State of Washington v. Simon C. Stotts ( 2020 )

FILED
MARCH 10, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36270-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
SIMON C. STOTTS, )
)
Appellant. )
FEARING, J. — We must decide whether a MedTox scan analyzer that tests urine
for the presence of drugs must meet the Frye test and whether a manufacturer’s
disclaimer on the test results sheet renders the results untrustworthy and inadmissible.
We hold that the scan analyzer’s immunoassay process need not undergo a Frye hearing
because of its general acceptance in the scientific community. We further hold that the
disclaimer did not injure the reliability of the drug screen’s results to the extent of
rendering the results inadmissible. We affirm Simon Stotts’ conviction for assault of a
child in the third degree.
FACTS
Simon Stotts and his partner, Talonna Baldwin, drove Baldwin’s three-year-old
niece, Allison, from the child’s grandmother’s home in Republic to Allison’s home in
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Colville. Allison is a pseudonym. Allison slept during the hour long forested ride from
Republic to Colville.
Allison encountered her great aunt, Karen Jones, on returning home. According to
Jones, Allison acted unusually because Allison showed no excitement. Typically, Allison
hugged Jones when Allison returned home, but Allison lethargically walked to the couch
and sat. Jones asked Allison for an embrace, but Allison remained couchsitted and
complained about a “headdit,” three-year-old speak for a headache. Report of
Proceedings (RP) at 139. Jones observed Allison having dilated pupils. RP 140. Allison
commented that “Auntie Nona” (Talonna Baldwin) and Simon Stotts had smoked in the
car and the smoke smelled “like Diva’s pee.” RP at 140-41. Diva is Karen Jones’ cat.
Allison expressed a wish to die from her pain.
Karen Jones and Allison’s uncle, Devin Casey, drove Allison to Colville’s Mount
Carmel Hospital. Emergency room physician Dr. Sally Sartin examined Allison at the
hospital. Allison complained of a stomach ache and feeling “weird all over.” RP at 219.
Dr. Sartin ordered a urine drug screen test for Allison. The hospital’s medical
technologist Jodie Murrell-Scott performed an immunoassay test, on the urine sample,
with a MedTox scan analyzer. The test result sheet contained the following language:
This entire battery is for screening purposes only. Results are not
confirmed. Please note: Some medications cause positive results with any
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or all tested drugs in this battery. Results from any unconfirmed drug in
this screening battery should not be used for legal purposes.
Clerk’s Papers (CP) at 5; Exhibit 1. The drug screen found opiates in Allison’s urine. As
a result, Sartin opined that someone exposed three-year-old Allison to opioids.
PROCEDURE
The State of Washington charged Simon Stotts with assault of a child in the third
degree or, in the alternative, reckless endangerment. The State charged Talonna Baldwin
with the same crimes, and the charges against both Stotts and Baldwin proceeded during
the same trial.
During discovery, Simon Stotts asked the State to disclose the following
information: the name of the instrument used to detect opiates in Allison’s system, the
maintenance records for the urine screening instrument, the manual for the instrument,
and the name of the individuals who collected Allison’s sample and tested the sample.
The State did not respond to the discovery request. Stotts does not complain about the
failure on appeal.
Before trial, Simon Stotts brought a motion, under Frye v. United States, 54 App.
D.C. 46, 293 F. 1013 (1923) and ER 702, to suppress evidence of the results of the
MedTox scan analyzer urine drug screen. Stotts highlighted the language on the test
result sheet that declaimed: “Results are not confirmed.” “Some medications cause
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positive results with any or all tested drugs in this battery.” “Results from any
unconfirmed drug in this screening battery should not be used for legal purposes.” CP at
5; Exhibit 1. Stotts also argued for suppression on the basis that the State failed to answer
the discovery request. The State responded that the disclaimer on the screening test went
to the weight, not admissibility, of the results. The trial court reserved a ruling on the
motion to suppress until trial.
After the commencement of trial, Simon Stotts asked for a Frye hearing as to the
admissibility of the urine test results for Allison. In response, the trial court directed the
State to question the medical technologist for the purpose of laying a foundation for the
admissibility of the drug screen results.
Outside the presence of the jury, the State presented the testimony of Mount
Carmel Hospital medical technologist Jodie Murrell-Scott. Murrell-Scott holds a
bachelor’s degree in biology. She has served as a medical technologist since 2003 and
has received training using the drug screen test instrument, a MedTox scan analyzer,
which generated the results from the testing of Allison’s urine. The analyzer performs an
immunoassay test on urine samples. The hospital uses the test results for medication
compliance and diagnosis and treatment of patients. The analyzer is the only machine
available to run drug screen tests at the hospital.
