      Fl LE


IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                             )
                                                 )
                  Respondent,                    )                 No. 84045-8
                                                 )
       V.                                        )                   En Bane
                                                 )
SlONE P. LUI,                                    )
                                                 )
                  Petitioner.                    )
                                                 )


            WIGGINS, J.-This case presents the question of when the confrontation

clause requires testimony from lab analysts who conduct forensic tests on evidence.

While the United States Supreme Court has grappled with this issue on multiple

occasions, a majority of the Court has not adopted a single theory or test.

Accordingly, our decision follows the results of recent Supreme Court decisions and

proposes a test for expert witnesses that does not conflict with Supreme Court

precedent.

            We examine the plain language of the confrontation right: an accused person

has a right to confront "the witnesses against him." 1 Reading these words in light of

the founders' intent, the practice of other jurisdictions, and the trajectory of Supreme

Court confrontation clause jurisprudence leads us to adopt a rule that an expert


1
    U.S. CONST. amend. VI; CONST. art. I,§ 22.
No. 84045-8


comes within the scope of the confrontation clause if two conditions are satisfied:

first, the person must be a "witness" by virtue of making a statement of fact to the

tribunal and, second, the person must be a witness "against" the defendant by

making a statement that tends to inculpate the accused.

      Applying this rule shows that there was no violation of Sione Lui's rights under

the confrontation clause when the trial court admitted the results of deoxyribonucleic

acid (DNA) testing on samples taken from Lui and from the crime scene, or when it

introduced temperature readings taken from Elaina Boussiacos's body and the

ambient environment. Lui's right to confront a witness was violated by the admission

of Boussiacos's postmortem toxicology results and several statements from the

autopsy report, but the errors were harmless. Accordingly, the Court of Appeals is

affirmed.

                       FACTS AND PROCEDURAL HISTORY

      Lui and Boussiacos had a turbulent relationship, marked by mistrust and

infidelity. Although they were engaged and living together by the summer of 2000,

Boussiacos was uncertain about their marriage plans, and she alternated between

wearing and not wearing her engagement ring. Boussiacos eventually discovered

proof of an affair Lui was having with a married woman, and together the two women

trapped him in a lie. Lui was aware that his relationship with Boussiacos was in

trouble. He feared that Boussiacos would not return from a trip in mid-2000 and

called a friend distraught and crying at the prospect of losing her.

       Boussiacos told her mother that she no longer planned to marry Lui, and in

early 2001, Boussiacos made plans to fly to her mother's home in California. On


                                            2
No. 84045-8


Friday, February 2, 2001, the night before her flight, Boussiacos dropped off her son

from a previous marriage with the boy's father. Lui told police that Boussiacos

returned to the couple's home at roughly 10:00 p.m., and the couple watched

television. According to Lui's account, Boussiacos packed for the trip, changed into

her nightgown, and went to bed.

      Boussiacos never arrived in California. Her mother contacted Lui to report her

missing the following Monday. On Friday, police found her car in the parking lot of a

health club the couple frequented, located near their home. The police discovered

Boussiacos's body in the trunk. The owner of the health club testified that she first

noticed the car parked in the lot Saturday morning, February 3, and that it did not

move all week. Police arranged for a bloodhound track shortly after discovering

Boussiacos's body. After smelling a sample of Lui's clothes, the dog followed a scent

trail from the lot where the body was found directly to Lui's front porch.

       Boussiacos's friends and family agreed that she paid close attention to her

personal appearance, taking great care with her dress and makeup when she went

out. Her ex-husband testified that she routinely spent two hours on makeup, hair,

and clothes before leaving the house. But when found, she had little makeup on,

and she was dressed in black sweatpants, torn underwear, and a white T-shirt.

Investigators noted that she was wearing tennis shoes, but the laces were tied

oddly, on the far sides of each shoe, suggesting that her killer had dressed her after

death. In addition, Boussiacos's luggage was packed in an unusual manner,

containing several empty containers of hair product and makeup, two hair dryers,

and a bottle of nail polish remover without any nail polish.


                                            3
No. 84045-8


      In 2007, detectives reviewing cold cases contacted and interviewed Lui. The

State subsequently charged Lui with second degree murder in the death of

Boussiacos. At trial, in addition to the evidence described above, the State

presented expert testimony from chief medical examiner Dr. Richard Harruff and

DNA expert Gina Pineda. Harruff's testimony related to Boussiacos's autopsy. While

Harruff personally reviews the reports for each of the 1,300 autopsies that his office

processes each year, the actual autopsy had been performed by associate medical

examiner Dr. Kathy Raven. Harruff was not present for the autopsy, and while he

believed that he saw the body after the procedure, he could not be sure. However,

Harruff did not testify to Raven's conclusions; and, the report was not introduced into

evidence. Instead, he referred to photographs of the victim's injuries taken during the

autopsy to testify that in his opinion, the cause of death was asphyxia by manual

strangulation or strangulation with a ligature. Based solely on his experience with

strangulation, he offered his opinion that it takes roughly four minutes to die in this

manner. Harruff also testified to the position of Boussiacos's body and the odd

manner in which she was dressed. While Harruff relied primarily on photographs for

this testimony, he made several statements that were taken from the autopsy report.

       Harruff testified that the body's temperature at the scene was measured at

38.4 degrees Fahrenheit, and that the ambient temperature was 30.5 degrees

Fahrenheit. He did not take these measurements himself. Rather, Raven took the

temperature measurements and recorded them in personal notes that were not part

of the autopsy report but were later obtained in discovery. Based upon these two

temperature data points, Harruff testified to his opinion that although it was


                                           4
No. 84045-8


"extremely difficult" to fix an exact time of death, death was possible at any time

between the 2nd and 7th of February. 10 Report of Proceedings (RP) at 1354-56,

1398-99.

      Harruff also testified to the conclusions of a toxicology report prepared by

analyst Martin Hughes of the Washington State Toxicology Laboratory. Harruff did

not perform this test personally or supervise it, and he did not offer his professional

opinion about the testing methodology. Instead, he recited the report's conclusion

that no drugs, alcohol, or nicotine were found in Boussiacos's system.

      The Washington State Patrol Crime Laboratory sent DNA samples obtained

from the crime scene to two outside DNA laboratories: Orchid Cellmark and

Reliagene Technologies, a company that Orchid had acquired. 2 The samples

included cuttings from Boussiacos's shoelaces as well as a vaginal swab and a

vaginal wash of Boussiacos's body. Pineda, Orchid's associate director and

technical leader, testified about her company's testing of these samples against DNA

taken from Lui, Lui's son from a previous marriage, and Boussiacos's ex-husband.

       Pineda did not personally participate in or observe the tests, noting that since

assuming her director role, she had "stepped away from the lab," although she did

use the electronic data produced during the testing process to create a DNA profile

that reflected "[her] own interpretation and [her] own conclusions ... "' 12 RP at

1484, 1507. She offered a document summarizing the test results, which the trial

court admitted solely for illustrative purposes, ruling that Pineda could refer to it


2 For the sake of simplicity, we analyze Reliagene's tests and Orchid's tests together and
refer only to Orchid in the following analysis.


                                            5
No. 84045-8


during her presentation but that it would not go back to the jury room. State Ex. 136.

Pineda testified that based on the results of these tests, she could not eliminate Lui

or Lui's son as a major donor of the male DNA found on the shoelaces. Nor could

Boussiacos's ex-husband be eliminated as a donor. The lab's testing was unable to

detect a male profile from the vaginal swab extract. However, Lui or Lui's son could

not be eliminated as a donor of the DNA found in the vaginal wash.

      Lui objected to Harruff's and Pineda's testimony on hearsay and confrontation

grounds. The trial court rejected his hearsay argument because ER 703 allows

experts to rely on hearsay in forming their opinions. It concluded that there was no

confrontation violation because Harruff and Pineda were available for cross-

examination. A jury found Lui guilty as charged, and the trial court imposed a

standard-range sentence of 200 months of confinement.

      Lui appealed and the Court of Appeals affirmed in a published opinion. State

v. Lui, 153 Wn. App. 304, 325, 221 P.3d 948 (2009). The Court of Appeals concluded

that there was no confrontation violation because the expert witnesses testified to

their conclusions and Lui had the opportunity to confront them at trial. /d. The court

also held that while both experts testified about the content of reports they did not

prepare, the underlying reports were "offered to explain the basis for their opinions"

pursuant to ER 703 and therefore were not subject to the confrontation clause. /d. at

322-25.

      We accepted review and heard oral argument, but before issuing a decision,

we granted the State's motion to file supplemental briefs addressing Bul/coming v.

New Mexico,_ U.S._, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). We then stayed

                                          6
No. 84045-8


our decision pending the United States Supreme Court's decision in Williams            v.

Illinois, _   U.S. _, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) (plurality opinion).

Following the Supreme Court's decision in Williams, we lifted the stay and heard

reargument in Lui's case.

                                       ANALYSIS

        As an initial matter, we must decide whether to analyze Lui's claims solely

under the Sixth Amendment to the United States Constitution or separately under

article I, section 22 of the Washington Constitution.

  I.    Article I, Section 22

        Article I, section 22 of the Washington Constitution provides that "[i]n criminal

prosecutions the accused shall have the right ... to meet the witnesses against him

face to face .... " While Lui relies primarily on the Sixth Amendment, he raises

article I, section 22 as an alternate ground for relief in the event the court concludes

his federal confrontation clause rights were not violated.

        We consider six nonexclusive criteria when determining whether a provision

of our state constitution should be interpreted independently from its federal

analogue: (1) the textual language, (2) differences in the texts, (3) constitutional

history, (4) preexisting state law, (5) structural differences, and (6) matters of

particular state or local concern. State   v. Gunwa/1, 106 Wn.2d 54, 58, 720 P.2d 808

(1986).

        This court has concluded that article I, section 22 merits an independent

analysis as to both the manner and the scope of the confrontation right. State          v.
 Pugh, 167 Wn.2d 825, 835, 225 P.3d 892 (2009). Therefore, a full Gunwa/1 analysis


                                             7
No. 84045-8


"is no longer necessary." /d. Rather, we look to ""'whether the unique characteristics

of the state constitutional provision and its prior interpretations actually compel a

particular result.""' /d. (quoting State v. Chenoweth, 160 Wn.2d 454, 463, 158 P.3d

595 (2007) (quoting City of Seattle v. McCready, 123 Wn.2d 260, 267, 868 P.2d 134

(1994))). This entails "an examination of the constitutional text, the historical

treatment of the interest at stake as reflected in relevant case law and statutes, and

the current implications of recognizing or not recognizing an interest." Chenoweth,

160 Wn.2d at 463. In this case, none of these factors calls for an independent

reading of article I, section 22.

       The text of article I, section 22 does not compel a result different from that

under the Sixth Amendment. Both the Sixth Amendment and article I, section 22

protect a variety of criminal procedural rights; the relevant right is phrased in the

federal constitution as the right "to be confronted with the witnesses against him,"

while the state constitution uses the language "to meet the witnesses against him

face to face .... " U.S. CONST. amend. VI; CaNST. art. I, § 22. On the face of these

provisions, article I, section 22 is unique in that it uses the language "face to face"

where the Sixth Amendment does not. However, in State v. Foster, 135 Wn.2d 441,

462-63, 957 P.2d 712 (1998), a plurality of this court declined to give literal effect to

the "face to face" language. We held that "the meaning of the words used in the

parallel clauses is substantially the same." /d. at 459.

       But even if we read the "face to face" language literally, it would not affect the

resolution of this case. There is no question that Lui confronted the State's

witnesses "face to face"; the question is whether the State presented the correct


                                            8
No. 84045-8


witnesses. If the analysts who worked on the crime scene samples were "witnesses

against" Lui, then neither the state nor the federal confrontation clause was satisfied.

If they were not "witnesses against" Lui, then neither the state nor the federal

confrontation clause would require the State to produce them at trial. Nothing about

the unique language of article I, section 22 compels a particular result here.

      Our prior interpretations of article I, section 22 similarly do not compel a

particular result.   We   have consistently rejected      arguments that the state

confrontation clause provides greater protection than the federal confrontation

clause. See Pugh, 167 Wn.2d at 840-45 (excited utterance hearsay exception does

not violate state confrontation rights); State v. Shafer, 156 Wn.2d 381, 391-92, 128

P.3d 87 (2006) (child hearsay statute does not violate state confrontation rights);

Foster, 135 Wn.2d at 4 70 (testimony by closed-circuit television does not violate

state confrontation rights). These decisions are consistent with early decisions by

Washington courts admitting documentary evidence in lieu of live testimony, as well

as prestatehood statutes allowing depositions to be introduced at trial. See Foster,

135 Wn.2d at 462. Lui has not shown any particular Washington tradition protecting

the right to confrontation over and above the federal standard.

       Finally, Lui does not brief the current implications of recognizing or not

recognizing an expanded confrontation interest under the Washington Constitution,

other than that judges and litigants will benefit from knowing which witnesses will

appear at trial. But the interest in knowing which witnesses will appear at trial, as

well as the constitutional values underlying article I, section 22, are adequately

addressed by the Sixth Amendment test we articulate below. Perhaps in another


                                            9
No. 84045-8


case there may be occasion to recognize a broader state confrontation right, but

these facts do not give us reason to do so.

          Neither the constitutional text, the historical treatment of the confrontation

right, nor the current implications of adopting a broader confrontation right support

an independent reading of article I, section 22 in this case. Accordingly, we analyze

Lui's claim solely under the federal confrontation clause.

    II.   Confrontation Clause

          Supreme Court case law on the confrontation clause is somewhat fragmented

and does not provide a controlling rule for cases like Lui's that involve expert

witnesses. As we explain below, in the case of nonexpert witnesses, a majority of

the Supreme Court has settled on the primary purpose test as the controlling

confrontation clause rule. But in the case of expert witnesses, the members of the

Court are divided into two groups of four justices each, with Justice Thomas voting

independently based on his unique interpretation of the confrontation clause. In the

absence of an authoritative Supreme Court majority rule, we must rely on the plain

language of the confrontation clause: an accused person has a right to confront "the

witnesses against him." 3 As we explain below, the founders' intent and the practice

of other jurisdictions can help us to interpret these words and ultimately reach a

working rule for confrontation of expert witnesses: a person is a "witness" for

confrontation clause purposes only if he or she makes some statement of fact to the

court (as opposed to merely processing a piece of evidence) and that statement of


3
    U.S. CONST. amend. VI.



                                             10
No. 84045-8


fact bears some inculpatory character (meaning that the evidence, without the need

for expert interpretation, bears on some factual issue in the case). Under this test,

the court did not violate the confrontation clause when it admitted the DNA evidence

through Gina Pineda and the temperature evidence through Dr. Richard Harruff.

However, the toxicology evidence runs afoul of this test.

   A. Supreme Court Confrontation Clause Jurisprudence-A Core Rule, and
       Uncertainty on the Periphery

       Before 2004, confrontation clause jurisprudence was governed by the indicia

of reliability test. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d

597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 69, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004 ). In Crawford, the Supreme Court jettisoned the

indicia of reliability test. What replaced the indicia of reliability test is less clear: in

the years since Crawford, the Court has issued increasingly fractured sets of

opinions in five major confrontation clause cases.

       The six cases naturally divide into two sets of three decisions. In Crawford,

Davis, and Bryant, the Court dealt with conventional, nonexpert witnesses who had

witnessed or had been the victims of the subject crimes.            Crawford, 541 U.S. 36;

Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006);

Michigan v. Bryant, 562 U.S. _ , 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011 ). The

Court was unanimous in Crawford, and a solid majority decided Davis and Bryant.

But Justice Thomas articulated the principle that has consistently guided his

confrontation clause decisions: "I agree with the Court that the admission of

Covington's out-of-court statements did not violate the confrontation clause, but I



                                               11
No. 84045-8


reach this conclusion because Covington's questioning by police lacked sufficient

formality and solemnity for his statements to be considered 'testimonial."' Bryant,

131 S. Ct. at 1167 (Thomas, J., concurring) (emphasis added).

      In the second triad of cases, the Court considered the admissibility of

laboratory analysis reports where the analyst who had performed the testing did not

testify. Melendez-Oiaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.

