and the
other evidence before the trier of fact.” Id. In Quaale, an answer by a state trooper
in a DUI case that “ ‘Absolutely. There was no doubt [the defendant] was
impaired’ ” was an improper opinion on guilt because it “went to the core issue and
the only disputed element.” 182 Wn.2d at 200. Similarly, in State v. Montgomery,
a police officer testified, “ ‘I felt very strongly that they were, in fact, buying
ingredients to manufacture methamphetamine based on what they had purchased,
the manner in which they had done it, going from different stores, going to different
10 No. 85008-3-I/11
checkout lanes.” 163 Wn.2d 577, 587-88, 183 P.3d 267 (2008). This, among other
statements, was an improper opinion on guilt because it “went to the core issue
and the only disputed element.” Id. at 594.
“Improper opinions on guilt usually involve an assertion pertaining directly
to the defendant.” Heatley, 70 Wn. App. at 577. In contrast, “testimony that is not
a direct comment on the defendant’s guilt or on the veracity of a witness, is
otherwise helpful to the jury, and is based on inferences from the evidence is not
improper opinion testimony.” Id. at 578. We have “expressly declined to take an
expansive view of claims that testimony constitutes an opinion on guilt.” Id. at 579.
In Demery, the court concluded statements by police officers in a recorded
interrogation of the defendant suggesting the defendant was lying did not amount
to opinion testimony concerning truthfulness. 144 Wn.2d at 764-65. In Heatley,
testimony by a police officer that a driving while under the influence of intoxicating
liquor defendant was “ ‘obviously intoxicated’ ” and “ ‘could not drive a motor
vehicle in a safe manner’ ” were not improper opinions on guilt because they were
not “direct” statements on the defendant’s guilt and were based on the officer’s
experience and observations of the defendant’s appearance and performance on
field sobriety tests. 70 Wn. App. at 577, 579. The officer’s statements based on
observation were “similar to but not identical to” the controlling legal standards in
the jury instructions, and amounted to an opinion on “the degree of intoxication”
the defendant exhibited. Id. at 581-82. This was distinguished from an opinion on
guilt. Id. at 582.
11 No. 85008-3-I/12
The statement Taylor describes as an improper opinion on guilt came in the
context of the State asking why Reid did not conduct DNA testing on L.K.’s
underwear. Reid testified, “So my expectation when looking for seminal fluid on
the underpants is that if [L.K.] had put them back on that I would hoped to have
found . . . a little bit of something on those underpants that would’ve been
detectable with the type of testing that we had.” Reid’s statements do not go
directly to Taylor’s guilt, but only to Reid’s expectation for seminal fluid transfer,
and the statements were couched in terms of the limits of Reid’s testing. The
State’s closing acknowledged that the absence of transfer was circumstantial
evidence that L.K. never got up again, a fact that inferentially suggested Taylor’s
guilt. Reid’s statements did not amount to an improper opinion on guilt. 1
D
Taylor argues defense counsel was ineffective in failing to renew his
objection to Reid’s “undisclosed, improper opinion.” We disagree.
To prevail on a claim of ineffective assistance of counsel, the defendant
must demonstrate that (1) counsel’s representation was deficient, meaning it fell
below an objective standard of reasonableness based on consideration of all the
circumstances; and (2) the defendant was prejudiced, meaning there is a
reasonable probability that the result of the proceeding would have been different
but for the challenged conduct. Strickland v. Washington, 466 U.S. 668, 687, 104
1 Taylor argues the trial court erred in ruling that defense counsel “made
Reid’s opinion relevant and admissible,” contending the trial court’s ruling was “essentially one of curative admissibility.” Because we hold the trial court did not abuse its discretion in overruling Taylor’s objection, or denying Taylor’s motion for a new trial, we need not reach this issue.
12 No. 85008-3-I/13
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35,
899 P.2d 1251 (1995). If either prong has not been met, we need not address the
other. State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990).
“When a defendant bases his ineffective assistance of counsel claim on trial
counsel’s failure to object, the defendant must show that the objection would likely
have succeeded.” State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019).
Reid’s testimony was not a new opinion that violated CrR 4.7, nor did it lack a
foundational basis. Taylor cannot show that an objection to Reid’s cross-
examination or redirect testimony would have succeeded. Therefore, Taylor
cannot show deficient performance and his claim for ineffective assistance of
counsel fails.
III
In his statement of additional grounds, Taylor argues the State knowingly
used perjured testimony where “Reid [gave] testimony to a DNA test, which on
cross-examination Reid acknowledged she did not conduct any DNA testing of
L.K.’s underwear,” and argues defense counsel was ineffective by failing to have
an ongoing objection during Reid’s testimony. Because these issues are
addressed above, we do not separately consider Taylor’s similar pro se argument.
State v. Johnson, 100 Wn. App. 126, 132, 996 P.2d 629 (2000).
Taylor further provides multiple case citations regarding the State’s duty to
disclose exculpatory material and what a defendant must demonstrate to establish
a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963). However, Taylor provides no argument or factual basis that the State failed
13 No. 85008-3-I/14
to disclose exculpatory evidence in this case. This claim fails to inform the court
of the “nature and occurrence of [the] alleged errors.” RAP 10.10(c). Therefore,
we decline to address this claim.
Affirmed.
WE CONCUR: