State v. Davila ( 2015 )

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 90839-7
Respondent, ENBANC
v.
JULIO J. DAVILA, AUG
Filed - - -2-7-2015
--
Petitioner.
GORDON McCLOUD, J.-Julio Davila challenges the Court of Appeals'
decision affirming his conviction for second degree murder. At issue is whether the
State violated its disclosure obligation under Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), when it failed to disclose the fact that a forensic
scientist who analyzed certain DNA (deoxyribonucleic acid) evidence used in
Davila's case had been fired for incompetence. While we conclude that this
evidence was both favorable to the defendant and suppressed by the State in violation
of its Brady obligations, we also conclude that the evidence was not material to the
outcome of Davila's trial, given the specific facts presented in this case. We
therefore affirm.
State v. Davila (Julio J), No. 90839-7
FACTS
In 2007, J eramie Davis called 911 to report an assault at an adult bookstore in
Spokane. At the store, police found the owner, John Allen, lying unconscious on
top of a baseball bat and bleeding from his head. Allen later died of his injuries.
While police were processing the crime scene, some of Allen's relatives
arrived and told them that Allen's car was missing from its usual parking place
outside the store. Police found the car a short time later, less than a block from the
store, with its passenger side door slightly ajar.
In 2008, Davis was convicted of Allen's murder based on evidence that he
had robbed Allen's store on the night that Allen was killed. Julio Davila had not yet
become a suspect.
Davila would, however, become a suspect later. In the investigation leading
to Davis' trial, detectives swabbed four areas of the baseball bat found at the scene
and several areas of Allen's car in order to test them for DNA evidence. These swabs
were later tested by former Washington State Patrol Crime Lab (Crime Lab) forensic
scientist Denise Olson.
At issue in this case are a swab taken from the handle of the baseball bat (Swab
D) and a swab from the steering wheel of the car (Item 24). Olson created a profile
for Swab D that revealed a mixture of at least two different people's DNA. Olson
found that the "major [DNA] contributor" was "Unknown Individual A." Clerk's
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Papers (CP) at 275 (emphasis omitted). She found that the other contributor might
be Allen but was definitely not Davis. Olson also created a profile for Item 24. She
found that Allen was included as a DNA contributor, "Unknown Individual A" could
not be excluded as a contributor, and Davis was excluded. CP at 279 (emphasis
added and omitted). In other words, Olson's analysis of Item 24 was inconclusive
as to whether that item contained DNA from "Unknown Individual A." Id.
(emphasis omitted).
The DNA profile of"Unknown Individual A" (from Swab D) was entered into
the Combined DNA Index System (CODIS) database. 3 Verbatim Report of
Proceedings (VRP) at 434-35 (July 12, 2012). In 2011, three years after Davis'
conviction, the Crime Lab received a "hit, or a match in that database" between the
DNA from "Unknown Individual A" and DNA from the defendant in this case, Julio
Davila. Id. at 435.
Lorraine Heath, the supervising forensic scientist at the Crime Lab, retested
and analyzed Swab D (the baseball bat swab) and compared it against a new
reference swab obtained from Davila. Her testing confirmed that the DNA from
Swab D matched the DNA from the reference swab. Heath also retested Item 24
(the steering wheel swab) and confirmed that Davila could be neither included nor
excluded as a contributor ofDNA on that sample. In other words, Heath's retesting
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confirmed Olson's results: Swab D contained DNA from "Unknown Individual A,"
later identified as Davila's DNA, and Item 24 was inconclusive for this DNA.
The State charged Davila with Allen's murder under two different theories:
(1) first degree felony murder for working with Davis to commit a robbery and
thereby causing Allen's death and (2) second degree felony murder for causing
Allen's death in the course of an assault or attempted assault in the second degree.
The first degree felony murder charge was predicated on the theory that Davila
worked with Davis to rob Allen's store, but the court dismissed that charge before
the jury deliberated, finding that there was insufficient evidence that Davila and
Davis knew one another.
At trial, the State presented the following evidence: (1) fingerprints taken
from a glass counter close to where Allen was found matched Davila's, (2) Davila's
DNA was found on the handle of the baseball bat used to murder Allen, (3) Davila
claimed never to have been in Allen's store or to have had any contact with Allen,
and (4) Davila lived behind Allen's store at the time of the murder.
The jury convicted Davila of second degree murder. It also found that Davila
was armed with a deadly weapon at the time. On October 25, 2012, the court
sentenced Davila to 199 months in total confinement, including 24 months for the
deadly weapon enhancement.
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PROCEDURAL HISTORY
On July 25, 2012, after Davila's conviction but before his sentencing, the
defense filed a motion for a new trial. CP at 162-65. It alleged prosecutorial
misconduct in closing argument and rebuttal, and it also asserted that the State
withheld Brady material: the fact that "a forensic expert closely linked to the case
was incapable of doing her job" and that she had been fired for incompetence. CP
at 162.
The expert in question was Olson, the scientist who first tested Swab D-the
baseball bat swab that eventually registered the "hit" in the CODIS database-and
Item 24-the steering wheel swab that was inconclusive for Davila's DNA. After
filing a public disclosure request, the defense learned, after the guilty verdict but
prior to sentencing, that Olson had been fired in 2011 after receiving poor
evaluations for roughly five years. It also learned that the Crime Lab had performed
an audit of Olson's work in 2007, the year that she tested Swab D and Item 24 for
Davis' case, and that this audit had revealed errors in the vast majority of Olson's
cases and had "resulted in 'Brady letters' being sent to eleven prosecuting attorneys
notifying them of [Olson's] problems and her faulty results." CP at 256.