2d 314 (2009); Bul/coming, 131 S. Ct. 2705; Williams, 132 S. Ct. 2221. In these

laboratory analysis cases, Justices Kennedy, Roberts, Breyer, and Alita consistently

voted together; Justices Scalia, Ginsburg, Stevens, and Souter (and eventually

Justices Sotomayor and Kagan) consistently voted together; and Justice Thomas

independently looked for sufficient formality and solemnity. We turn now to both

groups of cases.

   1. The Core Rule: Conventional Witnesses

      In Crawford, the defendant's wife told the police that the victim had been

unarmed, and the prosecution introduced her statements without calling her to the

stand. 541 U.S. at 40. The Court noted that the seminal example of an out-of-court

testimonial statement is the trial of Sir Walter Raleigh, in which the prosecution read

into evidence Lord Cobham's ex parte statements inculpating Raleigh. /d. at 44. It is

this sort of "civil-law mode of criminal procedure, and particularly its use of ex parte

examinations as evidence against the accused," that the confrontation clause is

primarily concerned to exclude. /d. at 50. Therefore, Crawford was uncontroversially

decided. The Court unanimously held that "Sylvia Crawford's statement is

testimonial under any definition" and thus must be subject to cross-examination


                                           12
No. 84045-8


notwithstanding reliability. /d. at 61. The Court further held that Sylvia's statements

were not reliable in the first instance because she was "herself a potential suspect"

with an incentive to lie, because the police asked leading questions, and because

she did not see the entire altercation. !d. at 66.

      The Court revisited and refined its definition of "testimonial" statements in

Davis, 547 U.S. 813. In the first of two consolidated cases, Adrian Davis's former girl

friend called 911 to report that Davis was presently assaulting her. /d. at 817. The

911 recording was admitted into evidence, and Davis was convicted of assault. !d. In

the second case, officers arrived at Hershel Hammon's house after an altercation

between him and his wife; one of the officers stayed with Hammon while the other

officer interrogated Hammon's wife in a separate room. !d. at 819-20. Hammon's

wife authored a "battery affidavit" that the State introduced at trial. !d. at 820.

       In Davis, the Court held that whether a statement was testimonial depended

on the declarant's purpose in making the statement. The Court held that the

statements of Davis's former girl friend had been made "to enable police assistance

to meet an ongoing emergency." /d. at 822. The Court held that a statement is

testimonial when "the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution." !d. That is, a statement

is testimonial if it is "solely directed at establishing the facts of a past crime, in order

to identify (or provide evidence to convict) the perpetrator." !d. at 826. Under this

analysis, the ex parte statements were properly admitted in Davis's case and

improperly admitted in Hammon's case. /d. at 834.




                                             13
No. 84045-8


      Justice Thomas disagreed, dissenting on the ground that testimony must

necessarily bear "some degree of solemnity." /d. at 836 (Thomas, J., concurring in

part and dissenting in part). Therefore, affidavits, depositions, prior testimony, and

other statements obtained through a "formalized process" fell within the scope of the

confrontation clause, but an informal talk with the police would not. /d. at 836-37. For

that reason, Thomas argued, the statements in both Davis's and Hammon's cases

were admissible. /d. at 834.

      The Crawford consensus began to unravel in Bryant, 131 S. Ct. 1143. There,

the trial court admitted into evidence the statement of a gunshot victim who identified

the shooter to responding police officers. /d. at 1150. Six justices of the Court held

that, as in Davis, the statements did not constitute an "out-of-court substitute for trial

testimony," id. at 1155, because the declarant's statements were not meant for use

at trial, but rather to help resolve the ongoing emergency of "'an unknown shooter

who remains at large .... "' !d. at 1158 (quoting amicus brief). The nature of the

emergency diminished the "prospect of fabrication," thus excusing the statements

from the confrontation clause. !d. at 1157.

       Justice Scalia dissented, arguing that the primary purpose of the statements

was to provide evidence against the defendant. From the declarant's perspective,

the emergency had already ended. /d. at 1171 (Scalia, J., dissenting). Therefore,

"his statements had little value except to ensure the arrest and eventual prosecution

of Richard Bryant." !d. at 1170. Justice Ginsburg also dissented, agreeing in full with

Justice Scalia's analysis. /d. at 1176-77.




                                             14
No. 84045-8


      Justice Thomas again broke from the primary-purpose test altogether. In

concurrence, he argued that the test should be whether the statements were formal

and solemn. /d. at 1167.

   2. Scientific Evidence: Three Perspectives

      In the next three decisions, the justices divided into three camps as the Court

turned from    examining statements by conventional witnesses to examining

laboratory analysis reports.    In Me/endez-Diaz, 557 U.S. 305, Justices Scalia,

Stevens, Souter, and Ginsburg, joined by Justice Thomas, held that three

certificates identifying bags of powder as "cocaine" were testimonial, as the

certificates were functionally equivalent to affidavits and were created for the primary

purpose of providing evidence for trial. /d. at 310-11. In fact, "the sole purpose of the

affidavits was to provide 'prima facie evidence of the composition, quality, and the

net weight' of the analyzed substance," necessary elements of the crime under

Massachusetts law. /d. at 311 (quoting MAss. GEN. LAWS ch. 111, § 13). These

sworn statements of fact were admitted into evidence and were "functionally

identical to live, in-court testimony, doing 'precisely what a witness does on direct

examination."' /d. at 307, 310-11 (quoting Davis, 547 U.S. at 830). Because the

witnesses were not subject to cross-examination, the admission of the certificates

violated the confrontation clause. !d. at 308.

       Justice Thomas wrote separately to reaffirm that his support for the majority

was conditioned on the formal nature of the affidavits at issue. /d. at 329-30




                                           15
No. 84045-8


(Thomas, J., concurring). 4 And indeed, the majority's definition of testimony subject

to the confrontation clause was qualified by a requirement of formality such as

former testimony, statements under oath, or other indicia of formality. /d. at 310.

      Justice Kennedy, joined by Justices Roberts, Breyer, and Alito, dissented on

the ground that laboratory analysts were not '"witnesses against"' a defendant, as

they did not bear "personal knowledge of some aspect of the defendant's guilt." /d.

at 343-44 (Kennedy, J., dissenting). Justice Kennedy offered three distinctions

between laboratory analysts and conventional witnesses: "a conventional witness

recalls events observed in the past, while an analyst's report contains near-

contemporaneous observations of the test"; "an analyst observes neither the crime

nor any human action related to it"; and "laboratory tests are conducted according to

scientific protocols; they are not dependent upon or controlled by interrogation of

any sort." !d. at 345-46.

       In Bullcoming, 131 S. Ct. 2705, the state introduced a certificate recording the

defendant's blood alcohol level at 0.21 grams per hundred milliliters through a co-

worker of the laboratory analyst who had not observed nor reviewed the actual

testing. !d. at 2710-12. Again, the Court declared the evidence inadmissible by

similar divisions as in Melendez-Diaz: Justices Scalia and Ginsburg, now joined by

Justices Sotomayor and Kagan who had replaced Justices Stevens and Souter, and




4
 The dissent suggests that our analysis is precluded by Melendez-Diaz because Justice
Thomas signed the majority. Dissent at 4 n.1. That would be true only if formalized
evidence, signed by the author, was admitted into evidence. Instead, we have an expert
witness relying upon a report that did not come into evidence.


                                           16
No. 84045-8


Justice Thomas joining in part. 5 The Court drew parallels to Melendez-:Diaz, noting

that the certificate had an "'evidentiary purpose,"' that it was created "in aid of a

police investigation," and that it was formalized. /d. at 2717 (quoting Me/endez-Diaz,

129 S. Ct. at 2532). Therefore, the certificate was testimonial, which left the Court to

determine whether the State had satisfied its confrontation clause burden. It had not;

the witness had not participated in the test and could not speak to the procedures

used or observations made. /d. at 2713. The witness had no function except as a

"surrogate," merely relaying the conclusions of another. /d. at 2715.

      Justice Sotomayor wrote separately to emphasize the limited reach of

Bullcoming, articulating the factual limits of the case: the sole purpose of the

certificate was to be introduced into evidence; the witness who testified at trial was

not a "supervisor, reviewer, or someone else with a personal, albeit limited,

connection to the scientific test at issue"; the testifying witness did not give "his

independent opinion about underlying testimonial reports that were not themselves

admitted into evidence"; and the document introduced by the State was not limited

to "only machine-generated results." /d. at 2722 (Sotomayor, J., concurring).

Justices Kennedy, Roberts, Breyer, and Alito again dissented, arguing that the

report was "impartial" and "prepared by experienced technicians in laboratories that

follow professional norms and scientific protocols." /d. at 2726 (Kennedy, J.,

dissenting).



5
  Justice Thomas declined to join footnote 6 and Part IV, which defined testimony subject to
the confrontation clause without including a requirement of indicia of formality. Bullcoming,
131 S. Ct. at 2709.


                                             17
No. 84045-8


      Thus, in Melendez-Diaz and Bullcoming, the four-judge block of Justices

Scalia, Ginsburg, Sotomayor, and Kagan was joined by Justice Thomas to find a

confrontation clause violation. But in the next case, Williams, 132 S. Ct. 2221,

Justice Thomas joined the four-judge plurality of Chief Justice Roberts and Justices

Kennedy, Breyer, and Alito to find no confrontation clause violation. The issue was

whether "Crawford bar[red] an expert from expressing an opinion based on facts

about a case that have been made known to the expert but about which the expert is

not competent to testify." /d. at 2227. In Williams, an expert testified that a DNA

profile taken from a rape victim matched a DNA profile recovered from the

defendant. !d. at 2230. The expert did not prepare the DNA profile; rather, she relied

on a DNA profile prepared by an outside laboratory. !d. at 2229. No one from that

laboratory was subject to cross-examination. See id. at 2227, 2230. Justice Alito

wrote for the four-judge plurality, including Chief Justice Roberts and Justices

Kennedy, and Breyer, offering "two independent reasons" for finding no violation of

the confrontation clause. /d. at 2244. First, the expert's reliance on the previous

steps in the DNA analysis was not offered to prove the truth of the matter asserted.

/d. at 2228. As a "second, independent basis" for the decision, Justice Alito pointed

out that the DNA profile was produced before the defendant was identified as a

suspect and "the profile that Cellmark provided was not inherently inculpatory." /d.

      The four justices who had voted together in Bu//coming-Justices Scalia,

Ginsburg, Sotomayor, and Kagan-again voted together in Williams. This time

Justice Kagan wrote for the four justices. Justice Kagan saw nothing wrong with the

expert witness's testimony that two DNA profiles matched each other, for this was "a


                                          18
No. 84045-8


straightforward application" of her expertise.     /d. at 2270 (Kagan, J., dissenting).

Rather, the Court split on the provenance of the victim's DNA profile, that is, whether

the expert affirmed that one of the profiles she was comparing had actually come

from the victim, without having participated in creating that profile. /d. at 2236.

Justice Kagan opined that the expert's testimony required the jury to accept the

validity of a DNA test that had not been scrutinized by cross-examination. /d. at

2268-69 (Kagan, J., dissenting).

      As in Melendez-Diaz and Bullcoming, Justice Thomas provided the decisive

fifth vote, but in Williams he concluded that the DNA lab reports lacked sufficient

formality or solemnity to be considered testimonial.        !d. at 2260-61 (Thomas, J.,

concurring in judgment). And none of these three cases provide a single clear rule

because Justice Thomas provided the fifth critical vote in all three cases based on

his individual theory that evidence is testimonial only if it bears indicia of formality

and solemnity.

      The dissent accuses us of counting perspectives and camps rather than

signatures. Dissent at 3. However, counting signatures ignores the fact that a

majority of the Court has never agreed on a test for expert witnesses, making it very

difficult for courts to effectively follow. Four justices joined an opinion holding that the

confrontation clause does not apply to expert witnesses when expressing their own

conclusions, four justices attached no importance to the fact that evidence came in

through an expert witness, and one justice focused on the solemnity of the evidence

relied upon by an expert witness.        132 S. Ct. at 2228 (plurality opinion), 2260

(Thomas, J., concurring in judgment), 2269-70 (Kagan, J., dissenting). Even if we


                                             19
No. 84045-8


count signatures, our decision is consistent with the five justices in Williams who

agree that experts may rely upon and disclose independent DNA laboratory results

when testifying about their own conclusions without violating a defendant's

confrontation rights. /d. at 2240 (plurality opinion), 2255 (Thomas, J., concurring in

judgment). Our test respects the five justices in Williams, while recognizing that in

some circumstances an expert witness's testimony may trigger the confrontation
                                                                                   "

clause. Our opinion also does not disregard the results in Melendez-Diaz and

Bullcoming because we address only statements made by expert witnesses and not

formalized certificates that are the equivalent of affidavits.

       In addition to there being no clear reasoning for expert witnesses, no ruling of

the Court is directly on point here. In three important ways, this case brings us into

uncharted constitutional territory. First, Me/endez-Diaz did not reach back to

encompass every factual predicate behind an expert witness's findings. The

confrontation clause does not demand the live testimony of "anyone whose

testimony may be relevant in establishing the chain of custody, authenticity of the

sample, or accuracy of the testing device .... " Melendez-Diaz, 557 U.S. at 311 n.1.

In other words, while a break in the chain of custody might detract from the

credibility of an expert analysis of some piece of evidence, this break in the chain

does not violate the confrontation clause. /d. Second, Bullcoming expressly did not

reach the confrontation clause status of raw data generated by an automated

process without human input. Rather, the subject matter of the confrontation clause

concerns those "past events and human actions not revealed in raw, machine-

produced data .... " 131 S. Ct. at 2714 (emphasis added); see also id. at 2723


                                             20
No. 84045-8


(Sotomayor, J., concurring) ("This is not a case in which the State introduced only

machine-generated results, such as a printout from a gas chromatograph .... Thus

we do not decide whether ... a State could introduce raw data generated by a

machine in conjunction with the testimony of an expert witness."). Finally, Williams

did not address how the confrontation clause applies to the "panoply of crime

laboratory reports and underlying technical statements written by (or otherwise

made by) laboratory technicians." 132 S. Ct. at 2244-45 (Breyer, J., concurring). The

same question Williams did not reach-the confrontation clause status of forensic

reports, expert witnesses, and the technical data underlying their conclusions-is

now squarely before us.

     B. "Witnesses Against"-Reaching a Test

         In the absence of binding Supreme Court precedent for a rule, we now turn to

the plain language of the confrontation right. By its own terms, the confrontation right
                                                           6
applies only to "the witnesses against [the defendant]." As we explain below, the

word "witness" indicates the act of attesting to facts, while the word "against"

indicates that the facts attested to must be adversarial in nature.

         The act of imparting factual information to the court is the sine qua non of a

witness. Crawford tells us that a "witness" is a person who "'bear[s] testimony'" and

that "testimony" is "'[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact."' 541 U.S. at 52 (quoting 2 NoAH WEBSTER, AN

AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). This definition does not


6
    U.S. CoNST. amend. VI.



                                           21
No. 84045-8


sweep in analysts whose only role is to operate a machine or add a reagent to a

mixture.

      Justice Kagan pointed out in her dissent in Williams that cross-examining a

witness could be valuable in order to reveal erroneous lab work. 132 S. Ct. at 2264-

65 ("Hence the genius of an 18th-century device as applied to 21st-century

evidence: Cross-examination of the analyst is especially likely to reveal whether

vials have been switched, samples contaminated, tests incompetently run, or results

inaccurately recorded."). The live testimony of a subordinate analyst may be

desirable, but the question is whether it is constitutionally required-and as the

Court recognized in Melendez-Diaz, the potential to introduce error does not a

"witness" make. In Me!endez-Diaz, Justice Kennedy pointed out that many people

might be involved in a single drug test and that each of those people had the "power

to introduce error," and he asserted that requiring all or "even one of these

individuals to testify threatens to disrupt if not end many prosecutions .... " 557 U.S.

at 333 (Kennedy, J., dissenting). In response, Justice Scalia clarified that the

confrontation clause does not demand the live testimony of "anyone whose

testimony may be relevant in establishing the chain of custody, authenticity of the

sample, or accuracy of the testing device. . . ." !d. at 311 n.1. Although the

prosecution is indeed obliged to establish the chain of custody, "this does not mean

that everyone who laid hands on the evidence must be called." !d. (emphasis

added). Rather, gaps in the chain of custody go to the weight of the evidence and

not the admissibility. !d. (citing United States v. Loft, 854 F.2d 244, 250 (7th Cir.

