 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

In the Matter of the Personal                        No. 72685-4-1
Restraint Petition of




BRANDON JOSEPH EARL,                                 UNPUBLISHED OPINION

                      Petitioner.                    FILED: April 4, 2016             ^


       Verellen, J. — A forensic scientist's disciplinary records support a motten 0o
                                                                                           -3>J!
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fer new trial only ifthe newly discovered evidence would probably change the_             ^^C

outcome of the trial. The State's failure to provide such records supports a VP           g£

Brady1 violation only if the records are material.                                        ^^
       Brandon Earl seeks a new trial for his first degree child rape conviction,

relying upon newly discovered disciplinary records of the scientist who conducted

deoxyribonucleic acid (DNA) testing of the victim's underwear. Earl contends the

records destroy the scientist's credibility and undermine the foundation for

admitting the DNA results. Earl also contends the State's nondisclosure of the

scientist's disciplinary records violated Brady. The trial court transferred Earl's

motion for new trial for consideration as a personal restraint petition.

       But Earl fails to connect the scientist's mistakes to the reliability of the

DNA results in this case. There is no showing that the scientist mishandled,



       1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).
No. 72685-4-1/2



contaminated, or failed to properly test the DNA evidence. The scientist's

deficiencies identified in the disciplinary records are not exculpatory and do not

destroy his credibility.

       We deny Earl's personal restraint petition.

                                       FACTS


       On Christmas Eve 2010, Earl returned home from work to a family party.2

He went upstairs to his bedroom to rest.3 Several children were in his bedroom

watching cartoons.4 Earl gave the children "raspberries," i.e., blew on their

stomachs, and sent them downstairs.5 Three-year-old M.F. returned to Earl's

bedroom.6

       M.F.'s mother went upstairs to look for M.F. When she opened Earl's

bedroom door, she "heard a bunch of commotion."7 The mother saw Earl and

M.F. next to each other on his bed.8 Earl and M.F. separated quickly when the

mother opened the door:

       I look around, and I can see Brandon coming from the left side of
       the bed, kind of readjusting, sitting up to the right side of the bed.
       The covers were over his bottom half, fully dressed. [M.F.] is more
       towards the foot of the bed on the left side.[9]




       2 Pet'r'sBr., app. 2, at 4.
       3 id,
       4 jdk at 25-26.
       5 Id, at 26, 29.
       6 id at 29.
       7 Report of Proceedings (RP) (Jan. 30, 2013) at 279.
       8Jd
       9 Id.
No. 72685-4-1/3


The mother carried M.F. out of the room. While walking downstairs, M.F. said

Earl "told me not to tell."10

       The mother took M.F. into a bathroom and asked her what happened, but

M.F. would not say.11 She then took M.F. to sit next to M.F.'s grandmother.12

M.F. told the grandmother, "He licked my pee-pee."13 The grandmother asked

who did, and M.F. answered, "Brandon."14 When the mother confronted Earl

later that night, he told her he "was blowing raspberries" or "butterflies" on M.F.'s

belly.15

       That night, M.F. told her mother before bedtime that Earl "made a mess

down there."16 M.F. changed into her pajamas, and the mother put M.F.'s

clothing that she wore that night in a laundry hamper.17
           Several days later, the mother took M.F. to a hospital for an examination.1*
The mother brought "a dress, a pair of tights, and two pairs of underwear" to the

hospital.19 The nurse examined M.F. and collected the clothes.20 M.F. did not


             Id. at 284.

           1id at 284-85.
           2 id at 286.
           3 id at 360.
           4 id at 362.
           5 id at 292-93, 365.
           6 id at 296.
            7id at 295-96, 337-38; Interview of April Mathis (Dec. 14, 2012) at 72.
            8(RP)(Jan. 30, 2013) at 394.
            9id at 399. The record does not explain why the hamper contained only
two pa irs of underwear for the four days from Christmas Eve until the day the
mother collected the clothes from the hamper.
           20 Id. at 399.
No. 72685-4-1/4



say anything to the forensic nurse about the previous night.21

       Earl admitted to police that he was alone with M.F. on his bed, that he

placed his mouth on her lower torso when "blowing raspberries," and his mouth

was "accidentally" on her vagina or his face was in her private area for "thirty

seconds."22 Earl stated that while "blowing raspberries" involved contact with

M.F.'s skin on her stomach, the contact with M.F.'s vaginal area was over her

clothing.23

       The State charged Earl with first degree child rape.