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Jodie Murrell-Scott testified that she had operated the MedTox scan analyzer for
more than one year. Murrell-Scott passed a competency examination to operate the
MedTox machine.
Jodie Murrell-Scott testified about the testing of the MedTox scan analyzer by
Mount Carmel Hospital before the hospital first operated the machine for patients:
So our technical specialist and our medical director have to go
through a rigorous correlation study, where they study—known samples and
verify that this instrument is producing valid results, before we can actually
go live.
Then we also have to perform QC, quality control—and so once that
happens and the medical director looks at the data then they would sign
off—he signs off on it.
....
Then we can start using it for medical purposes.
RP at 183. Hospital staff conducts quality control procedures on the MedTox instrument
every week. The specialist always uses many samples to confirm the accuracy of the
machine. To her knowledge, the drug screening machine has never failed a quality
control test. Nevertheless, Murrell-Scott does not know the accuracy levels of the
instrument or the likelihood of false positives. Physicians at Mount Carmel Hospital rely
on the MedTox scan analyzer results when diagnosing and treating patients.
According to Jodie Murell-Scott, the hospital could send the urine sample to a
laboratory in Spokane for additional analysis and confirmation. We do not know the
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nature of the additional testing or the identity of the machine or machines used by the
Spokane lab. Murell-Scott has never sent a urine sample to Spokane for confirmation.
Jodie Murrell-Scott described the process she employs when a hospital employee
deposits a urine sample in the hospital laboratory. The State then asked Murell-Scott
about the written disclaimer printed at the end of the test results.
Q. [THE STATE]: So, this—and on the results it says . . .
“The entire battery is for screening purposes only. They are not—
results are not confirmed, and results from any unconfirmed drug in a
screening battery should not be used for legal purposes.”
Are you familiar with that at all, or is that not something you see.
A. [MURRELL-SCOTT]: I have seen that, yes. That’s a canned
comment that goes on every patient result like that. So, I don’t—But I
don’t pay attention to that because that’s—that was built as part of the test.
Q. [THE STATE]: Okay. . . . So this is unconfirmed a second test. .
. . What does “unconfirmed” mean.
A. [MURRELL-SCOTT]: “Unconfirmed” means that this is initial
screening, and if the provider would like it to be confirmed then we save the
sample for thirty days, and then they—we would send it out to Sacred Heart
and they would—I don’t know if they send it on to—well, it used to be
PAML, but LabCore bought them, so I don’t know if they send it there. But
that is our procedure; we would send it out.
RP at 185-86.
The trial court denied Simon Stotts’ motion to suppress the urine test result. The
court reasoned that acceptance of the MedTox scan analyzer screen results did not require
a Frye test because the instrument did not employ new scientific principles. The trial
court emphasized that the treating physician, Dr. Sally Sartin, relied on test results when
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diagnosing Allison’s ailment. The lack of a later confirmation of the initial drug
screening by the instrument went to the weight of the testimony and accuracy of the test
result, not the admissibility of the evidence.
After the trial court’s denial of Simon Stotts’ motion to suppress, the jury heard
testimony from medical technologist, Jodie Murrell-Scott. Murrell-Scott repeated much
of the testimony rendered during the hearing to suppress. Murrell-Scott added that other
hospitals also use the MedTox scan analyzer. She reiterated that she did not know the
“uncertainty measurement” for the machine and she did not know how often false
positives occur. RP at 214-15.
After the testimony of Jodie Murrell-Scott, the State called Dr. Sally Sartin, a
board certified family medicine doctor, to testify. Dr. Sartin averred that Allison
complained of a stomach ache and “feeling weird” when she visited Mount Carmel
Hospital. RP at 219. Sartin ordered a urine drug screen because she concluded that
Allison may have been exposed to drugs. In making her final diagnosis, she relied on the
lab test results generated by medical technologist Murrell-Scott.
During the testimony of Dr. Sally Sartin, the State asked for admission of the urine
test results for Allison. The trial court admitted the results as an exhibit.
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Dr. Sally Sartin continued with her testimony during trial. Sartin explained that
the MedTox scan analyzer screens for any possibility that a patient may be under the
influence of drugs. Dr. Sartin confirmed that she uses the drug screen results for
diagnosis purposes. According to Sartin, Mount Carmel Hospital never sends a positive
urine sample of a patient to another facility for confirmation by more sensitive testing.