1988)).


                                           22
No. 84045-8


      In other words, merely laying hands on evidence, DNA or otherwise, does not

a "witness" make-something more is required. In Melendez-Diaz, an analyst

became a witness by preparing a statement affirming that a substance was cocaine.

/d. at 311. In Bul/coming, an analyst became a witness by giving live testimony that

the defendant's blood alcohol level was 0.21. 131 S. Ct. at 2713. Our analysis here

is no different: we are interested in experts who make statements to the court, not

people who "la[y] hands on the evidence .... " Melendez-Diaz, 557 U.S. at 311 n.1.

      Not everyone who makes some affirmation of fact to the tribunal will fall under

the confrontation clause. The word "against" implies some adversarial element-

some capacity to inculpate the defendant. 7 As eight justices (six current) of the Court

tell us, the central object of the confrontation clause is "interrogations solely directed

at establishing the facts of a past crime, in order to identify (or provide evidence to

convict) the perpetrator." Davis, 547 U.S. at 826 (emphasis added). The New York

Court of Appeals has recognized the necessity for a testimonial statement to bear

some inculpatory character; among other factors, New York looks to '"whether the

report accuses the defendant by directly linking him or her to the crime."' People v.

Pealer, 20 N.Y.3d 447, 454, 985 N.E.2d 903 (2013) (quoting People           v. Brown, 13

N.Y.3d 332, 339-40, 918 N.E.2d 927 (2009)).

       Reading the words "witness" and "against" together, in the context of

Supreme Court hints and the reasoned practices of other jurisdictions, gives us a

working rule. If the declarant makes a factual statement to the tribunal, then he or

7
  The dissent asserts that we have characterized lab results as "inherently accurate."
Dissent at 21. However, our focus is not on whether the work of analysts is accurate and
reliable, but on whether it is "testimony against" an accused.


                                            23
No. 84045-8


she is a witness. If the witness's statements help to identify or inculpate the

defendant, then the witness is a "witness against" the defendant. 8

       The dissent misunderstands our rule and holding and misstates Supreme

Court precedent. This is evident in six ways.

       First, the dissent misstates the effect of this opinion, fretting that we have

concluded that "laboratory reports are not testimonial" and that "a supervisor can

recite the testimony of a subordinate." Dissent at 1. On the contrary, our holding

reaches only so far as expert witnesses and identifies when the confrontation clause

is satisfied by their cross-examination. Today's opinion does not allow laboratory

reports to be admitted into evidence and used against a defendant without effective

cross-examination. Nor does it allow a laboratory supervisor to parrot the

conclusions of his or her subordinates. Instead, our test allows expert witnesses to

rely upon technical data prepared by others when reaching their own conclusions,

without requiring each laboratory technician to take the witness stand. The test does

nothing more.




8
  The dissent fails to grasp this test, which is made clear by its comparison between a police
supervisor testifying about eyewitness observations that were recorded by subordinate
police officers and an expert witness relying upon work done by other lab analysts when
arriving at his or her own conclusions. Dissent at 28. The confrontation clause is triggered
when an expert witness makes a factual assertion that is used in court and that factual
assertion is inculpatory. This test applies only to expert witnesses. The dissent's comparison
fails for two reasons. /d. First, the example fails to specify that the police supervisor is not a
conventional witness simply describing a crime scene. If the police officer is a conventional
witness, the primary purpose test applies. Second, even if the testimony was from an expert
witness, the observations would likely be statements of fact that are inculpatory, triggering
the confrontation clause. The statements would not need to be interpreted or analyzed by
an expert. They would have meaning on their own, unlike DNA data or the temperature of a
body without being further analyzed.


                                               24
No. 84045-8


      Second, the dissent must acknowledge that the United States Supreme Court

would reach the same result as this opinion under these facts. The result in Williams

was that a forensic specialist was permitted to rely upon an outside laboratory's DNA

profile when testifying that it matched a sample of the defendant's blood without

violating the defendant's confrontation rights. See Williams, 132 S. Ct. at 2228

(plurality opinion); 132 S. Ct. at 2255 (Thomas, J., concurring in judgment). Our

opinion reaches the same result today: experts may rely upon DNA profiles created

by other laboratory analysts when concluding there is a DNA match without violating

the confrontation clause.

      Third, the dissent misleadingly claims that the United States Supreme Court

rejected our test on multiple occasions. Dissent at 5. The holdings the dissent relies

on do not conflict with, or preclude, our test. In Crawford, the Court held that playing

a spouse's tape-recorded statements during her husband's criminal trial violated his

confrontation rights when he was not given an opportunity to cross-examine her. 541

U.S. at 40, 68-69. Crawford does not preclude our test because it does not address

expert witnesses. In Melendez-Diaz, the Court held that there was a violation of a

defendant's confrontation rights when the court admitted affidavits reporting the

results of forensic analysis, stating that seized material was cocaine without the

witness being subject to cross-examination. 557 U.S. at 307, 329. Melendez-Diaz

does not preclude our test because the holdings are consistent. If a statement is

used against a defendant in court, the declarant must be subject to cross-

examination. In Bullcoming, the Supreme Court held that it violated the confrontation

clause to "introduce a forensic laboratory report containing a testimonial certification,


                                           25
No. 84045-8


made in order to prove a fact at a criminal trial, through the in-court testimony of an

analyst who did not sign the certification or personally perform or observe the

performance of the test reported in the certification." 131 S. Ct. at 2713. Bullcoming

does not conflict with the test for expert witnesses. An expert witness may not parrot

the conclusions of others and circumvent the confrontation clause, as is seen later in

our analysis of the toxicology results. An expert may, however, rely on the work of

laboratory technicians when reaching his or her conclusion. Therefore, the holdings

of these cases do not preclude the confrontation clause test for expert witnesses.

      Fourth, contrary to the claims of the dissent, we agree that if DNA evidence,

or other scientific or technical evidence, is used against a defendant in court, the

confrontation clause is implicated. The cases cited by the dissent that discuss

"neutral" witnesses do so in response to arguments that a witness is exempt from

the confrontation clause when the statements are not used against the defendant. 9

See Melendez-Oiaz, 557 U.S. at 313-14. The Court has repeatedly recognized a

witness is not excluded from the confrontation clause requirements because his or

her testimony appears to be neutral. See id.          Accordingly, DNA evidence is not


9
  The dissent cites to footnote 2 in Crawford for the its argument that "seven justices held
that the confrontation clause applies to all witnesses against the accused regardless of
whether the witnesses are neutral or are experts, such as coroners." Dissent at 5. The
footnote in Crawford simply states, "[S]everal early American authorities flatly rejected any
special status for coroner statements." Crawford, 541 U.S. at 47 n.2. The footnote
discusses the history of the confrontation clause and whether coroner statements were
exempt from the clause. See id. Our holding does not create a confrontation clause
exception for coroners or for expert witnesses. The dissent also cites to a discussion in
Crawford that rejected the argument that the wife's statements were exempt from the
confrontation clause because they were made to a "neutral" government officer. /d. at 66.
Again, our opinion does not create an exception to the confrontation clause. We are
clarifying when an expert witness may rely upon the work of others when reaching his or her
own opinion without violating the confrontation clause.


                                             26
No. 84045-8


exempt from the confrontation clause because it is neutral. Our test requires cross-

examination, but only cross-examination of the witness who gives meaning to raw

data. Not every laboratory analyst is required to testify. See Williams, 132 S. Ct. at

2228 (plurality).   If DNA evidence is used in trial, someone must be subject to

cross-examination. The "someone" required by the confrontation clause is the

person who has made the final comparison that is used against the defendant.

       Fifth, the dissent insists that we are wishing away Me/endez-Oiaz and

Bul/coming. Dissent at 7. In fact, we too recognize the holdings of these cases.

However, there are distinctions between the facts and legal holdings in those cases

and the case before us today. The dissent fails to grasp these distinctions. The

Supreme Court has never clearly set forth the confrontation clause requirements for

when an expert witness relies on the work of others to arrive at his or her own

conclusion.

       Sixth, the dissent attaches great importance to Melendez-Diaz and the fact

that Justice Thomas signed the majority opinion. But the dissent ignores the fact that

Justice Thomas also concurred, spelling out his reason for concurring-the

documents admitted in Melendez-Oiaz possessed the requisite indicia of formality. In

any event, the holding in the Melendez-Oiaz opinion was narrower than the dissent

would have us believe. After discussing various forms of "core class" testimony, the

Melendez-Oiaz majority concluded that there was "little doubt that the documents at

issue [fell] within the 'core class of testimonial statements' thus described." 557 U.S.

at 310 (quoting Crawford, 541 U.S. at 51). The statements were the equivalent of

affidavits, which fit Justice Thomas's view of the confrontation clause applying only


                                           27
No. 84045-8


to formalized testimony. See id. at 329 (Thomas, J., concurring). The Melendez-Diaz

holding does not extend beyond the equivalent of affidavits or other formalized

testimony.

      Nothing in prior Supreme Court decisions precludes our test. Applying the test

shows that Orchid's DNA analysts were not witnesses against the defendant, but

rather facilitated Pineda's role as an expert witness. Similarly, taking the temperature

of Boussiacos's body was not an inculpatory act; it helped the expert estimate the

time of death. Finally, while the toxicology report and Harruff's statements taken from

the autopsy report helped to inculpate Lui, their admission was harmless error.

   C. DNA Evidence

      Lui argues that the State violated the confrontation clause when it introduced

DNA evidence through a supervisor, Gina Pineda, rather than the analysts who

physically conducted the DNA testing. If Pineda had relayed the observations or

memory of conventional witnesses, then Lui would be correct. But DNA evidence

differs in several important ways from the testimony of conventional witnesses. As

we explain below, the DNA testing process does not become inculpatory and invoke

the confrontation clause until the final step, where a human analyst must use his or

her expertise to interpret the machine readings and create a profile. Pineda used her

expertise to create a factual profile that incriminated Lui, and therefore Pineda was

the appropriate witness to introduce the DNA evidence.

   1. Background-The DNA Testing Process

       For the first step in DNA analysis, the analyst takes a sample from the

evidence recovered from the crime scene. For example, here, an analyst took a


                                           28
No. 84045-8


clipping from Boussiacos's shoelaces for further analysis. In no sense does an

analyst become a "witness" by extracting a sample for testing; the act is not

testimonial because no statement has been made yet. This preliminary step in the

analysis is essentially part of the chain of custody: an error at this stage goes to the

weight and not the admissibility. See Melendez-Diaz, 557 U.S. at 311 n.1 (citing

Loft, 854 F.2d at 250).

      Second, the analyst uses chemicals to break down the sample and release

DNA molecules. Here, the chemical compounds, not the human analyst, do all the

work. To reiterate, no authority states that the analyst becomes a "witness against"

anyone by virtue of adding chemicals to a mixture. Rather, while the analyst's

testimony might be helpful in bolstering the authenticity of the sample or the

accuracy of the machine, Me/endez-Oiaz does not require that testimony. /d.

      Third, the analyst measures the amount of DNA recovered in the second step

and replicates the DNA through a process called polymerase chain reaction, which a

witness in this case described as "chemically photocopying the 13 different areas of

DNA .... " 9 RP at 1155. This is done in order to amplify a small amount of DNA to

a level more amenable to testing. The process does not create new information, but

only replicates already-existing DNA information. See State v. Parker, 350 S.W.3d

883, 894 (Tenn. 2011 ). During this step, particular areas of DNA are also marked

with fluorescent dyes in an automated process. Williams, 132 S. Ct. at 2253-54

(Breyer, J., concurring). Once more, the analyst's role is to facilitate the operation of

a machine, not to make any factual affirmation and not to serve as a "witness

against" anyone.


                                           29
No. 84045-8


      Fourth, once the DNA has been replicated and amplified, it is processed by a

capillary electrophoresis instrument. The machine passes the DNA through a gel

matrix that filters particles by size, slowing down larger particles more than smaller

ones. With the particles filtered by the gel matrix, a light beam can capture the

fluorescent markings on the DNA and identify peaks and repeats in the makeup of

the DNA This step is fully automated; like the gas chromatograph that Justice

Sotomayor discussed in the concurrence in Bullcoming, it is not testimonial and

does not invoke the confrontation clause. 131 S. Ct. at 2723.

      Finally, the machine outputs an electropherogram, or a plot of the peaks and

valleys in the DNA Only here does any element of human decision-making enter the

process; an expert must translate the peaks and valleys of the electropherogram

into a DNA profile. The expert can then prepare an allele table that compares the

DNA profiles taken from various sources. See State Ex. 136, at 4. Unlike previous

steps in the process, the DNA profile is an affirmation of fact; it is a conclusory

statement that a given DNA donor has certain genetic characteristics. But this does

not necessarily make the DNA profile into a confrontation clause matter, for two

reasons. First, the DNA profile was not introduced into evidence, but only shown

during Pineda's testimony for illustrative purposes. It is hard to imagine that a chart

that never enters into evidence is meant as "an out-of-court substitute for trial

testimony." Bryant, 131 S. Ct. at 1155. And the second component of the

confrontation clause must still be satisfied-the statement must still be "against"

someone.




                                          30
No. 84045-8


   2. Application of Confrontation Clause Test

      The necessary inculpatory element enters the equation once an expert

compares the DNA profiles. Done on the stand in open court, this comparison is

permissible as a "straightforward application of [the analyst]'s expertise." Williams,

132 S. Ct. at 2270 (Kagan, J., dissenting). The confrontation clause is implicated

only at the comparison stage because an allele table does not itself identify (let

alone inculpate) anyone, nor would it have any particular meaning to a nonexpert.

As the State described the allele table, it appears as "a whole bunch of numbers that

kind of look like gobbledygook." 12 RP at 1538. Pineda's expertise was necessary to

explain what the numbers represented (the number of times each of 16 specified

gene sequences repeated) and why they were significant (the DNA of James

Anthony Negron, an alternate suspect, failed to match DNA recovered from the

crime scene.) In other words, the allele table lacked the inculpatory character of the

certificate reading "Cocaine" in Me/endez-Diaz, the blood alcohol concentration

report in Bul/coming, or the witness statements in Crawford and Davis. The DNA

profiles gained their inculpatory character, thus precipitating the confrontation clause

issue, only when Pineda's testimony inculpated Lui.

      Accordingly, the only "witness against" the defendant in the course of the

DNA testing process is the final analyst who examines the machine-generated data,

creates a DNA profile, and makes a determination that the defendant's profile

matches some other profile. Absent that expert analysis, we are left with an abstract

graph or set of numbers that has no bearing on the trial. Pineda was not a surrogate

witness whose only purpose was to act as a channel for the DNA profile to enter into


                                           31
No. 84045-8


evidence. If she was, then the prosecution would hardly be served, or the defendant

identified, by a page of meaningless "gobbledygook." 12 RP at 1538. Rather, Pineda

examined the electropherogram and made the determination that Lui could not be

excluded as a possible DNA donor. 10 Pineda produced her own analysis, "an original

product that can be tested through cross-examination." United States v. Johnson,

587 F.3d 625, 635 (4th Cir. 2009).

      The dissent argues that the jury saw reports prepared by other case analysts,

who were never subject to cross-examination. Dissent at 17. It relies on Pineda's

testimony that Hunan Nasir interpreted the results of samples and wrote the reports.