                                Forensic DNA Testing

       M.F.'s tights and two pairs of underwear from the hamper were tested for

DNA.24 Forensic scientist Kristina Hoffman initially tested the items.25 Hoffman

did not notice anything "abnormal" or "compromised."26 On one pair of

underwear, amylase was found on the inside, but not the outside, of the crotch

area.27 Amylase is an enzyme found in saliva and in lower amounts in other

bodily fluids.28 Both pairs of underwear had "yellow staining" on the crotch area




       21 id at 397.
       22 Pet'r's Br., app. 2, at 27-28.
       23 id at 23.
       24 RP (Feb. 1, 2013) at 657, 660.
       25 id at 656-57.
       26 id at 658.
       27 id at 672-73, 678-79.
       28 Id. at 667.
No. 72685-4-1/5



and had a "urine-like odor."29 Amylase was not found on the outside crotch area

of the tights.30

       On the underwear with amylase on the inside of the crotch, a "small

amount" of male DNA, "seven nanograms," was found in the crotch area.31

Hoffman did not determine how many male DNA profiles were on the

underwear.32 Hoffman testified that seven nanograms of DNA is more consistent

with a "body fluid" deposit than a "contact touch" deposit.33 Both male and

female DNA were found on the outside crotch area of the tights, with a "mixture

of at least four contributors."34 Hoffman testified that 1 in 29 persons, including

Earl and M.F., were possible contributors.35 Due to the large amount of female

DNA on the underwear, detecting the male component with conventional

(autosomal) DNA testing was not possible.36

       In October 2011, Hoffman sent an interior sample of the underwear that

had amylase to another lab for Y-STR haplotype testing.37 Hoffman testified that

the packaging of Earl's and M.F.'s reference samples was an "acceptable

method" and did not risk contamination.38


       29 id at 664, 671.
       30 id at 672-73, 678-79.
       31 id at 682-83, 694, 748.
       32 id at 758.
       33 id at 695-96.
       34 id at 686, 725-26.
       35 id at 686, 688, 726.
       36 id at 682, 759.
       37 id at 683, 709.
        38 Id. at 686, 705.
No. 72685-4-1/6


      When forensic scientist Michael Lin received the samples, he did not

observe "any potential break or compromise in the packaging."39 In November

2011, Lin performed the Y-STR testing on the underwear. Y-STR testing isolates

male DNA by focusing solely on the Y chromosome.40 All men in the same

paternal lineage share the same DNA profile.41 Y-STR testing allows a forensic

scientist to determine whether a known source and all of his paternal relatives

can be excluded as possible contributors to an unknown DNA sample.42

       M.F.'s underwear disclosed a Y chromosome DNA profile from "one

individual" consistent with Earl's Y chromosome DNA profile.43 Lin estimated the

frequency of a particular profile found in the database using the "Counting

Method."44 This method compares the profile to a database maintained by the

National Center for Forensic Sciences and determines the frequency of the

profile found in the database.45 Lin calculated the probability that a random

person would exhibit the same profile as Earl's at less than 1 in 2.800.46 This
estimate was "highly conservative" due to the database's limited size.47 As the




       39 id at 775.
     40 John M. Butler, Forensic DNA Typing: Biology & Technology Behind
STR Markers 120 (2001).
       41 id
       42 State v. Bander, 150 Wn. App. 690, 700, 208 P.3d 1242 (2009).
       43 RP (Feb. 1, 2013) at 781, 795; RP (Feb. 4, 2013) at 838.
       44RP(Feb. 4, 2013) at 819.
       45 RP (Feb. 4, 2013) at 820, 839.
       46 RP (Feb. 1, 2013) at 796; RP (Feb. 4, 2013) at 845.
       47 RP (Feb. 4, 2013) at 842, 845.
No. 72685-4-1/7


database grows, it provides a more specific calculation of the frequency of any

particular profile.48

       The database calculates a frequency by applying a 95 percent confidence

interval.49 Stated differently, the calculated profile would be within that range 95

percent of the time and would fall outside of that range 5 percent of the time.50