When asked why not, Dr. Sartin replied:
At that point I’m—usually not dealing with a—a legal circumstance.
So, like I said, it was mainly for diagnosis purposes. I don’t feel at that
point that I need to send it out for confirmatory testing.
RP at 225. Dr. Sartin opined that Allison had likely been exposed to drugs, although
Sartin could not rule out the possibility of a positive opiate result due to poppy seed
consumption.
During their cases, neither Simon Stotts nor Talonna Baldwin presented testimony
challenging the accuracy or accepted use of the MedTox scan analyzer by the medical
community. Simon Stotts testified that he did not smoke drugs in the car on his way from
Republic to Colville with Allison in the vehicle. Stotts’ codefendant, Talonna Baldwin,
also testified that no one smoked in the vehicle.
The trial court instructed the jury on the alternative charges of third degree assault
of a child and reckless endangerment. The jury returned a verdict of guilty on the charge
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of assault of a child in the third degree. The trial court sentenced Simon Stotts to thirty
days’ confinement and twelve months of community custody supervision.
LAW AND ANALYSIS
On appeal, Simon Stotts renews his argument that the trial court should have
excluded the urine drug test screen under the Frye test, Frye v. United States, 54 App.
D.C. 46 (1923), and under ER 702. Stotts emphasizes that Mount Carmel Hospital could
have sent, but did not send, Allison’s urine sample to another laboratory for confirmatory
testing, and Stotts highlights the disclaimer language on the test results. We address
separately the Frye test and the evidence rule.
Frye Test
As a general rule, the trial court must exclude expert testimony involving scientific
evidence unless the testimony satisfies both Frye and ER 702. Lakey v. Puget Sound
Energy, Inc., 176 Wn.2d 909, 918, 296 P.3d 860 (2013). Washington applies the Frye
test to determine the admissibility of novel scientific evidence. State v. Copeland, 130
Wn.2d 244, 261, 922 P.2d 1304 (1996). The Frye test comprises two prongs: (1) whether
the scientific community accepts the underlying theory, and (2) whether techniques
utilizing the theory produce reliable results. State v. Riker, 123 Wn.2d 351, 359, 869 P.2d
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43 (1994). The Frye test aims to exclude, from a trial, novel scientific evidence not
accepted in the scientific community. State v. Copeland, 130 Wn.2d at 256.
Frye does not concern itself with the acceptance of the results of a particular study
or the particular testing procedures followed in the case before the court. State v. Russell,
125 Wn.2d 24, 51, 882 P.2d 747 (1994). ER 702 addresses these concerns.
Washington courts apply the Frye test only to evidence involving new or novel
scientific principles or new methods of proof. State v. Baity, 140 Wn.2d 1, 10, 991 P.2d
1151 (2000); State v. Noltie, 57 Wn. App. 21, 29-30, 786 P.2d 332 (1990), aff’d, 116
Wn.2d 831, 809 P.2d 190 (1991). We principally rely on this rule when affirming the
trial court’s declination of a Frye hearing. In State v. Noltie, the court held Frye does not
apply to colposcopic evidence because the general medical community employs the
evidence and the evidence is no more “novel” than binoculars. Even though its use in
child abuse cases was relatively recent, this court held Frye did not apply.
Neither party cites case law regarding urinalysis and its use or admissibility of
results. Although not cited by either party, the 2002 case, People v. Nolan, 95 Cal. App.
4th 1210, 116 Cal. Rptr. 2d 331 (2002), helps. We adopt the reasoning from People v.
Nolan.
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In People v. Nolan, a court order demanded that Jennifer Nolan participate in a
drug court program as part of probation. Nolan submitted a urine sample to her program
coordinator, which sample tested positive for marijuana. At Nolan’s probation revocation
hearing, the program coordinator testified he used an ADx Abbott Bench Analyzer to test
the urine sample. Nolan’s counsel objected to the admissibility of the results under Frye.
On appeal, Jennifer Nolan targeted the ADx Analyzer device as novel, and she
argued that its results were inadmissible. The California appellate court declined to
decide whether the Frye test applied to probation revocation hearings. Instead, the court
ruled that the bench analyzer did not employ a new scientific technique. The court
declared urinalysis to be a medically accepted and widely used method of drug testing.
Both the ADx machine and the older enzyme immunoassay test use the well-accepted
immunoassay scientific technique to detect drugs in urine. The court recognized that
manufacturers will continue to market new instruments and devices, but, if those devices
implement established scientific methods, a Frye hearing is not needed to introduce
results from the new devices. Frye applies to new methodologies, not to new inventions
that employ established techniques.