12 RP at 1552. The dissent ignores Pineda's testimony that she prepared the exhibit

to use with her testimony. /d. at 1497-98; see State Ex. 136 (admitted for illustrative

purposes only and did not go to the jury room). Pineda also testified that she came

to her own results. 12 RP at 1507. She did not simply rely on the conclusions made

by Nasir. !d. She looked at the electronic data from the samples, drew her own

interpretations, and reached her own conclusion. !d. Nothing in the record states that

the jury saw the reports prepared by Nasir. In fact, the exact opposite is true: Pineda

testified that she prepared the exhibit. /d. at 1497-98.

       In looking to the ultimate expert analysis, and not the lab work that leads into

that analysis, we follow the Court in distinguishing between a person who attests to

some fact and a person who aids an expert witness in reaching an attestation of

10
   See 12 RP at 1507 ("I came to my own results .... [l]n the end, all of the data is reduced
to electronic format. Once it comes out of the machine . . . it is what we call an
electropherogram, or a plot. ... I did look at the electronic data from the results .... I did
draw my own interpretation and my own conclusions from it.").



                                             32
No. 84045-8


fact: Melendez-Diaz stressed that live testimony is not required if it merely helps to

establish "the chain of custody, authenticity of the sample, or accuracy of the testing

device." 557 U.S. at 311 n.1. This category of evidence encompasses taking the

clippings, adding the chemicals, and running the machines. It was Pineda who took

the results from the capillary electrophoresis machine and reached a conclusion of

fact from them (thus becoming a witness) and who testified that the conclusion of

fact weighed on an issue in Lui's case (thus becoming a witness against Lui).

      While Pineda did not personally observe the lab tests that underlaid her

analysis-that is, the first four steps of the DNA testing process-Bul/coming

guarantees the accused the right "to be confronted with the analyst who made the

certification," 131 S. Ct. at 271 0, and not the analysts whose work might have

contributed to that certification. Even if Bullcoming required the testifying witness to

have personal knowledge of the forensic testing, Pineda had such knowledge.

Pineda cannot be analogized to the surrogate analyst in Bu/lcoming, or even to the

expert in Williams, who did not work for Cellmark, had no knowledge of Cellmark's

operations, and "for all the record discloses, . . . may never have set foot in

Cell mark's laboratory." 132 S. Ct. at 2268 (Kagan, J., dissenting). Rather, Pineda

was an experienced supervisor with Orchid and was well informed about the

procedures used and observations made. She reviewed the results of the control

samples, she reviewed the testing procedures, and she reviewed her subordinate

analysts' results at each step in the process. She was "a supervisor, reviewer, or

someone else with a personal, albeit limited, connection to the scientific test at

issue." Bul/coming, 131 S. Ct. at 2722 (Sotomayor, J., concurring).


                                           33
No. 84045-8


      The problem in Me/endez-Diaz and Bul/coming was that the defendant was

denied effective cross-examination-in Melendez-Oiaz because the witness was

absent, 557 U.S. at 308, and in Bul!coming because the witness lacked the relevant

knowledge, 131 S. Ct. at 2707. But here, Lui had the opportunity to cross-examine

Pineda on how she arrived at her interpretation and conclusion from the

electropherogram. He did not do so, instead focusing his cross-examination on the

imprecision inherent to the procedure Orchid used: Y-STR testing focuses on the Y

chromosome, which is the same in every person in the same paternal lineage,

meaning that a DNA match for Lui is also a DNA match for Lui's son, father,

grandfather, and so on. Lui was given a meaningful opportunity to impugn Orchid's

DNA evidence, and he in fact did so to the best of his ability.

       It is unclear how Lui's confrontation clause rights would be further vindicated

by requiring the State to call "anyone whose testimony may be relevant in

establishing the chain of custody, authenticity of the sample, or accuracy of the

testing device ... ,"and the Supreme Court has never imposed such a requirement.

Melendez-Diaz, 557 U.S. at 311 n.1. Indeed, such an onerous requirement would,

"for all practical purposes, forbid[] the use of scientific tests in criminal trials." /d. at

332-33 (Kennedy, J., dissenting). Empirical data show that defendants frequently

demand to confront scientific witnesses: since Melendez-Diaz was decided, some

state laboratories have estimated that their backlog of drug' tests has risen by 40

percent and their backlog of alcohol and toxicology tests has risen by 15 percent,

resulting in delays or dismissals when lab technicians are unable to attend trials.

Hon. G. Ross Anderson Jr., Returning to Confrontation Clause Sanity: The Supreme


                                             34
No. 84045-8


Court (Finally) Retreats From Melendez-Diaz and Bullcoming, 60 FED. LAW. 67, 71

(2013). In addition, an analyst may be unable to attend trial due to sickness, travel,

inclement weather, or being called to testify in another trial. Me/endez-Diaz, 557 U.S.

at 343 (Kennedy, J., dissenting). An analyst may also die prior to trial, an issue not

yet resolved by Supreme Court precedent. Williams, 132 S. Ct. at 2251 (Breyer, J.,

concurring).

      The rule we adopt today avoids the risk of unduly burdening the use of

scientific evidence, while preserving the benefits of using a multiplicity of analysts. In

the context of DNA testing, as many as 12 different analysts may be involved in a

single case. !d. at 2252 (Breyer, J., concurring). Spreading out the testing procedure

among different analysts not only promotes "efficiency in the laboratory," 12 RP at

1572, it also is an important safeguard against fabrication. A laboratory that uses

multiple analysts can segregate the analysts working on the suspect's sample from

the analysts working on the crime-scene sample. Williams, 132 S. Ct. at 2252

(Breyer, J., concurring). Screening off the analysts from each other frustrates the

potential fabricator, who will have access to only one of the two DNA profiles needed

for a match to exist. Furthermore, the use of multiple analysts is also a useful

safeguard against error because multiple analysts can review each other's work in a

way that a single analyst cannot.

       In short, we decline to adopt a rule that encourages laboratories to entrust

cases to lone analysts, thereby giving the hypothetical rogue analyst more

opportunities to fabricate results. More generally, we decline to adopt a rule that

makes DNA evidence unduly burdensome to introduce because the use of less


                                            35
No. 84045-8


reliable eyewitness evidence may increase the risk of erroneous convictions. /d. at

2251 (Breyer, J., concurring). Neither result is helpful to defendants or to the State,

and neither result furthers the confrontation clause's goals of checking potential

error or fabrication. Under our test, Pineda was the only person involved in Orchid's

testing process who made a statement of fact that tended to inculpate Lui. Thus

Pineda was exactly the right analyst to satisfy the strictures of the confrontation

clause. The State properly introduced the DNA evidence through her.

   D. Temperature Readings

       Lui also asserts that the State was required to introduce the temperature

readings of Boussiacos's body and the ambient temperature through the live

testimony of Dr. Kathy Raven, who took those readings. But like the Orchid DNA

analysts, Raven did not become a "witness against" Lui by merely taking

temperature readings. She may have been a "witness" by virtue of recording the

temperatures, thus creating factual information for later use by the court. But she did

not do so "against" Lui. Like the raw DNA profile, Raven's temperature data had no

relevance to Lui's case until Dr. Harruff used that data to estimate a range for the

time of death. In fact, until Dr. Harruff determined that the time of death was

consistent with the prosecution's theory, the temperature readings could well have

benefited Lui. In other words, the first prong of our test was met-Raven created a

factual statement of the temperature of Boussiacos's body and of the ambient

environment. But the second prong was not met because these points of data could

not inculpate Lui without the intervening analysis of an expert. Because Harruff used




                                           36
No. 84045-8


his expertise to turn raw data into a conclusion that inculpated Lui, it is Harruff and

not Raven with whom the confrontation clause is concerned.

   E. Toxicology and Autopsy Reports

      Lui objects to the admission of evidence that Boussiacos had no drugs in her

system at the time of death. He asserts that Dr. Richard Harruff had no personal

knowledge about the toxicology screen on Boussiacos's body and did not offer his

professional opinion about the results; rather, he argues that Harruff was merely a

mouthpiece for the conclusions of an absent analyst. Similarly, Harruff testified to

statements taken directly from the autopsy report about which he had no personal

knowledge. These include that Boussiacos had bruising under her scalp and within

her neck muscles, that her hair was in a ponytail, that she was wearing a long

sleeve shirt that was pulled up toward her chest, that her bra was wadded up and

placed underneath her shirt, and that the examining pathologist described certain

scratches as "contusions."

      Lui is correct. Like the temperature readings, the information taken from the

toxicology report and autopsy report were statements of fact. But unlike the

temperature readings, these statements had an inculpatory effect: the toxicology

report was prepared to identify the cause and manner of Boussiacos's death and

relied upon at trial to rebut Lui's testimony that Boussiacos might have been

smoking prior to her death. The statements from the autopsy report were also for the

purpose of identifying the manner of death and were used to prove that Boussiacos

was dressed postmortem. All of the statements were used by the prosecution to

convict Lui.   Furthermore,   unlike Harruff's testimony based on the autopsy


                                          37
No. 84045-8


photographs or temperature readings, Harruff did not bring his expertise to bear on

the statements or add original analysis-he merely recited a conclusion prepared by

nontestifying experts. 11 His testimony falls precisely within the scope of testimony

proscribed by Bul/coming, and it was error to admit the toxicology report and

statements from the autopsy report.

      However, these erroneous admissions do not warrant a new trial. A

constitutional error is harmless if the appellate court is assured beyond a reasonable

doubt that the jury verdict cannot be attributed to the error. State v. Watt, 160 Wn.2d

626, 635, 160 P.3d 640 (2007). Under our "overwhelming untainted evidence" test,

we look to the untainted evidence to determine if it was so overwhelming that it

necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 704 P.2d

1182 (1985).

      We applied the "overwhelming untainted evidence" test in State v. Anderson,

171 Wn.2d 764, 254 P.3d 815 (2011 ). There, the defendant was charged with first

degree child molestation for allegedly abusing a child referred to as M.A.E. /d. at

766. The State introduced the testimony of another alleged victim of Anderson's,

C.C.S., through a nurse practitioner who had examined him. The State also

introduced Anderson's confession to molesting a third child, K.R.P.; the live

testimony of the detective who had investigated K.R.P.'s case; and the testimony of


11
   The dissent suggests that it is inconsistent that we could find a toxicology report to be
inculpatory but not the DNA testing. Dissent at 11. However, DNA testing becomes
significant only when data is turned into a profile and that profile is compared to known
samples. It is at this point that the data becomes meaningful to a case and inculpatory. In
comparison, the toxicology report was an inculpatory statement without being interpreted by
Harruff.


                                            38
No. 84045-8


M.A. E. himself. /d. Anderson appealed, arguing that the trial court had erred by

permitting the nurse to testify to C.C.S.'s statements. We held that even if the

introduction of C.C.S.'s statements violated the confrontation clause, any error was

harmless. /d. at 770. We noted that aside from C.C.S.'s statements, there was also

unchallenged testimony by M.A. E. and evidence of Anderson's prior abuse of K.R.P.

In comparison, we described the nurse's testimony as "cursory" and pointed out that

it occupied less than one page of the trial transcript. /d. For those reasons, we held

that "[g]iven the amount of evidence presented and the fact that nurse Young's

testimony added little, if any, evidence to prove the elements of the current charge

against Anderson, we find that the trial court's error in admitting nurse Young's

testimonial statements was harmless." /d.

      This case is much the same. Like the testimony in Anderson, the toxicology

report does nothing to prove any element of the charges against Lui. Boussiacos's

toxicology was implicated only to rebut Lui's statement to police that Boussiacos

might have been murdered while sneaking out to smoke. Lui's false statement to

investigators, however, was only one of many reasons for the jury to doubt Lui's

credibility. As the prosecution showed, Lui repeatedly changed his accounts of when

Boussiacos planned to depart for California, when she packed for her trip, and when

he became aware of Boussiacos's intention to leave. Lui's testimony about his affair,

his phone call with his sister at 1:00 a.m., Boussiacos's favorite pajamas, and

Boussiacos's engagement ring was flatly inconsistent with the testimony of other

witnesses. Finally, DNA evidence contradicted Lui's denial that he had had sexual




                                            39
No. 84045-8


intercourse with Boussiacos prior to her death. Aside from the toxicology report, the

State produced significant evidence detracting from Lui's credibility.

         The statements taken from the autopsy report about Boussiacos's injuries

were minor compared to the properly admitted evidence. Harruff, trained in forensic

pathology, examined photographs taken both at the crime scene and during the

autopsy. Harruff describes the injuries in the photographs in over 20 pages of direct-

examination. Harruff testified that the photographs showed a number of prominent

abrasions      on   Boussiacos's     neck and       petechiae 12   on    her face,   indicating

strangulation and a struggle. There were also a number of other injuries, including

bruising on her face, shoulders, left hand, and arm pit region. Harruff testified that

the color of the abrasions indicated that the injuries occurred close to the time of

death.

         The other statements taken from the autopsy report were minor. Harruff was

asked by the State if page 3 of the autopsy report indicated how Boussiacos's hair

was styled. He responded that her hair was pulled back in a ponytail. However, the

jury later saw a picture of the left side of Boussiacos's hair. The jury also saw

photographs of Boussiacos's pants, underwear, shoes, and socks, indicating that

she was abnormally dressed. Additionally, her shirt and shoes were present in court.

Harruff's improper testimony was minor compared to the evidence properly

admitted. And, properly admitted evidence corroborated most of his statements.

         Significant other untainted evidence supported a finding of guilt. The State

produced evidence showing Lui was angry that Boussiacos was going to "leave him

12
     Small red dots on the skin resulting from ruptured blood vessels.


                                               40
No. 84045-8


and reclaim her own life," 14 RP at 1805; evidence suggesting that Boussiacos had

died before she could dress or put on her customary makeup; evidence suggesting

that Boussiacos had been dressed and her bags packed by "somebody who doesn't

know anything about women," 14 RP at 1838; testimony that a police bloodhound

led investigators directly to Lui; evidence of Lui's familiarity with the area where

Boussiacos was found;       and evidence of Lui's unusual conduct during the

investigation. The weight of this evidence makes it implausible that the jury's verdict

could be attributed to the toxicology and autopsy reports-evidence that was

discussed in 2 pages of a nearly 2,000 page record. 10 RP at 1397-98. The

cumulative, untainted evidence necessarily led to a finding of guilt, and thus the

Court of Appeals correctly rejected Lui's confrontation clause challenge to the

admission of the toxicology and autopsy reports.

                                    CONCLUSION

      The State satisfied the confrontation clause when it produced the "witness[es]

against" the defendant-that is, analysts who use their expertise to reach a factual

conclusion bearing on an issue in Lui's case. Lui's claim to the contrary overlooks

the plain language of the confrontation clause and its overarching purpose of

preventing civil-law examinations of the type used in Sir Walter Raleigh's trial.

Crawford, 541 U.S. at 44. The absent DNA analysts here cannot be compared to the

absent Lord Cobham in that trial: their role was limited to handling and manipulating

evidence and machines, analogous to the chain of custody. While we are sensitive

to the risk of erroneous or fraudulent lab conduct, the potential for error is no greater

than the risk of mishandling of evidence somewhere along the chain of custody.


                                           41
No. 84045-8


Because the chain of custody is not a confrontation clause issue, neither is

laboratory work, without more.

      Here, Pineda was Lord Cobham to Lui's Raleigh: by taking the output of a

laboratory process and using her expertise to construct an incriminating DNA profile

from the data, she became Lui's accuser. The confrontation clause required

Pineda's testimony, which the State produced. Therefore, there was no error.

Neither was there error in the court's admission of temperature or reversible error in

the admission of the toxicology or autopsy evidence. We affirm the Court of Appeals.




                                          42
No. 84045-8




                        ;;·
      WE CONCUR.