More profiles were added to the database from the time Lin initially tested the

underwear and the trial.51 As of January 2013, Lin calculated the probability that

a random person would exhibit the same profile as Earl's at less than 1 in

4,400.52 During trial, the database had updated again, and Lin calculated the

probability that a random person would exhibit the same profile as Earl's at less

than 1 in 5,200.53

       A jury convicted Earl of first degree child rape. He appealed, challenging

the trial court's decision to exclude evidence that the mother and grandmother

were predisposed to assume abuse occurred and alleging prosecutorial

misconduct in closing argument. This court affirmed his conviction.




       48 id at 841; see also Justice Ming W. Chin, Michael Chamberlain, Amy
Rojas, Lance Gima, Forensic DNA Evidence: Science and the Law § 7:1
(updated electronically April 2015) ("Because this estimate is dependent on the
size of the database, the frequency estimate will change with the sample size of
the database and the number of observances with each search.").
       49RP(Feb. 4, 2013) at 842.
       50 id at 824.
       51 id at 849.
       52 id at 848, 874-75.
       53 id at 847-49, 902.
No. 72685-4-1/8


                                 Motion for New Trial


       One year after his conviction and during the pendency of his direct appeal,

Earl filed a motion for new trial. Earl attached Lin's disciplinary records.

       Lin was hired to work as a forensic scientist in February 2008. He was in

training status until December 2009. Lin began performing supervised casework

in January 2010. Lin completed the Y-STR testing in Earl's case in November

2011. In March 2013, Lin was removed from active case work pending

completion of a work improvement plan. Three months later, Lin resigned.54

       The trial court transferred Earl's motion for consideration as a personal

restraint petition.

                                      ANALYSIS


       Earl contends Lin's recently disclosed disciplinary records warrant a new

trial under either the newly discovered evidence standard or the Brady materiality

standard. We disagree.

       Newly discovered evidence is grounds for relief in a personal restraint

petition if those facts "in the interest of justice" require the conviction's vacation.55

When raised as a ground for relief, "'newly discovered evidence' is subject to the

same standards that apply to a motion for a new trial."56 A party seeking a new

trial based upon this ground must demonstrate the evidence:


       54 In his motion for new trial, Earl asserts that several facts identified in the
opinion deciding his direct appeal are inaccurate. Misstatements or
overstatements of any nature are a serious concern. For this personal restraint
petition, we do not rely upon any misstatements identified by Earl.
       55 RAP 16.4(c)(3).
       56 In re Pers. Restraint of Copland, 176 Wn. App. 432, 450, 309 P.3d 626
(2013).

                                            8
No. 72685-4-1/9


"'(1) will probably change the result of the trial; (2) was discovered after the trial;

(3) could not have been discovered before trial by the exercise of due diligence;

(4) is material; and (5) is not merely cumulative or impeaching."57 The absence

of any one factor is grounds for the denial of a new trial.58

       To establish a Brady violation, a defendant must establish three factors:

the evidence "'must be favorable'" to the defense, either because it is exculpatory

or impeaching, the evidence "'must have been suppressed by the State, either

willfully or inadvertently,'" and the evidence "'must be "material."'59 Evidence is

material under Brady if the State's "'evidentiary suppression undermines

confidence in the outcome of the trial.'"60

       Earl fails to establish either that evidence of Lin's general ineptitude would

probably change the outcome of the trial or is material under Brady.

       The Supreme Court's recent decision in State v. Davila is instructive.61

There, the defendant was charged with felony murder after he allegedly killed a

man with a baseball bat. Forensic scientist Denise Olson tested the bat for DNA.

