State v. Lui

• Decision Date: 02 January 2014
• Docket Number: No. 84045–8.,84045–8.
• Citation: 315 P.3d 493,179 Wash.2d 457
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Sione P. LUI, Petitioner.

179 Wash.2d 457

315 P.3d 493

STATE of Washington, Respondent,

v.Sione P. LUI, Petitioner.

No. 84045–8.

Supreme Court of Washington,

En Banc.

Jan. 2, 2014.

David B. Zuckerman, Attorney at Law, Seattle, WA, for Petitioner.

Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA, for Respondent.

Amanda Elizabeth Lee, Law Office of Amanda Lee, PLLC, Seattle, WA, Sheryl Gordon McCloud, Washington Supreme Court, Olympia, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

WIGGINS, J.

¶ 1 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.

¶ 2 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 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.

¶ 3 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

¶ 4 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.

¶ 5 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 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.

¶ 6 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.

¶ 7 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.

¶ 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.

¶ 9 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 “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.

¶ 10 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.

¶ 11 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.

¶ 12 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 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.

¶ 13 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.

¶ 14 Lui appealed and the Court of Appeals affirmed in a published opinion. State v. Lui, 153 Wash.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. Id. 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. Id. at 322–25, 221 P.3d 948.

¶ 15 We accepted review...