                   43
State v. Lui (Sione P.)




                                    No. 84045-8




       STEPHENS, J. (dissenting)-While the majority's test "avoids the risk of

unduly burdening the use of scientific evidence," majority at 35, it does so only by

ignoring and misreading controlling precedent, at the cost of Washington

defendants' Sixth Amendment right to confront the witnesses against them. The

majority's misguided detour into long-settled questions leads it to conclude that

laboratory reports are not testimonial after Melendez-Diaz v. Massachusetts, 557

U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and that a supervisor can recite

the testimony of a subordinate after Bullcoming v. New Mexico,_ U.S. _ , 131

S. Ct. 2705, 180 L. Ed. 2d 610 (2011).

       These conclusions violate Sione Lui's federal constitutional right to confront

the witnesses against him. Whether the majority believes the confrontation clause

should apply to testimony about "scientific" evidence-and the increasingly serious

incidents of misconduct at crime laboratories counsel that it should-is immaterial;
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




it is the law under Melendez-Diaz and Bullcoming, and remains the law after

Williams v. Illinois, _U.S._, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) (plurality

opinion). We cannot wave away the clear holding of these cases because we would

have decided them differently; nor can we adopt a test that categorically violates the

confrontation rights of defendants.

       Each of the four reports the prosecution offered against Lui is testimonial

under controlling United States Supreme Court precedent.            Because the State

· funneled this testimony into evidence through expert witnesses who lacked any

personal knowledge of the facts they recited, Lui was denied his right of

confrontation under the Sixth Amendment. This error was not harmless, and he is

entitled to a new trial. I respectfully dissent.

                                       ANALYSIS

       The majority claims that our discretion in this case is boundless because case

law from the United States Supreme Court "does not provide a controlling rule for

 cases ... that involve expert witnesses." Majority at 10. This is an overstatement

 at best. In Williams, the Court failed to resolve whether an expert witness may testify

 to "his independent opinion about underlying testimonial reports that were not

 themselves admitted into evidence." Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J.,

 concurring).

       But this is the only question the Court has not answered, and the only issue on

 which we granted review. See Pet. for Review at 1 ("Is the Sixth Amendment

 Confrontation Clause violated when an expert witness's testimony is based on the


                                             -2-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




work of others who do not testify, and that work was done for the purpose of the

criminal prosecution?"). Unfortunately, the majority wanders far afield from this

issue without addressing it, instead offering new law in well-traveled areas. Because

the testimonial reports introduced against Lui are identical to the reports at issue in

Melendez-Diaz and Bullcoming, those precedents control our analysis.

       A. Laboratory Reports and Test Results Prepared for Trial Are Testimonial

       The confrontation clause of the Sixth Amendment guarantees that "[i]n all

criminal prosecutions, the accused shall enjoy the right ... to be confronted with the

witnesses against him." U.S. CoNST. amend. VI. The majority claims this "plain

language" as the source of its test. Majority at 10. The plain language of the

confrontation clause, however, does not distinguish between expert and nonexpert

witnesses. Moreover, the United States Supreme Court has already determined that

"[t]he Constitution's text does not alone resolve" the scope of the confrontation

right. Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004).

       Instead, we must tum to controlling United States Supreme Court precedent.

While the majority counts "[p]erspectives" and "camps" in these cases, see majority

at 15, it should count signatures. In Melendez-Diaz and Bullcoming, five justices

signed majority opinions of the Court, yielding precisely the authority the majority
                                                                                 '

complains we lack. Compare Melendez-Diaz, 557 U.S. at 306 ("Justice [Antonin]

Scalia delivered the opinion of the Court") (emphasis added) (capitalization




                                             -3-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




omitted) 1 and Bullcoming, 131 S. Ct. at 2709 ("Justice [Ruth Bader] Ginsburg

delivered the opinion of the Court, except as to Part IV and footnote 6" (emphasis

added) (capitalization omitted)), with Williams, 132 S. Ct. at 2227 ("Justice [Samuel]

Alito [Jr.] announced the judgment of the Court and delivered an opinion, in which

the Chief Justice, Justice Kennedy, and Justice Breyer join" (emphasis added)

(capitalization omitted)).

       Rather than apply the law of these cases to the issues before us, the majority

crafts an entirely new test, the centerpiece of which is a distinction between neutral

and inculpatory witnesses and between conventional and nonconventional witnesses

(i.e., nonexpert and expert witnesses). See majority at 24 n.8. The majority finds

support for its distinction in Justice Anthony Kennedy's dissent in Melendez-Diaz.

See id. at 16. The majority embraces Justice Kennedy's view that laboratory analysts

       1
        While Justice Clarence Thomas also wrote separately in Melendez-Diaz, this does
not erase the precedential value of the majority opinion he signed. See United States v.
King, 194 F.R.D. 569, 576 n.7 (E.D. Va. 2000) (explaining that '"[a] decision with only a
simple concurrence should not be considered a plurality decision'" (quoting Ken Kimura,
Note, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 CORNELL L.
REv. 1593, 1595 n.13 (1992))). Justice Thomas knows how to concur in a judgment
without signing the opinion; he did it in Davis v. Washington, 547 U.S. 813, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006), which was decided two years before Melendez-Diaz. Id.
at 834 (Thomas, J., concurring) (writing separately because "I concur only in the judgment
in Davis v. Washington"). Instead, his simple concurrence explained that the report also
bore sufficient "'indicia of formality"' to come within the confrontation clause. Melendez-
Diaz, 557 U.S. at 329-30 (Thomas, J., concurring) (quoting Giles v. California, 554 U.S.
353, 378, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008)). Moreover, the Court's definition in
Melendez-Diaz was not "qualified by a requirement of formality," as the majority believes,
majority at 16, but rather explained that there are three categories of testimonial statements:
"'ex parte in-court testimony or its functional equivalent,"' '"extrajudicial statements ...
contained in formalized testimonial materials,"' and "'statements that were made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial."' Melendez-Diaz, 557 U.S. at 310
(quoting Crawford, 541 U.S. at 51-52).

                                              -4-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




are not "'witnesses against'" a defendant because they make neutral factual findings,

and unlike "conventional" inculpatory witnesses they should not be required to

testify to their observations. Id.; see Melendez-Diaz, 557 U.S. at 333-34 (Kennedy,

J., dissenting); Bullcoming, 131 S. Ct. at 2726 (Kennedy, J., dissenting). A casual

reader of the majority's account would be forgiven for assuming that Justice

Kennedy's distinction between neutral and inculpatory witnesses is the law. It is

not. The United States Supreme Court has rejected the majority's newfound test

four times.

       In Crawford, seven justices held that the confrontation clause applies to all

witnesses against the accused regardless of whether the witnesses are neutral or are

experts, such as coroners. 541 U.S. at 47 n.2, 66. In Melendez-Diaz, five justices

again rejected the notion that the confrontation clause distinguishes between neutral

or inculpatory witnesses or that laboratory analysts should be exempted because they

are unconventional witnesses.        557 U.S. at 313-14; id. at 329-30 (Thomas, J.,

concurring). The Court held that the confrontation clause, when read in conjunction

with the adjacent compulsory process clause, "contemplates two classes of

witnesses-those against the defendant and those in his favor." Id. at 313. The

Court dismissed the majority's third class of "neutral" witnesses, holding instead

that all witnesses who testify against the defendant must be available for cross-

examination, not just those who offer "inculpatory" testimony. I d.; see also id. at

316 (noting this distinction "would exempt all expert witnesses-a hardly

'unconventional' class of witnesses"). The Court further explained that "[i]t is often,


                                             -5-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




indeed perhaps usually, the case that an adverse witness's testimony, taken alone,

will not suffice to convict." Id. at 314. The Court emphasized that it has been

"longstanding case law" that a police report identifying certain property as stolen

triggers the confrontation clause against a defendant on trial for receiving stolen

property even though the report is not actually inculpatory. !d. Moreover, the Court

refused to exclude neutral scientific testing from confrontation clause protection

because it "is little more than an invitation to return to our overruled decision in

[Ohio v.] Roberts," 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).

Melendez-Diaz, 557 U.S. at 317.

       Five justices again rejected the majority's distinction between neutral and

inculpatory testimony in Bullcoming, holding that even results transcribed from a

gas chromatograph machine without the analyst's interpretation or independent

judgment are subject to confrontation. 131 S. Ct. at 2714-15. Justice Kennedy

complained (correctly) that Bullcoming would subject all "impartial lab results" to

confrontation, even those "prepared by experienced technicians in laboratories that

follow professional norms and scientific protocols." !d. at 2726 (Kennedy, J.,

dissenting).    Most recently, in Williams, five justices once again rejected the

argument that only testimony accusing a specific, known defendant is subject to

cross-examination.      132 S. Ct. at 2273-74 (Kagan, J., dissenting); id. at 2263

(Thomas, J., concurring in the judgment).

       The majority's insistence that its confrontation clause test is grounded in the

plain language of the Sixth Amendment is particularly ironic because adopting it


                                             -6-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




requires us to ignore the plain language of the United States Supreme Court. While

the Court has been divided on many issues involving the confrontation clause, in

four cases at least five justices have rejected the majority's view. After several

unsuccessful challenges in which this argument was the centerpiece of the State's

briefing and pressed forcefully at oral argument, there can be no doubt that

laboratory analysts are constitutionally indistinguishable from any other witness,

and that reports about results observed in a laboratory are no different from reports

by any eyewitness about any other subject matter. Most recently, in State v. Jasper,

174 Wn.2d 96, 115-16, 271 P.3d 876 (2012), this court unanimously relied on

Melendez-Diaz and Bullcoming as controlling authority for this proposition and

rejected the State's attempt to paint these cases as less authoritative than Crawford.

Even the Williams plurality acknowledges that Crawford, Melendez-Diaz, and

Bullcoming "are to be deemed binding precedents."          132 S. Ct. at 2242 n.13

(plurality opinion). The majority may not like these holdings, but it cannot wish

them away.

       Instead, we must apply controlling law to the questions before us. The rule is

simple: a statement is testimonial, and gives rise to a confrontation right, if its

primary purpose is "to establish or prove past events potentially relevant to later

criminal prosecution." Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266,

165 L. Ed. 2d 224 (2006). This "primary purpose" test applies equally to a written

statement that purports to relay the results of scientific testing. See Melendez-Diaz,

557 U.S. at 310-12 (holding that a certificate reporting the results of drug testing


                                             -7-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




triggers the confrontation clause because it was "'made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial,'" and the analyst who produced it was well aware of

its "evidentiary purpose" (quoting Crawford, 541 U.S. at 52)). The primary purpose

test applies whether the witness wears a police jacket or a lab coat, and whether the

testimony concerns a crime scene or a test tube.

       B. The Laboratory Reports and Test Results at Issue Are Testimonial

       In its most recent confrontation clause decision, a fractured United States

Supreme Court affirmed the Supreme Court of Illinois without a holding. Williams,

132 S. Ct. 2221. Justice Samuel Alito Jr. wrote the lead opinion, joined by three of

his colleagues. I d. at 2227. This plurality rested on two grounds, the first being that

the DNA (deoxyribonucleic acid) profile was not offered for the truth and the second

being a narrower version of the "primary purpose" test that covers only inculpatory

statements-those made "for the purpose of obtaining evidence to be used against

petitioner." Id. at 2228. This narrower test is virtually identical to the one the

majority discovers in the "plain language" of the Sixth Amendment. However, five

justices flatly rejected this drastic narrowing of the confrontation clause, and it is no

more the law than are Justice Kennedy's previous dissents. Id. at 2273-74 (Kagan,

J., dissenting); id. at 2262-63 (Thomas, J., concurring in judgment) (noting the

plurality's test lacks "any grounding in constitutional text, in history, or in logic").

       Because five justices failed to sign any one opinion or concur in any one

rationale, Williams merely affirmed the lower court's judgment without a holding.


                                             -8-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




It stands as a single-case deviation from the majority opinions of the Court in

Melendez-Diaz and Bullcoming, and it is no broader than its facts. Under those facts,

all we know from Williams is that an expert may testify to a DNA profile performed

by a nontestifying analyst without triggering the confrontation clause if that profile

is an informal report created in order to meet an ongoing emergency and to exclude

possible suspects before the defendant was ever targeted as a suspect, and that profile

is never admitted, shown, read, or identified to the fact finder as a source of the

expert's opinions in a bench trial. Id. at 2230, 2236, 2242 (plurality opinion).

       Nonetheless, Melendez-Diaz and Bullcoming remain the law, and they plainly

hold that "any document prepared for use in a criminal proceeding" is testimonial.

Jasper, 174 Wn.2d at 112. Because each of the reports at issue in this case meets

this test, and also meets the Williams plurality's narrower definition of "primary

purpose," each is testimonial and falls within the confrontation clause.

       At issue are four potentially testimonial forensic reports. First, Dr. Kathy

Raven recorded the temperature of Elaina Boussiacos' s body and the outside air at

the time and place where her body was found. 10 Report of Proceedings (RP) at

1353-55. Second, Raven prepared an autopsy report that concluded Boussiacos was

killed by strangulation. Id. at 1334-40, 1405; Ex. 168, at 1. As part of her report,

Raven also took photographs of Boussiacos' s injuries and the manner in which she

was dressed.      10 RP at 1358-65, 1375-95.              Third, Martin Hughes with the

Washington State Toxicology Laboratory (WSTL) prepared a toxicology report on

blood samples taken from Boussiacos at the request of the King County medical


                                             -9-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




exammer.     Ex. 168, at 10.      Finally, DNA analysts Hunan Nasir of Reliagene

Technologies and Ms. Vendetes of Orchid Cellmark prepared separate reports that

compared DNA samples taken from Lui, Lui's son, and Boussiacos's ex-husband

with DNA samples collected from the victim. 12 RP at 1491, 1552, 1567; Ex. 136,

at 4.

        Each of these reports is testimonial under the logic of the four Williams

dissenters because it was '"made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later

trial."' Crawford, 541 U.S. at 52 (quoting amici brief). Each of these reports is also

testimonial under the Williams plurality's narrower "primary purpose" test, and is

therefore testimonial under the reasoning of eight justices.

        Unlike the DNA testing in Williams that took place before any suspect had

been identified, the reports at issue here were created after investigators identified

Lui as a suspect in Boussiacos's murder on February 8, 2001. 8 RP at 996. Raven

performed the autopsy on February 10, WSTL performed the toxicology screen on

February 12, and Orchid Cellmark, and Reliagene Technologies conducted the DNA

testing even later-all after Lui was a suspect and solely for the purpose of collecting

evidence for his prosecution. Ex. 168, at 2, 10. Consequently, here, unlike in
Williams, there was a "'prospect of fabrication"' because the £.nalysts had an

incentive to produce something "other than a scientifically sound and reliable

profile." Williams, 132 S. Ct. at 2244 (plurality opinion) (quoting Michigan v.

Bryant,_U.S._, 131 S. Ct.ll43, 1157, 179L. Ed. d93 (2001)).


                                            -10-
State v. Lui (.f)ione P.), 84045-8 (Stephens, J. Dissent)




        Also unlike the DNA testing in Williams, which the plurality described as

inherently exculpatory because it was designed to exclude huge portions of the

population in a search for an unknown rapist, the DNA testing performed by Orchid

and Reliagene was inherently inculpatory because it was prepared "for the primary

purpose of accusing a targeted individual." Id. at 2229, 2243 (plurality opinion).

These lab-tested samples were taken from Lui to determine whether it matched DNA

samples recovered from the crime scene and for the sole purpose of proving that he

had recent sexual relations with the victim and had tied her shoelaces after death. 12

RP at 1491.

        The majority claims the DNA reports are neutral and insists that they "do[]

not ... identify (let alone inculpate) anyone," majority at 31, because they are

merely "affirmation[s] of fact" that "a given DNA donor has certain generic

characteristics." Id. at 30. It is difficult to see how the reports do anything but

identify Lui as the source of cells and semen found on the victim's body. Ex. 136,

at 4.    Indeed, the majority lauds DNA tests for their reliability in obtaining

convictions of identified individuals. Majority at 36. Moreover, if the majority is

correct that a negative blood test for nicotine is inculpatory, id. at 3 7, how is a DNA

report that positively identifies Lui as the contributor and excludes the only other

suspect not at least equally as inculpatory? The majority reasons that the reports are

distinguishable because a toxicology test, unlike a DNA profile, is inculpatory

without having to compare the results to anything. See id. at 38 n.ll. The majority,

however, fails to explain how the toxicology report indicating the victim had no


                                              -11-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




nicotine in her bloodstream is at all inculpatory unless compared to Lui's statement

that she may have been attacked when she went out to smoke a cigarette.