Olson's testing revealed the presence of Davila's DNA on the bat. At trial, the

State did not call Olson to testify about her testing of the bat. Instead, the State



       57 State v. Mullen, 171 Wn.2d 881, 905-06, 259 P.3d 158 (2011) (quoting
State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004(1996)).
       58 id at 906.
       59 State v. Davila, 184 Wn.2d 55, 69, 357 P.3d 636 (2015) (quoting
Strickler v. Greene, 727 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L Ed. 2d 286
(1999)).
       60 id at 73 (internal quotation marks omitted) (quoting Kvles v. Whitley,
514 U.S. 419, 434, 115 Sup. Ct. 1555, 131 L. Ed. 2d 490 (1995)).
       61 184 Wn.2d 55, 357 P.3d 636 (2015).
No. 72685-4-1/10



called her supervisor Lorraine Heath to testify about Heath's retesting of the bat.

Heath's retesting of the evidence "confirmed Olson's results."62 Davila was

convicted of felony murder.

       Before sentencing, the defense learned Olson had been fired "after

receiving poor evaluations for roughly five years."63 The defense also learned

the crime lab audited Olson's work during the year she tested items in Davila's

case.64 This audit "revealed errors in the vast majority of Olson's cases" and

"resulted in 'Brady letters' being sent to eleven prosecuting attorneys" notifying

them of her "problems" and her "faulty results."65

       The defendant sought a new trial, alleging a Brady violation. The trial

court denied the motion for new trial, concluding "the defense failed to

meaningfully connect Olson's ineptitude with the evidence used to convict

Davila."66 The defense "failed to develop facts showing that Olson's ineptitude

and termination were material in this case."67 Absent some evidence of potential

contamination in Davila's case due to Olson's incompetence, the Davila court

concluded the defense failed to show Brady materiality.68

       Earl's theory is that Lin's general ineptitude, as revealed in the disciplinary

records, calls into question the results of the DNA testing that Lin performed in


       62
            id. at 59.
       63
            id at 61.
       64
            id
       65
            id
       66
            id at 78.
       67
            Id,
       68
            id at 81-82.

                                          10
No. 72685-4-1/11



this case. But Earl does not connect Lin's ineptitude with the results of the

testing in this case.

       Several of the records reveal initial performance problems and a resulting

improvement plan implemented when Lin was still in training status in June 2009.

This occurred several years before Lin's testing in Earl's case. For example, Lin

missed deadlines, he inefficiently used expensive reagents, he used a pipette to

mix sperm samples in a way that may have used up excessive amounts of a low-

level sample, and he used a second slide in a test when it was not clear a

second slide was required, which potentially wasted portions of the sample.69 In

December 2009, Lin successfully completed an improvement plan designed to

address these concerns.70

       The April 27, 2010 discipline involved the potential for contamination of

evidence in another case.7^ For quality control in the use of paper that detects

the presence of amylase, the scientists use a sample of their own saliva on a

separate piece of paper to confirm the paper is working properly before applying

another piece of that paper to screen evidence.72 The crime lab also screens

each test for any contamination of evidence with its lab workers' DNA.73 There

was no showing of any actual contamination with Lin's saliva in the April 27, 2010

screening or any other evidence at any other time. Lin acknowledged on cross-



       69Resp't's Br., app. A-1.
       70 Id, app. C-1.C-2.
       71 id, app. D-1.
       72 Id,, app. 2-4, H 8.
       73
            id, app. 2-2, H 4.

                                         11
No. 72685-4-1/12



examination that his test results revealed the presence of other scientists' DNA in

two incidents.74 If the April 27, 2010 disciplinary record had been made available

before trial, the defense could have impeached Lin with evidence of this potential

for contamination with Lin's saliva in the April 2010 incident. But no evidence

supports that Lin has ever contaminated any evidence with reference samples or

with his DNA.75 Nor is there evidence of any repeated incidents involving

potential or actual contamination of DNA samples.

       Earl's theory of contamination is hypothetical and speculative. Before Lin

tested M.F.'s underwear for male DNA, another scientist had determined that

male DNA was present on the inside crotch area of M.F.'s underwear. That

scientist extracted the male DNA from that pair of underwear. Lin's testing

revealed a single male DNA profile. If the original DNA extracted from the

underwear had been some other male's DNA, and Lin had contaminated that

DNA sample with Earl's reference sample, then the testing would have revealed

at least two male profiles present on the underwear.