Mount Carmel Hospital utilized the MedTox scan analyzer, which employed
immunoassay testing of urine similar to the ADx analyzer. Jodie Murrell-Scott, the
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medical technologist, testified that the test results generated were relied on by medical
professionals when diagnosing patients. Dr. Sally Sartin confirmed this testimony.
Simon Stotts presented no contrary evidence that the MedTox scan analyzer utilized novel
scientific methods.
Other foreign cases have held that the trial court need not conduct a Frye hearing
before admitting urinalysis results. In Somers v. State, 368 S.W.3d 528 (Tex. Crim. App.
2012), the court held that the enzyme-multiplied immunoassay technique test, probably a
forerunner to MedTox scan analyzer’s immunoassay testing, suffices as reliable scientific
evidence, with or without a confirmation test, for purposes of determining admissibility of
test results. In State v. Leep, 212 W. Va. 57, 569 S.E.2d 133 (2002), the court also held
admissible the results immunoassay tests performed on a child in a prosecution against
the parent for sexual assault. The results showed that the child suffered from chlamydia,
a sexually transmitted disease. The court deemed the results reliable and relevant. The
accused could challenge the weight and credibility of test results through cross-
examination and rebuttal.
At least one case entails the use of a MedTox device, although the decision did not
directly address the admissibility of test results from the device. In State v. Weaver, 178
Ohio App. 3d 504, 2008-Ohio-5022, 898 N.E.2d 1023, the appellate court affirmed a
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conviction of a parent for poisoning her minor son. The conviction turned in part on
testing of the son’s urine by a medical device produced by MedTox Laboratories.
ER 702
We now address the admissibility of the MedTox scan analyzer test results under
ER 702. ER 702 declares:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
We review the trial court’s decision to admit or reject evidence under ER 702 under an
abuse of discretion standard. State v. Roberts, 142 Wn.2d 471, 520, 14 P.3d 713 (2000).
Under an abuse of discretion standard, this appellate court will find error only when the
trial court’s decision (1) adopts a view that no reasonable person would take and is thus
manifestly unreasonable, (2) rests on facts unsupported in the record and is thus based on
untenable grounds, or (3) was reached by applying the wrong legal standard and is thus
made for untenable reasons. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942(2012).
Expert or opinion evidence must satisfy a two-part inquiry under ER 702: (1) the
witness must qualify as an expert, and (2) the testimony must help the trier of fact. State
v. Copeland, 130 Wn.2d 244, 256 (1996). A witness may qualify as an expert “by
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knowledge, skill, experience, training, or education.” ER 702. Expert testimony is
helpful to the trier of fact when 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). So long as helpfulness is fairly debatable, a trial court does not
abuse its discretion in permitting the expert testimony. Miller v. Likins, 109 Wn. App.
140, 147, 34 P.3d 835 (2001).
As stated earlier, a Frye hearing does not seek to determine the admissibility of the
results of a particular study or of particular testing procedures. State v. Russell, 125
Wn.2d at 51 (1994). The court instead addresses the reliability of the particular test at
issue under an ER 702 analysis of whether expert testimony would help the trier of fact.
State v. Russell, 125 Wn.2d at 51. If the testimony shows that the testing procedure
performed was so flawed as to be unreliable, the trial court may exclude the testing results
as unhelpful to the trier of fact. State v. Russell, 125 Wn.2d at 51. If the evidence
survives an ER 702 challenge, the trier of fact may still consider challenges to the
reliability of the testing when determining the weight to be given to the evidence. State v.
Russell, 125 Wn.2d at 51; State v. Cauthron, 120 Wn.2d 879, 899, 846 P.2d 502 (1993).
Simon Stotts does not dispute the qualifications of medical technologist, Jodie
Murrell-Scott, to testify as an expert. We also rule that Murrell-Scott’s testimony aided
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the jury in determining whether Simon Stotts smoked opiates in the presence of Allison.
Jodie Murrell-Scott described for the jury her own procedures for testing a urine
sample at the hospital laboratory. She discussed the quality controls and the rigorous
correlation studies conducted before the hospital began use of the MedTox scan analyzer.
She did not deem it necessary to send the sample to Spokane for confirmation.
Simon Stotts astutely highlights the disclaimer embedded on the results sheet by
the manufacturer of the MedTox scan analyzer, and he argues that the limiting language
established the lack of reliability of the results for forensic purposes. No Washington
case has addressed the admissibility of test results when the manufacturer of the test
equipment warns the user that test results should not be used for legal purposes. Two
foreign decisions hold that such a disclaimer does not preclude admission of the results.