       Additionally, although the majority characterizes the DNA report as

"meaningless 'gobbledygook,"' that required Gina Pineda's expertise to decode, id.

at 32 (quoting 12 RP at 15 3 8), the graphic Pineda referred to was prepared as a visual

aid for trial, and it is both readable and meaningful to a lay person. The graphic

Pineda referred to on the stand takes the familiar form of a chart. See Ex. 136, at 4.

Each column displays a source of DNA, and each line shows a potential for a genetic

match. Id. The more matches between a suspect and a sample, the greater the

likelihood that the sample contains the suspect's DNA. While expertise is necessary

to calculate precisely how probative any given result is in terms of probability,

anyone can see that there are far more matches between the samples and Lui's DNA

than any other potential suspect. Thus, the report is plainly inculpatory, and hardly

"gobbledygook." But even if the report were written in hieroglyphics, the Sixth

Amendment guarantees a defendant the right to confront all witnesses against him,

not just those who offer easy-to-understand testimony, or who openly profess the

defendant's guilt.

       Even the State concedes that the reports offered against Lui implicate the

confrontation clause under the Williams plurality's primary purpose test. State's

Suppl. Br. Addressing Williams v. Illinois and Article I, Section 22 of the

Washington Constitution at 5 n.5 (admitting that the plurality's narrow definition

"might not apply" to the reports in this case because Lui had already been identified


                                            -12-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




as a suspect). The State is correct. Whether the DNA report meets the majority's

pliable definition of "inculpatory," it and each of the other reports at issue satisfies

the definition of "testimonial" applied by eight of the justices who decided Williams

and by a majority of the Court in Melendez-Diaz and Bullcoming.

       Raven's recorded temperature measurements are also testimonial under

Melendez-Diaz and Bullcoming, and under the Williams plurality's narrower

"primary purpose" test. Raven recorded these readings from Boussiacos' s body and

the outside air where her body was found on February 8, shortly before the State

identified Lui as a suspect. See 10 RP at 1353-56. However, unlike the DNA testing

in Williams, these temperature readings were not recorded to meet an ongoing

emergency or exclude potential suspects-they were designed to determine the time

of the victim's death. 14 RP at 1809.

       Although the majority claims recording this temperature reading was not an

inculpatory act, majority at 36, the only conceivable purpose for recording it, and

for determining the time of Boussiacos' s death, was to support a criminal

prosecution. An objective witness in Raven's circumstances would anticipate the

use of her measurements in a later trial. See State v. Mason, 160 Wn.2d 910, 921-

23, 162 P.3d 396 (2007) (noting that "the test is objective"), abrogated in part on

other grounds by Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d

488 (2008); see also Williams, 132 S. Ct. at 2243 (plurality opinion) (noting that "the

primary purpose that a reasonable person would have ascribed to the statement"

controls the inquiry). Because the temperature measurements were recorded not by


                                            -13-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




a third-party private laboratory but by a state investigator at a murder scene for the

primary purpose "to establish or prove past events potentially relevant to later

criminal prosecution," Davis, 547 U.S. at 822, these results would satisfy even the

narrower test for testimonial statements advanced by the Williams plurality.

       Raven's autopsy report and the WSTL toxicology report were no less

inculpatory or testimonial.      Even the majority concedes that they met its test.

Majority at 37-38.       They were prepared to prove the cause and manner of

Boussiacos' s death, and relied upon at trial to prove that the killing was intentional

and that she had no nicotine in her system-not to exclude a class of suspects. 10

RP at 1375-99; 14 RP at 1830-31, 1850-51. None of these tests were designed to

meet an "ongoing emergency" or to catch an unidentified criminal who "was still at

large." Williams, 132 S. Ct. at 2243 (plurality opinion).

       Like the testimonial DNA reports created by Nasir and Vendetes that were

introduced to the jury through Pineda's testimony, Raven's autopsy report was

testimonial and introduced into evidence through Dr. Richard Ham1ffs testimony.

Raven's autopsy report qualifies as "testimonial" under any test. It is testimonial

under the United States Supreme Court's "primary purpose" test, the narrower

Williams plurality test, and even the majority's new "witness against" test. Majority

at 37-38. Like any other autopsy report, it is not "machine-generated," it contains

numerous attestations of fact, and Raven's account of the victim's body when found

and the cause and manner of death can be described only as inculpatory.




                                            -14-
State v. Lui (5"ione P.), 84045-8 (Stephens, J. Dissent)




       While medical examiners may perform autopsies for reasons both related and

unrelated to trial, the confrontation clause does not require that trial testimony be the

sole purpose for an out-of-court statement-only that it be the primary purpose.

Bryant, 131 S. Ct. at 1155; Davis, 547 U.S. at 822. This test is objective, not

subjective; it asks whether a reasonable person standing in the examiner's shoes

would understand the report's "evidentiary purpose" and '"believe that the statement

would be available for use at a later trial."' Melendez-Diaz, 557 U.S. at 311 (quoting

Crawford, 541 U.S. at 52). Raven's autopsy report meets this test.

       On the front page of the report, Raven signed her name to her opinion that

"[t]he cause of death ... is due to asphyxia due to neck compression. The manner

of death is classified as homicide." Ex. 168, at 1. Regardless of whether Raven

complied with a statute when she wrote those words, no reasonable person would

have any doubt that the report would be offered against a defendant at a murder trial.

Indeed, the very reason medical examiners have a statutory duty to prepare written

autopsy reports is to further and support the criminal prosecution of persons accused

of assault, rape, murder, and other serious crimes. No one subject to the statutory

command to provide such a report "upon the request of the prosecuting attorney"

could misunderstand its purpose or significance. 2 RCW 68.50.1 06.


       2
         This same logic applies to our analysis of the toxicology report, which the majority
correctly concludes is testimonial, albeit for the wrong reasons. In Washington, the state
forensic lab is required by statute to provide "all necessary toxicology procedures requested
by all coroners [and] medical examiners." RCW 68.50.107; RCW 43.43.670(l)(c). The
toxicology report in this case was requested by the King County medical examiner and was
no less mandated by statute than the autopsy report. Ex. 168, at 10.

                                             -15-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




       If there was ever any doubt that autopsy reports satisfy the primary purpose

test for testimonial evidence, Melendez-Diaz erased it. See 557 U.S. at 318 n.5

(naming autopsies among the class of forensic analyses subject to the confrontation

clause); id. at 322 ("whatever the status of coroner's reports at common law in

England, they were not accorded any special status in American practice" (citing

Crawford, 541 U.S. at 47 n.2)); id. at 335 (Kennedy, J., dissenting) (acknowledging

that autopsy reports would satisfy the majority's test).

       C. The Results of Genetic Testing Are Testimonial

       The majority contends that the test results reported by analysts at Orchid and

Reliagene are not subject to the confrontation clause because genetic tests yield

"'raw, machine-produced data"' that is not testimonial. Majority at 20 (emphasis

omitted) (quoting Bullcoming, 131 S. Ct. at 2714 (Sotomayor, J., concurring)). The

majority is wrong, both about the law and about these tests.            Although Pineda

testified that she examined raw machine data to prepare her report, 12 RP at 1507,

the State did not offer this data into evidence and the jury never saw it. The jury did

see excerpts from the reports prepared by analysts Nasir and Vendetes that purported

to summarize the results of this testing. 3 Ex. 136, at 4; see 12 RP at 1552, 1540. It

       3
          The majority concludes that "[n]othing in the record states that the jury saw the
reports prepared by other lab analysts," majority at 32, based on Pineda's testimony that "I
did look at the electronic data from the results in the samples in this case. I did draw my
own interpretation and my own conclusions from it." 12 RP at 1507. The record, however,
is not so clear as the majority believes. Pineda's aforementioned testimony was in response
to questions regarding how she arrived at her expert conclusions. Id. She did not specify
whether the chart that the jury saw was based on raw data from the electropherogram or
from the reports of Nasir and Vendetes. However, when explaining the data in the chart,
Pineda explained that the data was based on whether it was reported. Pineda specifically
stated, "If you look at the other column, starting with the right most column, the vaginal

                                            -16-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




is this testimonial report that implicates the confrontation clause, and Lui had a right

to confront Nasir and Vendetes about the results they recorded, no matter how these

were generated.

       As for the DNA reports, they were plainly the work of human hands and a

human mind, as was the rest of the presentation of which they were a part. Ex. 136,

at 1-4. It does not matter that they summarized the results of repeated DNA testing,

much of which was performed by machine; virtually all forensic lab work is

performed by or in conjunction with machines, just as police work involves radar

detectors, breath test devices, and license plate readers. Justice Sonia Sotomayor's

caution about the scope of the Court's holdings in Bullcoming carves out only raw,

machine-produced data, not all testimony that purports to relate the results of

machine testing, about which the witness may just as easily lie or be mistaken as

when relaying any other fact. See 131 S. Ct. at 2722 (Sotomayor, J., concurring).

       The majority concedes that the WSTL toxicology report was inculpatory and

therefore implicated Lui's confrontation rights, majority at 38, though chemical

analysis of blood is hardly less machine aided than DNA testing. Reports attesting

to machine-generated results were squarely at issue in both Melendez-Diaz and

Bullcoming.



wash, you can see that at some row you have a number and other have an NR, which stands
for no results or not reportable for any reason. That means that we didn't detect peaks at
all at that locus, or the peaks did not meet the minimum threshold for us to use it in our
interpretation and to put it in a report." !d. at 1540. Based on Pineda's testimony, it seems
the jury did see data from the DNA reports prepared by Nasir and Vendetes, though it was
funneled through Pineda's testimony and chart.

                                            -17-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




        In Melendez-Diaz, a majority of the Court rejected the distinction between

testimony about tests that are "'neutral"' and "'scientific,"' and less-reliable

"testimony recounting historical events, which is 'prone to distortion or

manipulation."' 557 U.S. at 317. Instead, the Court insisted that analysts must
testify about recorded laboratory results even if they possess "the scientific acumen

of Mme. Curie and the veracity of Mother Teresa." Id. at 319 n.6.             And in

Bullcoming, the Court categorically rejected the argument that an analyst was not

subject to confrontation because he was a "'mere scrivener"' who reported factual

output from a machine, exactly as DNA analysts Nasir and Vendetes did here when

they transcribed the results of testing into a human-readable report. 12 RP at 1552,

1567; see 131 S. Ct. at 2714-15 (rejecting the distinction between neutral and

inculpatory facts, and noting it would reach far beyond laboratory testing to all

testimony about "factual conditions or events," such as '"the light was green'").

Moreover, Nasir and Vendetes were not mere scriveners; "[Nasir] was the one to

interpret the results and write the reports," 12 RP at 1552, and Vendetes decided

whether to exclude certain peaks in the DNA from the Cellmark report, id. at 1569,

1572.

        It is true that photographs, blood samples containing DNA, and indeed all

forms of physical evidence are not testimonial, but this is because they do not testify

to anything. It is because physical evidence does not assert any fact beyond its own

existence. State v. Appleby, 289 Kan. 1017, 221 P.3d 525, 551 (2009) ("DNA itself

is physical evidence and is nontestimonial"); Herrera v. State, 367 S.W.3d 762, 773


                                            -18-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




(Tex. App. 2012) ("[a]n autopsy photograph ... is not a testimonial statement"). But

physical evidence is made a part of testimony, and a confrontation right arises, when

a human witness attests to some fact about the physical evidence that is not apparent

from the fact of the evidence itself.

         The majority's concern that respecting defendants' Sixth Amendment

confrontation rights in this context will swamp the system with unnecessary

witnesses is hyperbolic. No one disputes that the State can offer evidence without

producing a witness to testify to each step in the chain of custody. See Melendez-

Diaz, 557 U.S. at 311 n.1 ("we do not hold ... that anyone whose testimony may be

relevant in establishing the chain of custody, authenticity of the sample, or accuracy

of the testing device, must appear in person as part of the prosecution's case"). The

majority's argument that not every analyst who operates a machine or performs a

step in the analysis becomes a "witness" is a straw man. The confrontation clause

obviously does not require every person who touches physical evidence to be cross-

examined. No one claims that it does, and the majority needlessly belabors this

point.

         By definition, the confrontation guaranty applies only to witnesses who testify

against the defendant. Crawford, 541 U.S. at 52. Witnessing a laboratory test is a

necessary condition of being a "witness" under Bullcoming, but it is not a sufficient

condition that gives rise to a confrontation right under Crawford andMelendez-Diaz.

An analyst who touches a sample does not testify against a defendant any more than

a police officer does when he handles physical evidence at a crime scene. A


                                            -19-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




confrontation right anses only when that witness testifies against a criminal

defendant, and when the State offers that testimony against the defendant.

       The confrontation clause obviously does not give Lui the right to cross-

examine the analysts who took shoelace cuttings and processed the samples, but not

because they work in a laboratory or because their analysis was based on the output

of machines. Lui has no right to cross-examine these analysts for the simple reason

that their testimony was not offered against him. Unlike the other analysts who

worked on these samples, Nasir and V endetes each prepared a report testifying to

their observations of the results. 12 RP at 1552, 1567; Ex. 136, at 4. Moreover,

Nasir and Vendetes did more than simply record the data-they created it. See

Melendez-Diaz, 557 U.S. at 322-23. They interpreted the data, deciding what to

report and what to exclude.         12 RP at 1552, 1569, 1572.     These reports are

testimonial, and because the State offered it against Lui at trial, he had the right to

cross-examine the analysts who prepared them.

       Not only does the confrontation clause draw no distinction between testimony

about laboratory results and testimony about other events, but the majority's

characterization of this testimony as inherently accurate is itself flawed. Scientific

evidence from test results is not as objective and factual as the majority believes.

Before a DNA test result is reported on a graph or chart, a human analyst picked up

each sample, made notations on a report (or did not), used care to ensure the sample's

integrity (or did not), followed the laboratory's protocol to ensure accuracy (or did




                                            -20-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




not), reported all DNA peaks (or did not), and recorded his or her observations

accurately (or invented them out of whole cloth).

       To the extent that forensic testing depends upon a human analyst, it contains

the same potential for human error and calls just as strongly for cross-examination

as testimony by a "conventional" witness about "conventional" topics.                See

Williams, 132 S. Ct. at 2264-65 (Kagan, J., dissenting) (arguing that "[c]ross-

examination of the analyst is especially likely to reveal whether vials have been

switched, samples contaminated, tests incompetently run, or results inaccurately

recorded").

       The serious and growing problem of "drylabbing," in which forensic analysts

report results of tests that were never performed, also belies the majority's

confidence that the results of supposedly objective, factual machine data cannot

easily be manipulated or manufactured. In Massachusetts, a state crime lab analyst

with fraudulent scientific credentials attested to fictional drug test results in roughly

34,000 cases without drawing any concern from her supervisors. See J. Hearing of

the H Comms. On Pub. Health, Pub. Safety & Post-Audit Oversight, 187th Gen.

Court (Mass. 2012) (statement of Dr. JudyAnn Bigby, Sec'y, Exec. Office of Health

& Human Servs., Nov. 28, 2012, available at http://www.mass.gov/eohhs/docs/

bigby-testimony-crime-lab-112812.doc; Brittany Brady, Chemist in Massachusetts

Drug Sample Case Lied about Degree, CNN (Sept. 26, 2012, 9:59 AM),

http://www .cnn.com/20 12/09/25/justice/massachusetts-chemist.            Despite    the

majority's attempt to pin these incidents on isolated and "hypothetical rogue


                                            -21-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




analyst[s]," at least one other analyst at a Massachusetts cnme lab was also

tampering with evidence. Majority at 35; Zach Howard, Second Chemist Charged

in Massachusetts Drug Lab Scandal, REUTERS (Apr., 1 2013, 5:23 PM),

http://www .reuters. com/article/20 13/04/0 1/us-usa-massachusetts-crimelab-idUSB

RE9300KJ20130401.