      Absent any evidence that Lin had ever contaminated evidence with

reference samples, or that he contaminated the DNA extracted from M.F.'s

underwear here, Earl fails to "meaningfully connect" Lin's ineptitude with the

evidence used to convict him.76 No evidence supports that Lin's ineptitude

tainted the evidence or test results in this case. Nor is there any evidence that

Lin forged lab results, or failed to properly use the machines that measure and

       74RP(Feb. 4, 2013) at 852.
       75 Resp't's Br., app. 2-3,1J 5.
       76 Davila, 184 Wn.2d at 78.

                                         12
No. 72685-4-1/13



analyze Y-STR samples. Similarly, the disciplinary records do not call into

question the chain of custody or foundation for the DNA test results.77

       The remaining disciplinary records supporting Earl's motion for new trial

criticize Lin's testimony in this case.78 Such criticism does not exculpate Earl.

Heath criticized Lin because he failed to present as compelling a case against

Earl as the evidence warranted and "significantly understate^] the significance of

the lab results."79 For example, (1) Lin "tended to equivocate" and gave "unclear"

and "unqualified answers," (2) Lin "often understated his training and experience

and generally gave a poor, unconfident, unprepared impression to the jury and

the judge," (3) Lin "gave the impression of being unfamiliar" with the case file,

(4) Lin gave "the impression that contamination was more likely than it was," and

(5) Lin failed to articulate that the amount of male DNA found on the underwear

was inconsistent with a touch sample.80

       Earl makes no showing that a reference hearing is warranted. He

suggested the potential for a reference hearing to the trial court to "probably bring

in the people that authored those documents."81 But Earl "never offered any fact

or called any witness who could have supported his theory" that Lin mishandled




       77 Earl relies upon State v. Roche, 114 Wn. App. 424, 59 P.3d 682 (2002),
but Roche is distinguishable. No evidence here suggests Lin stole or altered test
samples, lied to his supervisors or fabricated test results, compromised the DNA
results in this case by his conduct, or used drugs while testing.
       78 Resp't's Br., apps. F, G, I, J, K.
       79 Jd, app. 2-4, TT11.
       80id, app. G; app. 2-4,H11.
       81 RP(Aug. 6, 2014) at 7.

                                           13
No. 72685-4-1/14


or contaminated the evidence.82 Earl provides no evidence that links Lin's

ineptitude to the evidence in this case.

       In context, the newly discovered evidence reveals that Lin did not work as

quickly or efficiently as desired. In cases not involving Earl, he wasted expensive

supplies and used techniques that could have wasted a limited sample. On one

occasion in 2010, Lin risked contamination of evidence in another case with his

own saliva sample. And Lin struggled to be a strong expert witness for the State.

       But Earl fails to demonstrate that Lin's ineptitude implicates the validity of

the DNA results in this case. Those results establish that there was a single

male profile for the male DNA found on the inside crotch area of M.F.'s

underwear containing amylase. Earl told police that his face "accidentally"

touched M.F.'s vaginal area over her clothes.83 But Hoffman found the amylase

on the inside crotch area of M.F.'s underwear, not on the outside of the

underwear or on the tights M.F. was wearing. The presence of amylase is

consistent with the presence of Earl's saliva only on the inside of M.F.'s

underwear and corroborates M.F.'s statement that Earl "licked [her] pee-pee."84

Earl admitted his face or his mouth contacted M.F.'s private area for "thirty

seconds."85

       We acknowledge that the Y-STR evidence was significant, corroborating

that Earl had direct contact with M.F. But the newly discovered evidence does


       82 Davila, 184 Wn.2d at 79.
       83 Pet'r's Br., app. 2, at 27-28.
       84RP(Jan. 30, 2013) at 360.
       85 Pet'r's Br., app. 2, at 28.

                                           14
No. 72685-4-1/15


not link Lin's ineptitude with the DNA test results. Under the Brady materiality

standard, Earl does not establish grounds for relief. Earl fails to develop any

facts, apart from speculation, supporting his theory that there is a reasonable

probability of contamination in this case due to Lin's misconduct. For the same

reasons, we conclude the newly discovered evidence would not probably change

the result of the trial.

        Therefore, we deny Earl's personal restraint petition.




WE CONCUR:




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                                          15