In response to the motion for a new trial, the State argued that Olson had not
performed any of the DNA testing crucial to the case against Davila. Specifically,
it asserted that Heath had conducted the DNA tests in Davila's case and had also
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"reviewed all of Ms. Olson's tests from the Davis case and agreed with all of Ms.
Olson's findings and conclusions." CP at 261. The State also asserted that when
Heath matched Davila's DNA to the DNA found on the handle of the murder
weapon, she did not rely on any of the testing done by Olson. CP at 267.
Finally, the State did not dispute the fact that it never disclosed this
information-Olson's substandard work performance and the pretrial audits during
which the State documented it-to the defense. Instead, the State argued that
defense counsel knew at the time of jury selection that Olson no longer worked in
the Crime Lab, so he could have discovered the reason with due diligence. CP at
268.
The trial court ultimately held three separate hearings on Davila's motion for
a new trial, granting the defense two extensions of time to obtain evidence relevant
to the Brady claim.
The First Hearing on the Motion for a New Trial
The trial court first addressed the defense's motion for a new trial on August
1, 2012, the date set for Davila's sentencing. The State acknowledged that Olson's
performance record "standing alone ... would cause a great deal of concern." 4
VRP at 583 (Aug. 1, 2012). But it argued that in light of the fact that Heath retested
Swab D and Item 24 and confirmed Olson's results, there was no reasonable
probability that the disclosure of Olson's performance record and termination would
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have changed the outcome ofDavila's trial. In making this argument, the prosecutor
cited Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), and
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the
key United States Supreme Court cases defining Brady materiality.
The court also stated that it had "no evidence to find that [the prosecutor]
withheld the ... report [on Olson's incompetence]" and that the prosecutor "had no
obligation to find out about the extent ofthe report." 4 VRP at 596 (Aug. 1, 2012).
Nevertheless, it concluded that Heath's retesting would be grounds for a new trial if
it were shown that Olson could have contaminated the samples that Heath later
retested. Citing In re Personal Restraint of Stenson, 174 Wash. 2d 474, 276 P.3d 286
(20 12), a Brady case involving mishandled forensic evidence, the trial court ruled
that the defense was entitled to an evidentiary hearing on whether any of Olson's
initial testing could have compromised the DNA evidence in Davila's case.
Specifically, the trial court ruled that "the issue is contamination[,] ... mean[ing]
the material was compromised, and no matter how many times you test it, it will not
make any difference. That is what the defense has to show for the court to make any
changes." 4 VRP at 598-99 (Aug. 1, 2012); CP at 295-96.
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The defense suggested that it would need an expert to determine whether the
DNA evidence used against Davila might have been compromised, 1 but the trial
court did not limit the subject of the evidentiary hearing it was granting to expert
testimony. It made clear that there was a factual issue as to whether the DNA
evidence used to convict Davila might have been mishandled and that defense
counsel was entitled to explore that issue. Indeed, the court suggested that there
would be no need to consult an expert until the defense had investigated the facts
surrounding the Crime Lab's handling of the DNA evidence: "I am willing ... to
give you an opportunity to basically demonstrate that you have sufficient evidence .
. . [that] this was contaminated or these procedures were not followed and it was
likely this was contaminated. . .. I would give you the authority to depose . . ..
Then if you are going to need an expert after you have deposed, come to me so we
can have one hearing." 4 VRP at 597-98 (emphasis added) (Aug. 1, 2012). The
court even called the parties' attention to a recent evidentiary hearing it had just
conducted in another case, to give the parties an example of how they might prepare
for such a hearing. I d. at 598 ("If you took a look at that fairly extensive affidavit
that is in State v. Woods, it might be of assistance to both counsel in looking at when
1
CP at 297 (defense counsel stating, "[i]fl contact an expert and they come back to
me and say, you really don't have anything here ... we won't need to have this hearing").
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somebody is arguing a contamination theory.") And it granted· a continuance of
several weeks for the defense to conduct this factual investigation. Jd. at 600-02
(scheduling Sept. 7 status conference on motion for new trial).
The Second Hearing on the Motion for a New Trial
The court reconvened about two and a half months later, on October 19, 2012,
but the defense had not obtained any evidence of contamination. Defense counsel
explained that he had contacted a DNA expert but needed more time to explore the
possibility that the DNA evidence used in Davila's case had been contaminated. He
stated that the expert had determined that contamination might have occurred in
either of two ways: (1) if"Mr. Davila's DNA had been at the lab prior to the evidence
from this case arriving at the lab" or (2) "cross contamination of evidentiary items."
4 VRP at 605 (Oct. 19, 2012). But he asked for more time to explore those
possibilities, and suggested that Davila's DNA might have entered the Crime Lab
when detectives investigated prior burglaries of Allen's bookstore. Id. at 606.
The trial court expressed frustration at defense counsel's failure to provide
more than speculation about the presence of Davila's DNA in the Crime Lab:
I would expect that you would have done some investigation with
regard to the speculation about what happened on these robberies [sic].
Did, in fact, you talk to the detectives or the police officers? Did you
see what, in fact, was sent to the crime lab? Your expert's not going to
know that or have any better way of finding that out than you guys are.
I would expect to see some sort of affidavit or declaration saying "here
is what we have learned from talking with the investigators, from
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State v. Davila (Julio J), No. 90839-7
talking with the lab." Not about contamination, but just was Mr.
Davila's DNA there?
. . . So the question becomes what ... was in the lab that might
have had Mr. Davila's DNA on it in order to contaminate it? And that
is a question that I do not need a DNA expert to answer ... because it
is a factual question. Whether or not it was contaminated, that is what
the DNA expert needs to answer for me. But before that expert can
give me an answer, I presume he or she needs to know whether or not
Mr. Davila's DNA was in the lab, on something that was in the lab at
the same time as the bat was tested. Then you turn it over to the expert
and say[/] ask what they think about it. Could it be contaminated or not?