       Laboratory misconduct is not limited to Massachusetts. Forensic examiner

Jonathan Salvador's "lack of attention to detail" and "lack of understanding of

chemistry" were rewarded with numerous promotions at the Public Safety crime lab

in Houston, where his falsification of results has put close to 5,000 drug cases into

question. James Pinkerton & Brian Rogers, Crime Lab Analyst J(ept on Job Despite

Shoddy Work, HousT. CHRON. (Apr. 6, 2013), http://www.houstonchronicle.com/

news/houston-texas/houston/article/Crime-lab-analyst-kept-on-job-despite-shoddy-

work-4413046.php. Other examples abound. See Melendez-Diaz, 557 U.S. at 318-

19 (describing incidents); Thomas J. Lueck, After Falsified Test Results, Kelly

Orders Forensic Shakeup,           N.Y. TIMES        (Apr.   20,   2007),   available   at

http://www.nytimes.com/2007 /04/20/nyregion/20chief.html?_r=1 &0               (reporting

that a police crime lab analyst falsely reported results of drug tests).

       The majority's breezy dismissal of the potential for laboratory fraud is

particularly inappropriate given Washington's recent history of such problems. In

2008, the head of the state crime and toxicology labs resigned after King County

judges found "ethical lapses and a climate of compromise" at the facility, including

a senior manager who fabricated toxicology results. State Toxicology Lab Chief


                                            -22-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




Resigns over DUI Errors, KOMO NEWS (Feb. 14, 2008, 2:38 PM), available at

http://www.komonews.com/news/local/15643687.html (last updated Sept. 27,

201 0). And most recently, the manager of the state crime lab in Cheney resigned

after it was discovered that he had fabricated arson investigation reports in "at least
five cases." Gene Johnson, State Patrol Says Crime Lab Manager Falsified Work,

KOMO NEWS (Apr. 16, 2013, 7:46AM), available at http://www.komonews.com/

news/local/State-crime-lab-manager-resigns-amid-investigation-203 2148 5l.html.

       The majority's argument that exempting laboratory reports from the

confrontation clause will actually reduce drylabbing is nonsensical. Majority at 35-

36. Nothing in Melendez-Diaz or any other case prevents forensic technicians from

operating in teams or jointly analyzing samples, and nothing in the many recent

incidents of drylabbing supports the majority's hollow claim that teams of workers

are a natural check on the problem. Criminal defendants are entitled to more than

the majority's empty assurances of reliability; they are entitled to cross-examine the

witnesses who testify against them, including those witnesses whose testimony is

submitted in written form. Crawford, 541 U.S. at 61.

       The majority wrings its hands over the possibility that laboratory analysts

might miss trials "due to sickness, travel, inclement weather, or being called to

testify in another trial," majority at 35, but, of course, so might police officers or any

other eyewitnesses or expert witnesses. The majority's concern for scheduling

proves too much, and would subordinate all confrontation rights of Washington

citizens to the convenience of a trial calendar. Nor does the majority explain why


                                            -23-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




the mortality of laboratory analysts sets them apart from other witnesses.         Id.

Crawford plainly anticipates that witnesses may be unavailable, holding that the

testimonial statement of a witness who does not appear and is "unavailable to testify"

is inadmissible unless the defendant had "a prior opportunity for cross-examination."

Crawford, 541 U.S. at 53-54.

       This does not leave the State helpless, or make a medical examiner's lifespan

a "'statute of limitations for murder."' Melendez-Diaz, 557 U.S. at 335 (Kennedy,

J., dissenting) (quoting Carolyn Zabrycki, Comment, Toward a Definition of

"Testimonial": How Autopsy Reports Do Not Embody the Qualities ofa Testimonial

Statement, 96 CAL. L. REv. 1093, 1094, 1155 (2008).          Photographs and other

physical evidence-including fingerprints, tool marks, and samples of blood and

semen-are not testimonial, and any analyst can examine them if the original analyst

dies or is otherwise unavailable. Indeed as described below, although Raven was

not available to testify, Ham1ff testified to the cause of Boussiacos' s death based

almost entirely on nontestimonial photographs in her autopsy report. Photographing

routine field measurements also ensures this evidence survives the investigator-

just as photographing an officer's observations at the crime scene ensures this

testimony will survive him.

       Nor does the Sixth Amendment require the State to keep physical evidence it

would otherwise throw away. Washington State crime labs already store, control,

or reference samples for trial and for later retesting as a matter of course because of

the realities of appeal and postconviction challenge, and the utility of this evidence


                                            -24-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




for solving other crimes, including "cold cases." See generally RCW 43.43.753

(establishing a state bank for DNA samples); FORENSIC LABORATORY SERVS.

BUREAU, WASH. STATEPATROLFORENSIC SERVICES GUIDE (Jan. 2012), available at

http://www. wsp. wa.gov/forensics/docs/bureau/forensic_services_guide.pdf        (de-

scribing long-term storage methods for DNA and other physical evidence). Forensic

testing is neither as unique or uniquely reliable as the majority claims nor as

vulnerable as it fears.

        D. A Supervisor Is Not a "Witness" to a Test He or She Did Not Personally
           Conduct or Observe

        The majority and the State assert that even if the various reports offered

against Lui were testimonial, there was no error because he had an opportunity to

cross-examine Harruff and Pineda, both of whom were competent to testify about

the testing protocols in place at their respective workplaces.       Majority at 33

(characterizing Pineda as "an experienced supervisor" who "was well informed

about the procedures used"); see State's Suppl. Br. at 21; State's Suppl. Br.

Addressing Williams v. Illinois and Article I, Section 22 of the Washington

Constitution at 9 (characterizing these experts as "hands-on supervisors who were

intimately familiar with the relevant laboratory's procedures").        This line of

reasoning is foreclosed after Bullcoming, as there is simply no room to argue that a

supervisor who did not personally observe a test is a "witness" to the results of this

test.




                                            -25-
Stdte v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




       The majority insists that the problem in Bullcoming was that the defendant

"was denied effective cross-examination."           Majority at 34 (emphasis added).

Because Lui was able to "effectively" cross-examine Pineda and Harruff, the

majority asserts his confrontation right was satisfied. Not so. The problem in

Bullcoming was not with the effectiveness of the cross-examination; the problem was

that the analyst who testified about the results of a blood test was not a "witness"

under the plain language of the confrontation clause. 131 S. Ct. at 2710 (holding

that "[t]he accused's right is to be confronted with the analyst who made the

certification"). The majority's endorsement of the "effectiveness" of Lui's cross-

examination also runs directly counter to Crawford's rejection of extrinsic measures

of reliability as the benchmark for the confrontation right. See 541 U.S. at 67, 69.

       While the confrontation clause is concerned with the reliability of testimony,

it provides "a procedural rather than a substantive guarantee." Id. at 61. The only

way to satisfy a defendant's confrontation right is to allow him to cross-examine the

witness who offers testimony-not that witness' supervisor. In Bullcoming, the

Court gave no weight to the fact that the testifying analyst was a "knowledgeable

representative of the laboratory" who could "explain the lab's processes and the

details of the report." 131 S. Ct. at 2723 (Kennedy, J., dissenting). Instead, the

Court reiterated that "'it will not permit the testimonial statement of one witness to

enter into evidence through the in-court testimony of a second."' Id. at 2715

(quoting Melendez-Diaz, 557 U.S. at 334 (Kennedy, J., dissenting)).




                                            -26-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




       Just as in Bullcoming, the experts who testified against Lui were supervisors

who could testify about general testing procedures, but lacked even a limited

"personal ... connection to the scientific test at issue. " Id. at 2722 (Sotomayor, J.,

concurring). Their earnestness and the fact that they were "well informed about the

procedures used," majority at 33, are constitutionally irrelevant. It is clear from the

record that Harruff did not perform the autopsy and was not even in the building

when it was performed, 10 RP 1339, and Pineda testified that she did not observe or

participate in the testing at Reliagene and that she was not necessarily in Texas

during the testing at Cellmark, 12 RP at 1489, 1494-95, 1567. The analysts who

actually performed the autopsy, recorded the victim's body temperature, measured

blood for nicotine, and reported the results of DNA testing never took the stand, and

Lui never had the opportunity to cross-examine them about their educational

backgrounds, employment history, methods, or conclusions-the majority's

assurance about "effectiveness" notwithstanding.

       A police supervisor would never be allowed to testify to eyewitness

observations about a crime scene that were recorded by his subordinate, under the

guise of providing expert testimony, no matter how closely he reviewed the notes,

but that is precisely what the majority would allow here. See Davis, 547 U.S. at 826

(holding that the confrontation clause may not be "evaded by having a note-taking

policeman recite the ... testimony of the declarant" (emphasis omitted)). The only

difference in Lui's case is the presence of a science degree and a lab coat, and after

Melendez-Diaz and Bullcoming, these trappings have no constitutional significance.


                                            -27-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




Lui was denied his right to confront the witnesses who had firsthand knowledge of

the testimonial evidence the State offered against him.

       E. Expert Testimony about Reports Prepared by a Nontestifying Witness
          Violates the Confrontation Clause

       The State also argues that Lui's confrontation right was not violated because

Harruff and Pineda did not offer any reports into evidence but only relied on them

as the basis for their expert opinions. We stayed our decision in hopes that Williams

would resolve the question of expert testimony about reports prepared by

nontestifying witnesses. Unfortunately, it did not; indeed, Williams left the area

muddier than before. Nor does the majority resolve this question. We should

confront it and recognize that expert testimony violates a defendant's confrontation

right when the expert acts as a "conduit" by reading the substance of a testimonial

report into evidence.

       In Lui's case, both the trial court and the Court of Appeals held that his

confrontation rights were not violated by expert testimony because the underlying

reports were offered as a basis for expert opinion and not for their truth. State v. Lui,

 153 Wn. App. 304, 322-25, 221 P.3d 948 (2009); 10 RP at 1368. The Williams

plurality advanced this theory as an alternative to its narrowed primary purpose test,

.opining that "[ oJut-of-court statements that are related by the expert solely for the

purpose of explaining the assumptions on which that opinion rests are not offered

for their truth and thus fall outside the scope of the Confrontation Clause." Williams,

 132 S. Ct. at 2228. As noted, five justices have repeatedly rejected this theory.



                                            -28-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




       Justice Thomas protested that there is "no meaningful distinction between

disclosing an out-of-court statement so that the factfinder may evaluate the expert's

opinion and disclosing that statement for its truth."        !d. at 2257 (Thomas, J.,
concurring in the judgment). The four dissenters agreed that the DNA report was

offered for its truth, reasoning that "to determine the validity of the witness's

conclusion, the factfinder must assess the truth of the out-of-court statement on

which it relies." !d. at 2268-69 (Kagan, J., dissenting). The Washington Court of

Appeals agreed, concluding that whether a statement falls under a hearsay exception

"does not save it from confrontation clause analysis" if it is also offered for its truth.

State v. Fraser, 170 Wn. App. 13, 23, 282 P.3d 152 (2012).

       In Lui's case, the State did not offer the lab results to impeach his credibility

or rebut his testimony. Instead, just as in Williams, the only conceivable purpose for

expert testimony about DNA testing, temperature readings, autopsy findings, and

toxicology results was to introduce these results for their truth. See DAVID H. KAYE,

DAVID E. BERNSTEIN, & JENNIFER L. MNOOKIN, THE NEW WIGMORE: A TREATISE ON

EVIDENCE: EXPERT EVIDENCE§ 4.10.1, at 196 (2d ed. 2011) (noting that "[t]o use

the inadmissible information in evaluating the expert's testimony, the jury must

make a preliminary judgment about whether this information is true").

       The fiction that these results could "assist the jury in deciding what weight to

give" the expert's opinion is baffling. Lui, 153 Wn. App. at 323 n.19. Before the

jury could give testimony about these test results any weight it had to first determine

whether the underlying reports were true. And, it is unclear what else it could


                                            -29-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




conclude from reports stating that genetic material found at the crime scene matched

genetic material taken from the suspect, that no drugs were found in the victim's

system, and the temperature of the victim's body when she was found. Ex. 136, at

4; Ex. 168, at 10.

       Most courts to consider this question since Melendez-Diaz and Bullcoming

have rejected the categorical approach advanced by the Williams plurality and by the

State. Instead of concluding as a matter of law that expert testimony cannot violate

a defendant's confrontation right because it does not come in for its truth, these

courts ask whether the expert testified from personal knowledge and opinion or was

merely a "conduit" for the underlying testimonial report. See, e.g., State v. Gonzales,

2012-NMCA-034, ,-r 8, 274 P.3d 151, 153 (cautioning that without safeguards, Fed.

R. Evid. 703 would allow prosecutors to "use surrogate witnesses disguised as

experts in order to introduce evidence that otherwise would trigger the Sixth

Amendment's Confrontation Clause"); United States v. Pablo, 696 F.3d 1280, 1287-

89 (lOth Cir. 2012) (warning that expert testimony can be "little more than a

backdoor conduit for an otherwise inadmissible statement"); State v. Kennedy, 229

W.Va. 756, 773, 735 S.E.2d 905 (2012) (holding "to the extent that [a witness] is a

'mere conduit' for the opinions of the authoring pathologist, such testimony violates

the Confrontation Clause"). This "conduit" test respects that evidence rules like Fed.

R. Evid. 703 are not legal conclusions and have no claim to precedence over the

Sixth Amendment.




                                            -30-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




       The conduit test's distinction between permissible and impermissible expert

opinion testimony closely follows the rejection of other forms of surrogate testimony

in Davis, Melendez-Diaz, and Bullcoming. It also addresses the concern that a

bright-line rule permitting experts to read testimonial reports into evidence would

put the confrontation clause once again at the mercy of the evidence code. See, e.g.,

Williams, 132 S. Ct. at 2256 (Thomas, J., concurring in the judgment) ("I do not

think that rules of evidence should so easily trump a defendant's confrontation

right"); KAYE, BERNSTEIN & MNOOKIN, supra§ 4.10.1, at 196-97 (urging courts not

to "permit an end-nm around a constitutional prohibition" by accepting "[t]he

factually implausible, formal claim that experts' testimony is being introduced only

to help in the evaluation of the expert's conclusions, but not for its truth"). As this

court has previously held, ER 703 "'"was not designed to enable a witness to

summarize and reiterate all manner of inadmissible evidence.'"" State v. De Vries,

149 Wn.2d 842, 848 n.2, 72 P.3d 748 (2003) (quoting State v. Martinez, 78 Wn.

App. 870, 880, 899 P.2d 1302 (1995) (quoting 3 DAVID W. LOUISELL &

CHRISTOPHER B. MUELLER, FEDERAL EVIDENCE§ 389, at 663 (1979))).

       We should hold that ER 703 is not a per se exemption from the confrontation

clause for expert testimony and formally adopt the conduit test. Expert testimony

based on inadmissible testimony satisfies the defendant's confrontation right if the

expert testifies to his own opinion and conclusions, but not if he merely funnels the

testimony of a nontestifying witness into evidence.




                                            -31-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




       Applying the conduit test to the circumstances at hand, we should conclude

that Harruff' s testimony about temperature measurements taken at the scene by

Raven violated Lui's confrontation rights. Harruff did not take these measurements

or observe the test, and his recitation of Raven's figures did not reflect his personal

knowledge or opinion. 10 RP at 1354, 1369. While the majority correctly holds that

Harruff' s testimony about the results of the WSTL toxicology screen violated Lui's

confrontation right, majority at 38, we should explain why this is so. Harruffhad no

personal knowledge about the actual testing performed by the laboratory, or even

who performed the tests, and did not offer his professional opinion about the results.

10 RP at 1397-98. Harruff's role in introducing these results was that of "a well-

credentialed conduit for testimonial hearsay." United States v. Ramos-Gonzalez,

664 F.3d 1, 5 (1st Cir. 2011).

       While Pineda's testimony about the results of DNA testing also included her

expert opinion about what the results reported by Nasir and Vendetes meant, she

testified to the results of six tests which she did not perform or observe, and about

which she had no personal knowledge. 12 RP at 1484, 1489, 1494-95. Each of these

tests attested to the presence or absence of genetic information in a particular sample.

