                                                                        FILED 

                                                                    NOVEMBER 18,2014 

                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31639-4-111
                       Respondent,            )
                                              )
       v.                                     )
                                              )
DENISE L. JONES,                              )         UNPUPLISHED OPINION
                                              )
                       Appellant.             )

       FEARING, 1. -    Denise Jones appeals her possession of methamphetamine

conviction, arguing the trial court violated her constitutional right to confront witnesses

against her when it permitted an expert witness to testify about the results of a drug test

he did not conduct. We believe State v. Lui, 179 Wn.2d 457,315 P.3d 493, cert. denied,

134 S. Ct. 2842 (2014) controls and hold that Jones' constitutional rights were not

violated. An expert may rely on technical data prepared by others so long as the expert

reached his own conclusion, as he did here.

                                          FACTS

       On July 19,2011, law enforcement went to Denise Jones' residence to conduct a

welfare check. When they arrived, they knocked on the door and, after a few seconds,

Jones answered. Jones opened the door, stepped outside, and shut the door behind her.

Despite the closed door, Deputy Sheriff Mark Smoldt smelled burnt marijuana wafting
No. 31639-4-III
State v. Jones


from Jones' residence. Deputy Smoldt confronted Jones about the smell and asked if she

had marijuana in the residence. Jones admitted to the presence of marijuana but added

that she possessed a medical marijuana license authorizing her use. She asked Smoldt if

he would like to see the authorization. Smoldt accepted her offer.

      Denise Jones returned inside her home and shut the front door. She returned with

a gallon sized zip-lock bag, in which lay several folded documents, and she reopened the

door. As she pulled out the documents in search for her marijuana license, two small zip-

lock bags fell to the ground. Deputy Mark Smoldt retrieved the bags and espied a

substance inside the bags that appeared to be methamphetamine. Jones blurted, "[t]hose

aren't mine." Report of Proceedings (RP) at 52. Smoldt seized the bags and their

substances.

      Deputy Mark Smoldt forwarded the seized substances to Washington State Patrol

(WSP) Forensic Scientist Jason Stenzel, who tested the substances using a

microcrystalline reagent and Fourier Transform Infrared Spectroscopy (FTIR). The

reagent, depending on the substance tested, creates a crystalline structure. Under the

microscope, Stenzel compared the colors and shapes of the crystals to those produced by

the reagent when combined with a known sample of methamphetamine. The FTIR

bombarded the substance Smoldt seized with different wavelengths of infrared light.

Based on the movement of those molecules when hit with light, the FTIR machine

produced a graph. Stenzel analyzed the color and shape of the crystals and the graph the

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No. 31639-4-III
State v. Jones


FTIR machine produced to conclude the substances were methamphetamine

hydrochloride.

                                      PROCEDURE

       On September 8, 2011, the State charged Denise Jones with possessing

methamphetamine. Denise Jones' initial trial date was December 12, 2011. Because of

repeated continuances, trial did not begin until April 8, 2013. In the interim, Forensic

Scientist Jason Stenzel moved to South Dakota. In lieu of Stenzel's testimony, the State

called forensic scientist and peer reviewer Trevor Allen to testifY. Jones objected to

Allen's testimony because he did not conduct the test. Allen, however, peer reviewed

Stenzel's work, reviewed the data from the microcrystalline test and FTIR machine and,

based on the raw data, formed an independent opinion. Based on Allen's independent

assessment, the trial court admitted Allen's testimony.

       During his trial testimony, Trevor Allen admitted he did not perform the original

tests. He also testified he was qualified as an expert and was the technical peer reviewer

who examined the analytical data, the notes, and the reports from the original tester.

Allen described the tests conducted on the substances and testified that he examined the

data that resulted from those tests. Based on the data, Allen testified that he formed an

independent opinion about the identity of the tested material. Allen opined that the

substances were methamphetamine.




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No. 31639-4-III
State v. Jones


       A jury convicted Denise Jones of possession of a controlled substance,

methamphetamine.

                                   LA W AND ANALYSIS

       Denise Jones   conte~ds   the trial court violated her constitutional right to confront

witnesses against her when it permitted an expert witness to testify about the results of a

drug test conducted by another. But as Jones admits, our Supreme Court reached the

opposite conclusion in State v. Lui, 179 Wn.2d 457,315 PJd 493, cert. denied, 134 S. Ct.

2842 (2014). Following Lui, this court must affirm her conviction.

       The Sixth Amendment to the United States Constitution guarantees a defendant

the right to confront witnesses against him or her. U.S. CONST. amend. VI. The

Fourteenth Amendment renders the confrontation clause binding on the states. Pointer v.

Texas, 380 U.S. 400, 403,85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Washington's

Constitution also grants an accused, in a criminal prosecution, "the right to meet the

witnesses against him face to face." CONST. art. 1, § 22. Washington protections are

coextensive with their federal counterpart. Lui, 179 Wn.2d at 468-69.