But if we do not have any evidence that Mr. Davila's DNA was in the
lab at the time that the bat was tested, how can we have contamination
if it was not there?
I d. at 609-11. Defense counsel agreed that "we have to sort of pin point a situation
where we can say, more than likely, that could have been Mr. Davila's DNA, that
may have gone over on a piece of evidence, and that Ms. Olson touched that piece
of evidence." Id. at 612.
The trial court determined that it could not consider the motion for a new trial
until it had evidence, "on a more likely than not basis, [that] Mr. Davila's DNA was
on something that was in the lab at the relevant time." I d. at 612-13. It gave defense
counsel until later that same week to provide that evidence in the form of a
declaration. I d. at 613.
The Third Hearing on the Motion for a New Trial
On October 23, 2012, two days before the date set for the next evidentiary
hearing, defense counsel filed an affidavit stating that he had consulted with a DNA
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testing expert, Dr. Gregory Hampikian, and concluded that a new trial was
warranted. Attached to the affidavit was a brief report by Dr. Hampikian. The report
concluded that Olson could, in theory, have contaminated the DNA evidence used
to convict Davila, provided that Davila's DNA was in the Crime Lab (and was
handled by Olson) before Olson tested Swab D. It stated, very generally:
In the present case (involving Julio Joseph Davila), Olsen [sic]
performed critical DNA tests on evidence, and had access to the key
DNA samples used to implicate Mr. Davila. With her well-documented
propensity for errors, her work in this case is suspect. While I cannot
determine if Mr. Davila's DNA was in the laboratory at the same time
(or before) the evidence samples in this case, it is clear that two
evidence samples in this case (the sample taken from the car, and that
from the bat) were handled and processed by Ms. Olsen [sic]. If the car
sample had Mr. Davila's DNA, it is possible that Ms. Olsen [sic]
mislabeled or contaminated the samples, so that her finding of Mr.
Davila's DNA on the bat is incorrect. This is concern [] based on her
well-documented, long-term deficiencies, and the specific mislabeling
of samples described in her performance records.
If Mr. Davila's DNA had been in the lab on evidence, or as a reference
sample in another case, then the possible routes of contamination are
greatly multiplied.
CP at 310-11. The defense provided no other factual data.
In response, the State filed a certificate from Lorraine Heath, the supervising
forensic DNA scientist at the Crime Lab. Most significantly, the certificate stated
that (1) during the time that Olson conducted testing for the Jeramie Davis case,
"there was never any reference swabs or other items that contained the DNA of Julio
Davila in the laboratory" and (2) Olson did not have possession of the steering wheel
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swabs at the time she tested Swab D, so "[t]here is no possibility that the steering
wheel swabs could have contaminated, or been switched with, the baseball bat
swab." CP at 313.
On October 25, 2012, the trial court held its final hearing on the motion for a
new trial. Defense counsel submitted no other evidence and called no witnesses. He
did dispute Heath's assertions that the steering wheel swabs could not have
contaminated the bat swab:
Based on [Dr. Hampikian's] review of the records . . . I believe
approximately August 16th 2007, is when the bat was tested. Based on
Dr. Ha[m]pi[]kian's review of the records, on August 14th, two days
prior ... the automobile, truck, steering wheel swabs were in the labPl
And this is the heart, I believe, of what we're talking about here.
So two days prior Ms. Olson had, in the lab, according to Dr.
Ha[m]pi[]kian's review of Washington State Patrol records, evidence
from the truck, evidence from inside the store.
4 VRP at 618 (Oct. 25, 2012).
2 These assertions are not supported by anything in the record before this court.
According to that record, Olson reported testing the bat on November 5, 2007, and the
steering wheel swab on December 4, 2007. CP at 275, 278; see also 3 VRP (July 12, 2012)
at 455 (Heath testifying that Olson tested Swab D on November 5, 2007). It is not clear
why defense counsel referred to the August dates at the Brady hearing. In his second
supplemental brief in this court, Davila argues that the August dates are correct and that
the "actual testing [of the bat and the steering wheel swabs] was [therefore] performed
within two days in August 2007 and the items were held together in the lab." Pefr's
Second Suppl. Br. Addressing New Issues Raised in State's Br. at 6. But in support of this
assertion, Davila cites only to the testimony excerpted above, by defense counsel.
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The court apparently accepted the factual assertion that the steering wheel
swab was in the Crime Lab before the bat sample was tested, but rejected defense
counsel's argument because the simultaneous presence of several evidentiary items
in the Crime Lab was not enough to suggest that cross contamination had occurred:
I think the question that I have, counsel, the fact that there are two or
three or four items in the lab, in and of itself, does not say whether or
not those items were in proximity at a time and a place where
contamination could have occurred. The fact that they are simply in the
lab, normally the case that I referenced to you before, they were being
tested all at the same time. So it wasn't just that they were in the lab;
they were in close proximity being tested. And as you can see on these
reports, there are a number of items on each report that were being
tested, four or five items on each report on different dates. But these
two items were not tested together. In other words, the bat was tested
with a few other items, the steering wheel was tested with a few items,
but they were not tested together, and apparently not on the same day.
That seems to be the issue to me. . . . So the fact that they were both
in the lab at the same time, in and of itself, does not mean a whole lot
to me. I do not have any evidence that they were necessarily either
mingled in the storage area, and it seems pretty clear from Ms. Heath's
certificates that they were not mingled in the testing.
Id. at 619-20. The trial court concluded that these facts were not enough to show
contamination in this particular case:
. We do know that Mr. Davila's DNA was not in the lab directly
from any prior conviction or prior matter, so the test sample for him
came in later. Ms. Heath has provided not only her certificate of where
she tested the materials, but also the reports that these materials were
not tested together. They were tested on separate days.
