     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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State v. Davila (Julio J), No. 90839-7


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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State v. Davila (Julio J), No. 90839-7


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.



                                          4
State v. Davila (Julio J.), No. 90839-7


                              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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State v. Davila (Julio J.), No. 90839-7


"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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State v. Davila (Julio J), No. 90839-7


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 Wn.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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State v. Davila (Julio J), No. 90839-7


       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").

                                           8
State v. Davila (Julio J.), No. 90839-7


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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State v. Davila (Julio J.), No. 90839-7


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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State v. Davila (Julio J), No. 90839-7


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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State v. Davila (Julio J.), No. 90839-7


      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

                                          13
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 Wn. 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 Wn.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

Wn. App. at 168. Citing this court's decision in Stenson, 174 Wn.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),


                                            16
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



                                          17
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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State v. Davila (Julio J.), No. 90839-7


        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 Wn.2d 474-a Brady case-to an evidentiary
hearing on materiality.
                                         19
State v. Davila (Julio J), No. 90839-7


      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 Wn.2d 881, 896,
259 P.3d 158 (2011), State v. Gregory, 158 Wn.2d 759, 798, 147 P.3d 1201 (2006),
overruled on other grounds by State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014), State
v. Thomas, 150 Wn.2d 821, 851, 83 P.3d 970 (2004), In re Personal Restraint of Gentry,
137 Wn.2d 378, 396, 972 P.2d 1250 (1999), and In re Personal Restraint of Benn, 134
Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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

Wn.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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