       Since 2004, when the Supreme Court decided Crawford v. Washington, 541 U.S.

36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the case law defining Sixth Amendment

protections has become increasingly fragmented. In three successive opinions, the

Supreme Court examined the confrontation clause status of laboratory analysis reports.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314

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(2009); Bullcoming v. New Mexico, _      U.S. _,131 S. Ct. 2705, 180 L. Ed. 2d 610

(2011); and Williams v. Illinois, _   U.S. _ , 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).

Denise Jones attempts to reconstruct these cases when arguing that WSP Forensic

Scientist Trevor Allen's testimony violated her confrontation rights.

       In a lengthy opinion tracing the Supreme Court's jurisprudence on the issue, our

state high court rejected Denise Jones' argument. Since Jones relies on the same

arguments, the Lui court's analysis bears repeating.

             In Melendez-Diaz, 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.

              Justice Thomas wrote separately to reaffirm that his support for the
      majority was conditioned on the formal nature of the affidavits at issue.
              In Bullcoming, 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 or
      reviewed the actual testing. Again, the Court declared the evidence
      inadmissible by similar divisions as in 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. 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.

              [I]n the next case, Williams, 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

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State v. Jones


       expert is not competent to testifY." In Williams, an expert testified that a
       DNA profile taken from a rape victim matched a DNA profile recovered
       from the defendant. The expert did not prepare the DNA profile; rather, she
       relied on a DNA profile prepared by an outside laboratory. No one from
       that laboratory was subject to cross-examination. 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. First, the expert's reliance on the
       previous steps in the DNA analysis was not offered to prove the truth of the
       matter asserted. 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."

              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. 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.
                                                                                       I
              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, Melendez-Diaz
       did not reach back to encompass every factual predicate behind an expert
       witness's findings .... 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 .... "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." 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.

Lui, 179 at 474-79 (internal citations omitted).


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No. 31639-4-III
State v. Jones


       In the absence of any authority on point, our state Supreme Court, in Lui, crafted

its own rule based on the plain language of the confrontation clause. The confrontation

right applies only to "the witnesses against [the defendant]." U.S. CONST. amend. VI.

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 51 (internal quotation marks omitted). If

the witness's statements help to identifY or inculpate the defendant, then the witness is a

"witness against" the defendant. Lui, 179 Wn.2d at 482. Accordingly, the right to

confront witnesses attaches "[i]fthe declarant makes a factual statement to the tribunal,

... [and] the witness's statements help to identifY or inculpate the defendant." Lui, 179

Wn.2d at 482. This "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." Lui, 179 Wn.2d at 483.

       Applying its new test to expert testimony comparing DNA (deoxyribonucleic acid)

profiles the expert did not create, the court concluded Lui's confrontation right was not

violated. Lui, 179 Wn.2d at 492-93. The court reasoned that DNA profiles gained their

inculpatory character only once the expert compared them. Before then, "it appears as a

whole bunch of numbers that kind of look like gobbledygook." Lui, 179 Wn.2d at 488.

Therefore, "the only 'witness against' the defendant in the course of the DNA testing

process is the final analyst who examines the machine-generated data ... and makes a

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No. 31639-4-III
State v. Jones


determination that the defendant's profile matches some other profile." Lui, 179 Wn.2d

at 489.

          Here, unlike Mellendez-Diaz, the State did not admit a certificate attesting to the

controlled nature of the substances. 557 U.S. at 310-11. Unlike Bullcoming, the State

did not admit a certificate through a surrogate analyst who "had not participated in the

test and could not speak to the_procedures used or observations made." Lui, 179 Wn.2d

at 476; Bullcoming, 131 S. Ct. at 2710-12. Unlike Williams, the State's expert was

competent to identify the controlled substances as methamphetamine. 132 S. Ct. at 2227.

          The testing process Jason Stetzer employed created different size and color

crystals and a graph based on the movement of molecules hit with different infrared light.

Like the DNA profiles at issue in Lui, the raw data Trevor Allen analyzed looked like

"gobbledygook." 179 Wn.2d at 488. Allen examined this data and independently came

to his own opinion about the identity of the substance. The Lui "test allows expert

witnesses to rely upon technical data prepared by others when reaching their own

conclusions." 179 Wn.2d at 483. Like the DNA profiles at issue in Lui, the raw data

Allen used did not gain its inculpatory character until analyzed. Denise Jones was able to

confront and cross-examine Allen face-to-face.

                                        CONCLUSIONS

          The State did not violate Denise Jones' confrontation clause rights. We affirm her    ,
                                                                                                j

conviction.                                                                                     If
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No. 31639-4-III
State v. Jones


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:


   ;!ih~C{J, ~Q-
      Siddoway, C.J.                 0




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