The first thing that was tested was the bat, and it is the bat that
has the DNA. The steering wheel ended up being inconclusive as to
whether or not Mr. Davila's DNA was even on it. So that was
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State v. Davila (Julio J.), No. 90839-7
inconclusive; it has never been identified specifically as an item that
had his DNA. The only thing that has been identified [as] an item that
had his DNA was the bat. That was tested first.
While I can appreciate counsel's concern in this matter about not
having known about it, the reality is that the information provided to
this jury came from Ms. Heath. She did the testing on it and essentially
supported Ms. Olson's testing. I appreciate the argument that once it is
contaminated, it is contaminated and the testing is going to come up the
same. Which is one of the reasons that I allowed counsel to go forward
on this matter, but I have not seen anything that is anything other than
speculation. The facts, as best I can see them, are that these items were
tested on different dates. The bat was tested first and the steering wheel
was inconclusive and the bat was not inconclusive.
Id. at 623-24.
Davila appealed, and the Court of Appeals affirmed. State v. Davila, 183 Wn.
App. 154, 333 P.3d 459 (2014). In Brady, the United States Supreme Court held
that "the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S.
at 87 (emphasis added). The Court of Appeals held that Olson's incompetence was
favorable to the accused and suppressed by the State-thus meeting the first two
Brady requirements. 183 Wash. App. at 167-70. But the court also concluded that the
new evidence was not material. !d. at 167-73.
The Court of Appeals acknowledged that Davila's defense would have
proceeded very differently if defense counsel had known that Olson was fired for
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State v. Davila (Julio J), No. 90839-7
incompetence. Specifically, the court noted that the defense could have called Dr.
Hampikian to testify about his concerns that DNA from the steering wheel swab
might have contaminated the bat swab. Id. at 171-72. But it held that Olson's
incompetence was not "material," under Brady, because "close review of the record
establishes little likelihood that her handling of the evidence could have
contaminated the evidence at issue." !d. at 172-73. Just as the trial court had done,
the Court of Appeals relied on Olson's own records to conclude that the steering
wheel and bat swabs were tested on different days, "astronomically reducing the
possibility of cross contamination." Id. at 172. Ultimately, the court concluded that
evidence of Olson's incompetence could have been used "for impeachment
purposes" but was not material because there was no evidence that Olson had
mishandled the DNA samples used to convict Davila. !d. at 173.
Davila petitioned for review, arguing that the Court of Appeals applied the
wrong legal standard when it determined that he had not satisfied Brady's materiality
requirement. State v. Davila, 182 Wash. 2d 1002, 342 P.3d 327 (2015).
ANALYSIS
The Court of Appeals was correct. In order to establish a Brady violation, a
defendant must establish three things: (1) "[t]he evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is impeaching," (2)
"that evidence must have been suppressed by the State, either willfully or
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State v. Davila (Julio J.), No. 90839-7
inadvertently," and (3) the evidence must be material. Strickler v. Greene, 527 U.S.
263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). The evidence that Olson
was inept was both favorable to the defense and suppressed by the State (which had
a detailed report on Olson's professional failings). But, despite the fact that the trial
court gave the defense three chances to present evidence in support of materiality,
the defense did not do so. On this record, the defense failed to prove materiality.
I. The Court of Appeals correctly held that evidence of Olson's
incompetence was favorable to the accused
As noted above, "'favorable"' evidence under Brady includes impeachment
evidence as well as exculpatory evidence. Strickler, 527 U.S. at 280 (quoting
Bagley, 473 U.S. at 676). The Court of Appeals concluded that Olson's
incompetence was favorable to the accused because it "would have opened an area
of impeachment that Mr. Davila was unaware of at the time of trial." Davila, 183
Wash. App. at 168. Citing this court's decision in Stenson, 174 Wash. 2d at 489, it noted
the importance of thoroughly cross-examining forensic analysts. We agree with the
Court of Appeals on this point.
The State asserts that Olson's deficiencies are not truly "exculpatory" since
the allegation that "Olson could have contaminated or mislabeled the samples was
mere speculation." Suppl. Br. of Resp't at 23 (formatting omitted). In support of
that claim it cites United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986),
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State v. Davila (Julio J.), No. 90839-7
United States v. Georgiou, 777 F.3d 125, 141 (3d Cir. 2015), cert.filed, No. 14-1535
(U.S. June 25, 2015), and United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985).
Suppl. Br. ofResp't at 23-24.
This authority is distinguishable. In Michaels, the defense sought access to
United States "postal inspectors' rough notes from witness interviews," speculating
that those notes might have proved that the defendant never actually mailed a
package of explosives. 796 F.2d at 1115. The court held that the notes were not
material because the defendant provided no basis for believing that they actually
contained exculpatory information. Id. at 1116.
Similarly, in Georgiou, the defendant sought notes from two Securities
Exchange Commission interviews of a witness for the prosecution. 777 F.3d at 141.
The court held that there was no basis in the record to suggest that the notes
contained any Brady material. I d. And in Andrus, the defendant sought to compel
discovery of law enforcement witness personnel files. 775 F.2d at 843. The court
held that the defendant had no basis for concluding that the files contained Brady
material and was not entitled to discovery based on speculation alone. Id.
Unlike the situations in Michaels, Georgiou, and Andrus, here we know
exactly what the alleged Brady material contains: evidence that Olson made
numerous mistakes in her forensic analytical work and that the Crime Lab
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State v. Davila (Julio J), No. 90839-7
nevertheless continued to employ her for several years after the mistakes first
surfaced.