Ex. 136, at 4. Although the report was not admitted, it was shown to the jury, and

Pineda effectively read the results into evidence by her testimony, describing results

that were inextricably linked to her conclusions. 12 RP at 1517 ("we obtained a 10

locus profile"); id. ("We noted that [Lui] cannot be excluded as one of the major




                                            -32-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




DNA donors"); id. at 1519 ("because the peaks that [Lui] possesses, were also

detected in the shoelaces ... he cannot be excluded as a major donor").

       The confrontation clause requires testimony by at least one analyst who

personally performed or observed the test at issue, and the expert witness evidence

rule offers no exception. The confrontation clause cannot be evaded by substituting

"a note-taking policeman" for the declarant. Davis, 547 U.S. at 826. Transforming

the policeman into a DNA expert and the governing rule from ER 701 to ER 703

does not alter the constitutional equation. Although Pineda added her expertise to

the analysis, she also read the results to the jury and denied Lui his right to confront

the witnesses, analysts Nasir and Vendetes, who actually observed these tests and

testified to the results in their reports.

       Harruff s testimony about Raven's autopsy report and autopsy photo graphs

presents a different matter. As discussed above, photographs and other physical

evidence are not testimonial and an expert may refer to them without violating a

defendant's confrontation right. See State v. Roberts, 142 Wn.2d 471, 522, 14 P.3d

717 (2000) (permitting testimony from a blood splatter expert who reviewed only

documentary evidence of photographs and videotape and examined the victim's

clothing and chair).

       Harruffs testimony about the nature ofBoussiacos's injuries and the cause of

her death was based almost entirely upon photographs that the State entered into

evidence. 10 RP at 1375-97. Although Harruff testified to bruising of the neck

muscles and bruising under the scalp that were not apparent in the photographs, this


                                             -33-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




testimony constituted a tiny fraction of his overall testimony. I d. at 13 92. Moreover,

his testimony that it takes four minutes to die from strangulation came entirely from

his expertise and personal knowledge; it did not parrot Raven's report or even refer

to it. Id. at 1385, 1397.

       We should hold that Harruff's testimony about Boussiacos's injuries, the

cause of her death, and the condition of her body based upon autopsy photographs

was an appropriate exercise of his expert opinion and did not violate the

confrontation clause. See Commonwealth v. Avila, 454 Mass. 744,912 N.E.2d 1014,

1029 n.19 (2009) (holding that a medical examiner's opinion about the cause of a

wound is permissible if based on a photograph properly admitted into evidence, but

not if it recites findings in the autopsy report).

       F. The Confrontation Clause Is Not an Unbearable Burden

       Ultimately, the majority argues that we must deny defendants the right to

confront laboratory analysts because the burden it places on the State is too heavy,

apparently indignant that defendants granted this right by Melendez-Diaz have

actually exercised it. 4 Majority at 34-35. While the confrontation clause places a

burden upon the courts and prosecutors of Washington State, this is hardly a

persuasive argument for dispensing with one of the bedrock guaranties of our

criminal justice system.       The Sixth Amendment also guarantees to criminal


       4
        The majority's claim that the United States Supreme Court has not decided "the
confrontation clause status of forensic reports," cannot be squared with its complaint that
Melendez-Diaz is to blame for an increase in demand for laboratory analyst testimony.
Compare majority at 21, with majority at 34-35.

                                            -34-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




defendants the right to a speedy and public trial, to have facts (even "neutral" and

"scientific" facts) found by a jury, and to be appointed a competent lawyer at no

cost.   U.S. CONST. amend. VI.         Each of these guaranties has cost our State

incalculable money, time, and lost convictions, and the costs continue to mount. If

the majority is willing to exempt laboratory analysts from cross-examination to save

a little, why not strike confrontation entirely, or do away with jury trials and court-

appointed attorneys, and save much more?

        Notwithstanding the United States Supreme Court's admonition that the

confrontation clause, like the right to trial by jury and the privilege against self-

incrimination, "is binding, and we may not disregard it at our convenience,"

Melendez-Diaz, 557 U.S. at 325, this burden is not as heavy as the majority claims.

Indeed, we already live with all of the consequences the majority imagines, and have

for the four years since Melendez-Diaz settled the questions with which the majority

belatedly grapples. The sky has not fallen in this time, here or in any other state.

There is at least one practical reason for this: the United States Supreme Court has

now twice endorsed the constitutionality of notice-and-demand statutes exactly like

Washington's, which condition the defendant's confrontation right on the timely

filing of an objection to the State's offer of evidence. See id. at 326-27; Bullcoming,

131 S. Ct. at 2718; CrR 6.13(b). While CrR 6.13(b) does not excuse the State from

its obligations under the confrontation clause, it places the burden of requesting

analyst witnesses squarely where it belongs: on the criminal defendant.            See

Melendez-Diaz, 557 U.S. at 327 ("The defendant always has the burden of raising


                                            -35-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




his Confrontation Clause objection; notice-and-demand statutes simply govern the

time within which he must do so."); State v. Schroeder, 164 Wn. App. 164, 167-68,

262 P.3d 1237 (2011) (finding that the defendant waived his right to confrontation

on a piece of evidence by failing to file a timely objection).

       Finally, although the State has a strong interest in the efficient provision of

criminal justice, I cannot agree that confrontation runs entirely counter to this

interest.   The sheer number of reversals and new trials that attend each new

drylabbing scandal illustrate the cost of insulating laboratory analysts from cross-

examination. Requiring analysts to testify to their own qualifications and represent

their own work gives the State a strong incentive to weed out incompetent

technicians, and laboratories a strong incentive to develop programs and procedures

that thrive in "the crucible of cross-examination." Crawford, 541 U.S. at 61. While

it may be bitter, confrontation is good medicine for the criminal justice system, and

the integrity of the convictions it obtains. Washington prosecutors and courts are

more than able to shoulder the burden the Sixth Amendment demands.

       G. The Error Is Not Harmless
       Confrontation clause errors are subject to constitutional harmless-error

analysis. Jasper, 174 Wn.2d at 117 (citing Delaware v. VanArsdall, 475 U.S. 673,

684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)). This test is significantly more

stringent than that for violations of court rules and other nonconstitutional errors.

See State v. Robinson, 153 Wn.2d 689, 697, 107 P.3d 90 (2005) (citing State v.

 Templeton, 148 Wn.2d 193,220,59 P.3d 632 (2002)). Under the constitutional error


                                            -36-
5'tate v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




standard, prejudice is presumed and the State must show "beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained." Chapman

v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v.

Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980).
       The Court of Appeals accepted the State's argument that any confrontation

violation at Lui's trial was harmless, finding that if the State's experts funneled

testimonial evidence to the jury, "[t]here is no reasonable probability this evidence

contributed prejudicially to the verdict." Lui, 153 Wn. App. at 320 n.l5. Because

the State did not produce overwhelming untainted evidence of Lui's guilt, I disagree.

       The "overwhelming untainted evidence" test considers the untainted evidence

admitted at trial to determine "if it is so overwhelming that it necessarily leads to a

finding of guilt." State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002) (citing

State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)). This test "ensures that

a conviction will be reversed where there is any reasonable possibility that the use

of inadmissible evidence was necessary to reach a guilty verdict." !d.

       Although the State offered sufficient evidence of Lui's guilt to permit a

reasonable jury to convict him of murder, the untainted evidence was hardly

overwhelming.        This untainted evidence included Harruff s testimony that

Boussiacos was intentionally strangled, and testimony impeaching Lui's credibility.

Lui told investigators that the night Boussiacos disappeared he slept on the couch

and heard nothing, and that when he awoke between 7:00 and 8:00 a.m.,

Boussiacos's car was gone. Ex. 43, at 34. However, phone records show that Lui


                                             -37-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




called his sister at roughly 1:00 a.m. and left a message; when confronted with these

records, he gave an unlikely story that he had rolled over on his phone while

sleeping. !d. at 31-32; 7 RP at 809-10, 827. The jury also heard that the couple's

downstairs neighbors were awakened shortly after 3:00 a.m. by the sound of

someone walking around upstairs. 5 RP at 566, 583-84. During questioning, Lui

downplayed Boussiacos' s discovery of his infidelity, insisting that they had "put that

aside," despite his statements to friends and a 911 operator that the two had called

offthe wedding shortly before her disappearance. 14 RP at 1819-20; Ex. 43, at 25-

28.

       Lui's credibility was most damaged by his lie about Boussiacos' s ring. Police

did not find her engagement ring on her body or in a search of her purse, where

friends testified she kept it.     14 RP at 1703. Lui denied having the ring and

speculated that Boussiacos's mother had it or, alternatively, that Boussiacos had

been wearing it when she left for California. 10 RP at 1431; Ex. 169, at 50-51, 80.

At trial, the State established that Lui gave an identical ring to his current wife, who

woreituntilpolicetookitintoevidence. 12RPat 1609-22, 1628-29; 14RPat 1702-

08. Even Lui's lawyer acknowledged that he had lied about the ring, calling it a

"monumental mistake." 14 RP at 1866.
       While a jury certainly could have found that this cumulative untainted

evidence was probative of Lui's guilt, Washington courts have never found

confrontation clause errors harmless beyond a reasonable doubt under such

fragmentary and circumstantial evidence. See State v. Flores, 164 Wn.2d 1, 18-20,


                                            -38-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




186 P.3d 1038 (2008) (finding harmless error where the State presented untainted

testimony, audio and video recordings, physical evidence, and defendant

admissions); State v. Davis, 154 Wn.2d 291, 304-05, 111 P.3d 844 (2005) (State

presented untainted testimony by victim and officers and photographs of victim

injuries); State v. Damon, 144 Wn.2d 686, 693, 25 P.3d 418 (2001) (defendant did

not contest that he had committed all the criminal acts charged); State v. Powell, 126

Wn.2d 244, 268, 893 P.2d 615 (1995) (untainted eyewitness testimony ofrepeated

episodes of past abuse, including prior attempts at strangulation); State v. Whelchel,

115 Wn.2d 708, 728-29, 801 P.2d 948 (1990) (untainted eyewitness testimony and

defendant confession); Guloy, 104 Wn.2d at 420-21 (undisputed evidence that

defendant engaged in criminal conspiracy to murder both victims); State v. Hopkins,

134 Wn. App. 780, 792, 142 P.3d 1104 (2006) (untainted victim testimony,

eyewitness testimony, and defendant confession); State v. Saunders, 120 Wn. App.

800, 812-13, 86 P.3d 1194 (2004) (untainted defendant admissions); State v.

Thomas, 91 Wn. App. 195, 203, 955 P.2d 420 (1998) (untainted eyewitness

testimony and physical evidence); State v. Folkerts, 43 Wn. App. 67, 73-75, 715

P.2d 157 (1986) (untainted eyewitness testimony, physical evidence, and defendant

admissions); State v. Roberts, 31 Wn. App. 375, 380, 642 P.2d 762 (1982) (untainted

eyewitness testimony). The untainted State's evidence against Lui was not in the

same class.

       Washington courts have consistently refused to find harmless error in cases

like Lui's, where the untainted evidence was incomplete and suggested but did not


                                            -39-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




overwhelmingly establish the State's theory. See State v. Grenning, 169 Wn.2d 47,

59-60,234 P.3d 169 (2010); State v. Maupin, 128 Wn.2d 918, 928-30, 913 P.2d 808

(1996); State v. Easter, 130 Wn.2d 228, 242-43, 922 P.2d 1285 (1996); State v. St.

Pierre, 111 Wn.2d 105, 119-20, 759 P.2d 383 (1988); Stephens, 93 Wn.2d at 190-

91; State v. Romero, 113 Wn. App. 779, 794-95, 54 P.3d 1255 (2002); State v.

McDaniel, 83 Wn. App. 179, 187-88,920 P.2d 1218 (1996); State v. Vargas, 25 Wn.

App. 809, 815-16, 610 P.2d 1 (1980).

       Moreover, the tainted testimony in this case was substantial and crucial to the

State's theory. The State argues that the DNA results obtained by Orchid and

Reliagene were inconclusive and that omitting Pineda's testimony would not have

affected the outcome. It is true that the presence of Lui's DNA on the victim's

shoelaces was not conclusive because the two shared a home. The Y-STR testing

used in this case also could not exclude the possibility that Lui's son had touched

her shoelaces. 12 RP at 1517-19. However, the DNA sample from the victim's

shoelaces was the only piece ofevidence linking Lui to the State's theory that he had

dressed her after death and carried her body to the trunk of her car. See 14 RP at

1832-35. Jodi Sass, a forensic scientist in the DNA unit of the Washington State

Patrol Crime Laboratory, testified that she had obtained a trace male genetic

component from the oddly tied shoelaces found on Boussiacos's tennis shoes, but

she was not able to generate a DNA profile from the sample. 9 RP at 1228-33.

Without Pineda's testimony about the results of these tests, the State would have




                                            -40-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




presented photographs of oddly tied shoelaces but no evidence that Lui tied them

after her death.

       Because Lui and the victim had a consensual sexual relationship, the State

contends that Pineda's testimony about trace amounts of Lui's semen in the vaginal

swab was also not decisive and was not relevant to a material element of the crime.

However, Pineda's testimony undercut Lui's claim that he and the victim had not

had intercourse for two weeks before her disappearance. 14 RP at 1828-29; Ex. 43,

at 21-23. The State highlighted this inconsistency to the jury, not just to undercut

Lui's credibility, but as a possible motive for the killing. 14 RP at 1828-30.

       The State argues that Harruff s tainted testimony about the time of

Boussiacos's death, based on Raven's temperature readings, was equally supportive

of Lui's defense that she was killed by a third person after leaving for the airport

some time after the night of February 2. 10 RP at 1355-56. While the State was

required to prove only that Boussiacos died sometime between February 2, when she

disappeared, and February 8, when her body was found, Raven's temperature

readings supported the State's theory that Lui murdered her the night she

disappeared. See 14 RP at 1809.

       Finally, the State contends that Harruff s testimony about the lack of nicotine

in Boussiacos's blood was irrelevant since it did nothing more than undercut idle

conjecture by Lui. 10 RP at 1430. Whether the victim was a smoker was not a

material element of the crime charged, but the testimony hurt Lui's credibility and




                                            -41-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




went to the State's larger narrative that Lui had lied to investigators from the

beginning.

       The tainted evidence, particularly the DNA report, was crucial to the State's

case. Pineda's testimony about the results of this testing linked Lui to the victim's

shoelaces and undercut his story that the two had not had sexual relations in weeks.

Harruffs testimony about the results of the WSTL toxicology screen made Lui's

initial story look less like speculation and more like an intentional lie, and his

testimony about the time of death lent support to the State's theory. The most the

State can show is that it introduced sufficient untainted evidence to permit a

reasonable jury to find Lui guilty. This showing does not satisfy the constitutional

harmless error test and we should conclude that the errors were not harmless beyond

a reasonable doubt.

                                     CONCLUSION

       Consistent with United States Supreme Court precedent, I would recognize

that the reports at issue in this case are testimonial and Lui was denied his Sixth

Amendment right to confront the witnesses against him. The majority's newfound

interpretation of the Sixth Amendment is based on the very rationale a majority of

the United States Supreme Court has rejected in cases from Crawford to Williams.

       Because the four reports at issue are testimonial, Lui was entitled to cross-

examine the witnesses who prepared them and not settle with questioning well-

credentialed conduits about their testimonial evidence.




                                            -42-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




       The majority's fear that respecting the constitutional rights of Lui and

similarly situated defendants will unduly burden the criminal justice system is

exaggerated. Moreover, it provides no justification for charting an entirely new

course in conflict with established precedent. I would reverse the Court of Appeals

and remand this matter for a new trial. Accordingly, I respectfully dissent.




                                            -43-
State v. Lui (Sione P.), 84045-8 (Stephens, J. Dissent)




                                            -44-