We adopt the reasoning of the two decisions. We consider the disclaimer the product of a
finicky corporate manufacturer, who, while praising the accuracy of the device’s
screening results as part of its marketing scheme, attempts to shield itself from legal
liability.
In Stewart v. Manhattan & Bronx Surface Transit Operating Authority, 30 A.D.3d
283, 817 N.Y.S.2d 51 (2006), the court addressed limiting language of test results
indirectly. Mary Stewart sued a bus line for injuries sustained when a bus struck her.
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Emergency personnel transported Stewart to the hospital, where technicians tested her
blood and produced a toxicology report showing a blood alcohol level of .20. At the end
of the toxicology report, beneath the data, the following language appeared:
“These results are to be used for clinical evaluation only (and not for
any legal or employment evaluative purposes). Confirmation testing was
not performed.”
30 A.D.3d at 283. The bus line asked the trial court to redact the language as lacking any
bearing on the legitimacy of the test results. The trial court refused. The jury found the
bus line seventy percent at fault and Stewart thirty percent at fault for the accident. The
appellate court reversed and remanded for a new trial. The appeals court deemed the
cautionary language irrelevant because the health care providers did not rely on the
language for diagnosis and treatment. The court found the error prejudicial because the
jury could have speculated in favor of Stewart as to the accuracy of the test result.
Stewart v. Manhattan & Bronx Surface Transit Operating Authority goes one step
beyond the State of Washington’s request and Simon Stotts’ trial court’s ruling. The
State of Washington agreed that Stotts could mention to the jury the disclaimer language
in an attempt to impeach the urinalysis result. Stewart suggests that the State of
Washington could have successfully requested redaction of the language from exhibit 1,
the written test result, since Allison’s treating physician did not rely on the language, even
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assuming she read the disclaimer. We do not adopt, however, Stewart’s holding that the
warning language should not be seen by or mentioned to the jury.
State v. Martin, ___ So.3d ___, 2019 WL 180529 (Ala. Crim. App.), as its name
suggests, was a criminal prosecution unlike Stewart v. Manhattan & Bronx Surface
Transit Operating Authority. The State of Alabama indicted Sylvia Martin for chemical
endangerment of her child. Martin filed a pretrial motion to suppress the urine and
meconium test results obtained by the hospital following the birth of her child. The
results included the language:
“This is a medical urine drug screen and can only be used for
treatment purposes. These are unconfirmed screening results and must not
be used for non-medical purposes such as legal or employment testing.”
___ So.3d ___, at *2 n.2. The trial court granted the motion partly because of the limiting
language. The Alabama criminal appellate court reversed the exclusion of the test results.
The court held that the test results’ disclaimer did not bar introduction of the results as
evidence. Instead, the State should be afforded the opportunity to present a foundation
for admission of the evidence.
In his appeal brief, Simon Stotts cites an article from the Mayo Clinic and the Drug
Testing Legal Manual. Both publications mention that many clinicians agree positive
presumptive results of screening tests, standing alone, lack the validity necessary for use
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in strictly forensic applications. Instead, according to the publications, the results must be
confirmed by adequate alternative chemical analyses before any weight should be placed
on positive findings. Accordingly, Stotts contends that unconfirmed drug results, like
Allison’s, are prejudicial, misleading, and obfuscate the issue for the trier of fact.
We conclude that Stotts should have presented his literature at trial, through a
qualified expert who considers the publications authoritative. Such testimony could have
been admitted to impeach the weight of the MedTox scan analyzer test results.
Statement of Additional Grounds for Review
Simon Stotts raises two additional arguments in a statement of additional grounds.
First, Stotts contends his lawyer misrepresented that Stotts need not worry because he
would win at trial. Second, citing to page 105 of the report of proceedings, Stotts writes
that Dr. Sally Sartin did not collect Allison’s urine sample and did not conduct the
immunoassay. Stotts also emphasizes that Sartin testified that poppy seed muffins could
cause a positive test for opiates.
Simon Stotts fails to inform the court as to why his factual contentions require a
reversal. Although RAP 10.10(c) does not require the appellant to refer to the record or
cite authority, he must still “inform the court of the nature and occurrence of [the] alleged
errors.” We, therefore, deny his statement of additional grounds.
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CONCLUSION
We affirm the trial court's admission of the MedTox scan analyzer urine test
results as an exhibit. We affirm the conviction of Simon Stotts for assault of a child in
the third degree.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, J.
WE CONCUR:
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