II. The Court of Appeals correctly held that the State suppressed evidence
of Olson's incompetence
Under Brady, the prosecution has a duty to seek out exculpatory and
impeaching evidence held by other government actors. Kyles, 514 U.S. at 438.
Thus, the prosecution "suppresses" evidence, for purposes of Brady, even if that
evidence is held by others acting on the government's behalf, e.g., police
investigators. ld.; see also Strickler, 527 U.S. at 283 n.23 (if prosecution asserts that
it complies with Brady through an open file policy, defense counsel may rely on file
to contain all Brady materials). As the State now appears to aclmowledge, the Crime
Lab is an arm of the State whose lmowledge is imputed to the prosecution for
purposes of Brady. See United States v. Giglio, 405 U.S. 150, 154, 92 S. Ct. 763, 31
L. Ed. 2d 104 (1972) (one federal prosecutor's lmowledge imputed to another federal
prosecutor for purposes of Brady suppression inquiry). For this reason, the trial
court was wrong to suggest that the prosecution had no obligation to discover or
disclose the records pertaining to Olson's incompetence. 3
3 Davila argues that the trial court confused Brady suppression with prosecutorial
misconduct and therefore applied the wrong legal standard to his Brady claim. Had the
court rejected Davila's motion for a new trial on the basis that the State had no obligation
to disclose evidence of Olson's incompetence, we would agree. But the trial court did not
conclude that Davila failed Brady's suppression requirement. On the contrary, it ruled that
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Nevertheless, the State argues that it could not have "suppressed" evidence of
Olson's incompetence since Olson was listed as a witness for the defense. It
contends that the defense listed Olson as a potential expert witness and should
therefore have discovered the facts of her termination through the normal expert-
witness-vetting process. Suppl. Br. of Resp't at 22 ("the defense attorneys in the
present case had an elementary and fundamental obligation to at least question their
listed expert witness, Ms. Olson, before trial about her qualifications and work
history with the Washington State Patrol").
Davila counters that the defense never listed Olson as an expert witness but
instead considered calling her only as a fact witness "regarding 'chain of custody
issues' and DNA tested from Allen's truck." Pet'r's Second Suppl. Br. Addressing
New Issues Raised in State's Br. at 7 (citing 4 VRP at 575-78 (Aug. 1, 2012); CP at
283).
The record supports his contention. The defense mentioned Olson only once
in the trial court, when it discussed its anticipated cross-examination of Heath:
THE COURT: Mr. Krzyminski, do you have witnesses available
for tomorrow if we need them?
MR. KRZYMINSKI: The witness that I would anticipate is
Denise Olson, your Honor. In my conversations with Mr. Nagy, I
believe the testimony that I can elicit from Denise Olson I can get from
Davila was entitled, under Stenson, 174 Wash. 2d 474-a Brady case-to an evidentiary
hearing on materiality.
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Lorraine Heath. If that worked out all fine, I would not be calling
Denise Olson. But again that's subject to Ms. Heath. I'm anticipating
that she can answer the questions I would have because it has to do with
the previous tests [performed for Davis' case]. And [Heath] didn't
work there in 2007, 2008 when these items were being tested but she
does have the reports available.
2 VRP at 398-99 (emphasis added) (July 11, 2012). It is clear from this exchange
that defense counsel anticipated calling Olson only as a fact witness regarding the
handling of relevant DNA evidence in Davis' case. The defense did not, as the State
argues, list Olson as an expert witness. Even if it had, the defense would not thereby
waive the defendant's constitutional Brady protections.
Further, the defense had no reason to investigate Olson's reasons for leaving
the Crime Lab just because she was a possible witness. For this reason, all of the
authority that the State cites on the defense's duty to exercise due diligence in
discovering exculpatory evidence is distinguishable. 4 The Court of Appeals
correctly held that the prosecution suppressed evidence of Olson's incompetence in
the Crime Lab, and of testifying witness Heath's knowledge of this incompetence,
for purposes of the Brady analysis.
4In support of this argument, the State cites State v. Mullen, 171 Wash. 2d 881, 896,
259 P.3d 158 (2011), State v. Gregory, 158 Wash. 2d 759, 798, 147 P.3d 1201 (2006),
overruled on other grounds by State v. W.R., 181 Wash. 2d 757, 336 P.3d 1134 (2014), State
v. Thomas, 150 Wash. 2d 821, 851, 83 P.3d 970 (2004), In re Personal Restraint of Gentry,
137 Wash. 2d 378, 396, 972 P.2d 1250 (1999), and In re Personal Restraint of Benn, 134
Wash. 2d 868, 916, 952 P.2d 116 (1998). All of these cases address situations in which
defense counsel failed to pursue lines of inquiry that should have been obvious given what
the prosecution disclosed prior to trial.
20
State v. Davila (Julio J.), No. 90839-7
III. The Court of Appeals correctly held that evidence of Olson's
incompetence was not material under Brady given the specific facts in
this record
Evidence is material under Brady "'if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
have been different."' Kyles, 514 U.S. at 433-34 (quoting Bagley, 473 U.S. at 682).
To satisfy this standard, a defendant need not demonstrate by a preponderance that
he would have been acquitted had the suppressed evidence been disclosed. Id. at
434. Instead, he or she must show only that "the government's evidentiary
suppression 'undermines confidence in the outcome of the trial."' I d. (quoting
Bagley, 473 U.S. at 678). There is no separate, additional prejudice inquiry.
The parties' substantive arguments on materiality are intertwined with an
argument over the applicable standard of review. The defense argues that, at least
in this case, we should review both the trial court's conclusions of law and its
findings of fact de novo. The State acknowledges that this court reviews Brady
claims de novo, but it contends that deference is owed the factual findings underlying
a trial court's ruling on a Brady claim. Suppl. Br. ofResp't at 12.
For the following reasons, we conclude that (a) Brady materiality is a legal
question that is reviewed de novo, but the trial court's underlying factual findings
are reviewed for substantial evidence; (b) the trial court applied the correct legal
standard when it denied Davila's Brady claim, even though it used some imprecise
21
State v. Davila (Julio J.), No. 90839-7
language; and (c) on the basis of the available evidence, the trial court did not err in
concluding that Item 24 could not have contaminated Swab D.
A. Whether suppressed evidence is "material" is a legal question that
is reviewed de novo, but the trial court's underlyingfactualfindings
are reviewed for substantial evidence in the record
In State v. Mullen, 171 Wash. 2d 881, 893-94, 259 P.3d 158 (2011), this court
stated that it reviews Brady claims de novo. But it did not specifically address the
issue of deference to the trial court's factual determinations-it simply agreed with
the trial court's decision to deny the defendant's motion for a new trial. Jd. at 887,
898-905. In Stenson, 174 Wash. 2d at 488-a personal restraint petition-this court
explained that Brady materiality is a mixed question of fact and law, which "[w]e
review ... de novo by applying the reference hearing facts to the law and drawing
our own legal conclusions."
This precedent applies a typical mixed standard of review for Brady claims:
the trial court's legal conclusions about materiality are reviewed de novo, but its
underlying factual findings are reviewed for substantial evidence in the record. 5 This
5 "Generally, [factual] findings are viewed as verities, provided there is substantial
evidence to support the findings. State v. Halstien, 122 Wash. 2d 109, 128, 857 P.2d 270
(1993). Substantial evidence exists where there is a sufficient quantity of evidence in the
record to persuade a fair-minded, rational person of the truth of the finding. Halstien, at
129." State v. Hill, 123 Wash. 2d 641, 644, 870 P.2d 313 (1994).
22
State v. Davila (Julio J), No. 90839-7
is consistent with federal appellate court precedent on Brady materiality. 6 Thus,
while the trial court's factual conclusions receive some deference, the ultimate
constitutional question-whether the suppression of evidence deprived the
defendant of due process-is reviewed de novo. 7
6 E.g., United States v. Reese, 745 F.3d 1075, 1083 (lOth Cir. 2014) (trial court's
ruling on Brady claim reviewed de novo, but underlying factual findings reviewed for clear
error); United States v. Dado, 759 F.3d 550, 559 (6th Cir. 2014) (in reviewing Brady claim,
"we give considerable deference to the district court's factual findings and factual
conclusions, but we review de novo the district court's conclusions about the legal
significance of those findings''); United States v. Wilson, 624 F .3d 640, 660 n.24 (4th Cir.
201 0) ("motions for a new trial based on an alleged Brady violation are reviewed for abuse
of discretion [, but i]t is an abuse of discretion for the district court to commit a legal error-
such as improperly determining whether there was a Brady violation-and that underlying
legal determination is reviewed de novo" (citing United States v. Stokes, 261 FJd 496, 502
(4th Cir. 2001))); United States v. Banks, 546 F.3d 507, 508-10 (7th Cir. 2008) (trial court's
ruling on Brady-based motion for new trial reviewed for abuse of discretion; evidence is
"material" under Brady if it creates reasonable probability of different outcome); United
States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005) (materiality is a mixed question of fact
and law; trial court's factual determinations entitled to deference; but legal rulings
reviewed de novo); United States v. Sipe, 388 F.3d 471,479 (5th Cir. 2004) (appellate court
reviewing Brady claim should defer to trial court's factual findings "while reviewing the
ultimate constitutional question afresh"); United States v. Newton, 44 FJd 913, 919 (11th
Cir. 1994) (trial court did not abuse its discretion in concluding that suppressed evidence
was not material under Brady since "[i]ts suppression does not 'undermine confidence in
the outcome of the trial'"); United States v. Thornton, 1 F.3d 149, 158 (3d Cir. 1993) (in
review of Brady claim, district court's factual findings reviewed for clear error, legal
conclusions reviewed de novo).
7 This is because when an appellate court determines whether exculpatory evidence
is "material" under Brady, it must determine whether, had the defense been able to present
that evidence to the jury, any juror might have had a reasonable doubt as to guilt. United
States v. Augurs, 427 U.S. 97, 112-13, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) ("if the
omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional
error has been committed"); Stenson, 174 Wash. 2d at 493-94 (suppressed evidence material
because it "undermines confidence in the jury verdict"). This is a legal question-whether
the defendant has been afforded due process; as such, it is reviewed de novo.
23
State v. Davila (Julio J), No. 90839-7
B. The trial court applied the correct legal standard for materiality in
this case
As noted above, Davila argues that the trial court applied the wrong standard
for materiality when it denied his motion for a new trial. Specifically, he contends
that the trial court should have asked whether Olson's termination for incompetence
would have allowed him to impeach the overall carefulness of the Crime Lab-not
whether there was any reasonable possibility that Olson contaminated the evidence
used in his case.
Davila argues that the facts underlying Olson's termination "undercut the
credibility of the person who first handled, extracted, amplified, and tested the DNA
samples from the crime scene"-Olson-and "impeached the carefulness of the
Crime Lab." Suppl. Br. of Pet'r at 7. He maintains that the defense would have
employed a fundamentally different strategy had it known of these facts. Davila
points out that Heath testified to the rigorous accreditation standards that the Crime
Lab must meet, including regular audits of every lab scientist's proficiency. He
argues that had the defense known how long the Crime Lab employed a scientist
with serious deficiencies like Olson's, it could have tried to impeach Heath's
testimony by calling an expert to explain the risk of error that Olson posed and
investigating the possibility that Heath wanted to downplay that risk.
24
State v. Davila (Julio J), No. 90839-7
But in all of the cases on which Davila relies, the defense actually developed
factual data that would support a legal finding of materiality.
In Benn v. Lambert, 283 F.3d 1040, 1055 (9th Cir. 2002), for example, the
prosecution failed to disclose the fact that an informant-witness had a history oflying
and was viewed by law enforcement as untrustworthy. And in Amado v. Gonzalez,
758 F.3d 1119, 1139 (9th Cir. 2014), the prosecution failed to disclose the facts that
a gang rivalry and the desire to seek favor with probation officers might have
motivated its primary witness to testify against the defendant. In both of these cases,
it was readily apparent what strategy the defense would have pursued had it known
of the suppressed impeachment evidence. And, more to the point, it was readily
apparent that this strategy would have seriously undermined the prosecution's
theory.
The other two cases Davila cites are similar, although they deal specifically
with forensic evidence. In Aguilar v. Woodford, 725 F.3d 970, 971 (9th Cir. 2013),
the prosecution introduced evidence that a police dog had alerted to the scent of the
defendant at the scene of the crime. The other evidence against the defendant was
weak, and substantial evidence suggested that another person had committed the
crime, a shooting. Id. The Ninth Circuit held that the dog's history of mistaken
scent identifications was material under Brady. Id. at 983-85.
25
State v. Davila (Julio J.), No. 90839-7
In Stenson, the defendant was convicted of shooting two victims to death. 17 4
Wash. 2d at 487. The State's case rested in part on forensic evidence showing (1)
gunshot residue inside the front right pocket of the defendant's jeans and (2) blood
spatter on the front of the same jeans. !d. at 478. Long after trial, postconviction
counsel discovered two pieces of impeaching evidence: (1) a photograph of the lead
detective, who testified at trial and supervised the entire investigation, showing him
wearing the defendant's jeans and turning out the right pocket with an ungloved hand
and (2) an Federal Bureau of Investigation file revealing that a trainee, and not the
expert witness who testified for the State, had actually performed the gunshot residue
testing. !d. at 479, 491. After a lengthy evidentiary hearing addressing the handling
of the jeans, this court held that the photograph tended to "demonstrate ... that a
key exhibit in the case ... had [in fact] been seriously mishandled and compromised
by law enforcement investigators." Id. at 492.
Thus, in both Aguilar and Stenson, the Brady evidence at issue tended to
completely neutralize the prosecution's most significant evidence. In Aguilar, the
Brady evidence allowed the defense to argue that the scent identification was
incorrect, like many of the police dog's other scent identifications had been. And in
Stenson, the evidence undermined key scientific evidence in the State's case.
26
State v. Davila (Julio J), No. 90839-7
We agree with Davila that he could have used the facts of Olson's ineptitude
to generally undermine the Crime Lab's reputation with the jury, 8 but we conclude
that the defense failed to meaningfully connect Olson's ineptitude with the evidence
used to convict Davila. Put another way, the defense failed to develop facts showing
that Olson's ineptitude and termination were material in this case. To be sure, the
prosecution's Brady duties "encompass[] impeachment evidence as well as
exculpatory evidence." Strickler, 527 U.S. at 280 (emphasis added) (citing Bagley,
8
We reject the State's argument that Evidence Rule (ER) 608(b) would have barred
the admission of Olson's incompetence and firing at trial. Suppl. Br. ofResp't at 17-18.
ER 608(b) provides:
Specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, other than conviction of crime as
provided in rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross examination of the witness ( 1)
concerning the witness' character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified.
The purpose of this rule is to prevent irrelevant character assassination, not to bar evidence
that the State may have botched or misrepresented its investigation. See State v. Benn, 120
Wn.2d 631,651,845 P.2d 289 (1993) (where defense was permitted to thoroughly cross-
examine witness about his exchange of testimony for reduced sentence, trial court properly
barred cross-examination regarding witness' prior drug dealing); State v. Wilson, 60 Wn.
App. 887, 893, 808 P.2d 754 (1991) (specific instances of conduct admissible under ER
608(b) if relevant to veracity). Moreover, at Davila's trial Heath testified at length about
the integrity of the Crime Lab's procedures and the rigorous audits to which it is subject,
thereby putting the Lab's competence directly at issue. Evidence that the Crime Lab
employed an incompetent scientist for years was certainly relevant to impeach that
testimony-and it does not implicate ER 608(b) at all. See Bagley, 473 U.S. at 676-77
(Brady material includes impeaching as well as exculpatory evidence).
27
State v. Davila (Julio J), No. 90839-7
473 U.S. at 676). But the effect of any omission must be evaluated cumulatively,
Kyles, 514 U.S. at 440, and in the context of the whole trial record, Augurs, 427 U.S.
at 112-13. Indeed, if impeachment value alone were sufficient to warrant a new trial,
thei·e would be no need for the third Brady prong (the materiality inquiry). 9
But in this case, even if Olson's test results were untrustworthy, the defense
still faced the problem of Swab D (the baseball bat swab). Testing by both Olson
and Heath revealed the presence of Davila's DNA on that swab.
Davila seeks to attribute both of those inculpatory test results to Olson's
incompetence, but he suggests only one theory that could support that attribution:
9
This does not relieve prosecutors of the obligation to disclose impeachment
evidence that might not reach "materiality" threshold under Brady. Such suppression
would not violate the constitution, but it might well violate a prosecutor's professional
obligations. In Washington, Rules of Professional Conduct (RPC) 3.8 provides:
The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense and, in connection with sentencing, disclose
to the defense and to the tribunal all mitigating information known to the
prosecutor, except when the prosecutor is relieved of this responsibility by a
protective order of the tribunal.
We note that at least one Court of Appeals has held that the prosecution's failure to disclose
potentially exculpatory evidence may violate an RPC governing disclosure obligations,
even if the evidence ultimately proves nonmaterial under a Brady analysis. In re Andrew
J. Kline, 113 A.3d 202 (D.C. 2015).
28
State v. Davila (Julio J), No. 90839-7
the theory that Item 24 did have Davila's DNA on it (even though testing of Item 24
by both Olson and Heath was inconclusive for Davila's DNA), that Olson handled
Item 24 before handling Swab D (or handled them simultaneously), and that Olson
thereby contaminated Swab D with DNA from Item 24. 10 Timing was thus crucial
to Davila's argument on materiality. Yet he never offered any fact or called any
witness who could have supported his theory that Olson in fact handled Item 24
before she handled Swab D or that those two items were otherwise mingled in the
Crime Lab, even though the trial court gave him two continuances to do so. Indeed,
the only evidence presented at the Brady hearing supported the opposite conclusion.
Given the specific facts of this case, the trial court was correct to require some
evidence that Item 24 could have contaminated Swab Din order to find materiality.
Without that evidence, Olson's termination for incompetence does not seriously
undermine Heath's testimony that Davila's DNA was on the handle of the baseball
bat used to kill Allen.
The trial court did err when it stated that Davila needed to prove "on a more
likely than not basis, [that] Mr. Davila's DNA was on something that was in the lab
10
Suppl. Br. ofPet'r at 14 ("Swab D was the only DNA connection between Davila
and the crime scene, and Heath used 'the remaining portion of this swab' used first by
Olson." (citing CP at 281)), 17 ("Olson was a critical link in the State's chain of custody");
Pet'r's Second Suppl. Br. Addressing New Issues Raised in State's Br. at 6 (arguing that
Item 24 could have contaminated Swab D because Olson tested both items within a short
period oftime).
29
State v. Davila (Julio J), No. 90839-7
at the relevant time." 4 VRP at 612-13 (emphasis added) (Oct. 19, 2012); see supra
page 21. But since Davila did not establish any likelihood of contamination at all,
under any standard, this misstatement is irrelevant.
C. On the basis of the available evidence, the trial court did not err
when it concluded that there was no reasonable probability of
contamination
As noted above, the trial court found that there was no evidence of
contamination because Item 24 and Swab D were tested on different days and Swab
D was tested first. 4 VRP at 623-24 (Oct. 25, 2012). Davila challenges this finding
in two ways.
First, Davila argues that it does not matter whether Item 24 and Swab D were
tested on different days. He contends that Item 24 could have contaminated Swab
D solely by virtue of the fact that the two samples were held together in the lab and
handled by Olson. Pet'r's Second Suppl. Br. Addressing New Issues Raised in State's
Br. at 6. Second, Davila argues that the Court of Appeals (and, by extension, the
trial court) should not have relied on Olson's reports to conclude that Item 24 and
Swab D were tested on different days since sloppy record keeping was one of the
reasons that Olson was fired. Pet'r's Suppl. Br. at 18. We reject both of these
arguments.
To support his argument on cross contamination, Davila offered only Dr.
Hampikian's declaration, which stated that cross contamination could have occurred
30
State v. Davila (Julio J.), No. 90839-7
because Olson, an incompetent scientist, handled both samples. But, as the trial
court pointed out at the second hearing on the motion for a new trial, Item 24 could
not have contaminated Swab D unless those items were actually commingled-for
example, by Olson's handling them simultaneously or handling Item 24 before
handling Swab D-and on this factual question, Dr. Hampikian had no knowledge
whatsoever. Thus, his observation that Olson's incompetence might have led to
cross contamination was speculative for purposes of the materiality inquiry.
In fact, the only evidence regarding the actual handling of Item 24 and Swab
D-Heath's certificate and Olson's records-supported the State's argument on
materiality: that Olson tested (and therefore handled) Swab D weeks before she
tested Item 24. We agree with Davila that this evidence was not perfect-Heath is
the very witness that Davila sought to impeach 11 and Olson's records are inherently
suspect given her propensity for error. But this imperfect evidence was unrebutted.
The defense offered no evidence of its own to help the trial court decide if
Hampikian' s cross contamination theory had any possible application to the facts of
11
We also note that Heath's certificate assumes that Dr. Hampikian was referring
to Item 23 in his report on the potential for contamination: "The swab from the steering
wheel (Item 23) referred to by Dr. Greg Hampikian in his 'Report on Possible DNA Errors
by Forensic Scientist 3 Denise Olsen [sic], in the Julio Josef Davila case' was not in Ms.
Olson's possession during her testing of the swabs from the baseball bat." CP at 313.
However, it is clear that Dr. Hampikian was referring to Item 24, the steering wheel sample
with the most evidentiary value, according to Olson's reports and Heath's certificate, and
the only item that Davila suggests could have contaminated the Swab D. !d.
31
State v. Davila (Julio J.), No. 90839-7
this case. Davila didn't show where Crime Lab evidence is stored, how it is
generally handled, whether that was different in 2007, or what could have occurred
in this case to mingle Swab D and Item 24.
The defense has the burden to produce facts in support of its theory, and the
defense failed to develop any such facts in this case. Thus, the trial court did not err
when it determined that there was no reasonable probability of contamination.
CONCLUSION
The defense failed to present any evidence m support of its claim that
contamination was areal possibility in this case. Based on the defense's presentation
in the Brady hearings, the trial court reached the right conclusion on materiality. We
agree with the Court of Appeals' analysis on all three Brady requirements, and we
therefore affirm.
32
State v. Davila (Julio J), No. 90839-7
WE CONCUR:
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33