State v. Lui, 61804-1-I.

CourtCourt of Appeals of Washington
Citation153 Wn. App. 304,221 P.3d 948
Docket NumberNo. 61804-1-I.,61804-1-I.
PartiesSTATE of Washington, Respondent, v. Sione P. LUI, Appellant.
Decision Date23 November 2009
221 P.3d 948
153 Wn. App. 304
STATE of Washington, Respondent,
Sione P. LUI, Appellant.
No. 61804-1-I.
Court of Appeals of Washington, Division 1.
November 23, 2009.

[221 P.3d 949]

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

Deborah A. Dwyer, King County Pros Ofc/Appellate Unit, Seattle, WA, for Respondent.


¶ 1 Sione Lui appeals his jury trial conviction for second degree murder in the strangulation death of his fiancee, Elaina Boussiacos. He argues that his Sixth Amendment right to confront the witnesses against him was violated when the State's medical examiner and DNA (deoxyribonucleic acid) expert testified based partially on forensic evidence developed by others. He relies principally on the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), which held that a drug analyst's "certificate of analysis" was testimonial and fell within the scope of the confrontation clause. We hold that no Sixth Amendment confrontation clause violation occurred here because Lui had a full opportunity to test the basis and reliability of the experts' opinions and conclusions. And because Melendez-Diaz does not preclude a qualified expert from offering an opinion in reliance upon another expert's work product, we affirm Lui's conviction.


¶ 2 On February 9, 2001, Elaina Boussiacos was found dead in the trunk of her car. The State charged Sione Lui with her murder.

¶ 3 Lui and Boussiacos began dating in 1999. By the end of 2000, they were living together in a Woodinville apartment. They spoke of getting married, but both were jealous and their relationship was volatile. Shortly before her death, Boussiacos told a friend there was no trust in their relationship because of things Lui had done behind her back. Boussiacos had discovered that Lui was seeing another woman. In late January 2001, she told someone else it was over between her and Lui and they would have to decide which of them would move out.

¶ 4 On January 28, Boussiacos bought a plane ticket to visit her mother in California. The flight was scheduled to leave on Saturday, February 3, at 8:30 a.m. The night

221 P.3d 950

before her departure, she dropped her son off with his father around 9:30 or 9:45 p.m. But she failed to leave on her flight the next morning.

¶ 5 Lui reported Boussiacos missing on February 7. He told a police investigator that she had returned home around 10 p.m. on Friday, February 2, he slept on the couch after she went to bed, and when he awoke the next morning, she was already gone. He claimed that he and Boussiacos had not had sex in the prior two weeks. He suggested that she may have had car trouble and some man may have grabbed her. He also speculated that someone could have followed her if she had been sneaking out to smoke.

¶ 6 On February 9, detectives discovered Boussiacos's body in the trunk of her car, which was parked in a lot not far from Lui's apartment. Dr. Kathy Raven, a pathologist in the King County Medical Examiner's Office, performed an autopsy. Dr. Raven was unavailable to testify at Lui's trial because she had relocated to Nevada and was testifying in another case. The State called Dr. Richard Harruff to testify instead. Dr. Harruff, the Chief Medical Examiner and pathologist for King County and Dr. Raven's supervisor, had co-signed the autopsy report. He explained, "To co-sign means that I have reviewed the report, the photographs, the materials collected, as evidence, I have discussed the case with the principal pathologist, and I signed to indicate that I agree with the findings." Verbatim Report of Proceedings (VRP) (Apr. 16, 2008) at 1335-36.

¶ 7 He also testified that Dr. Raven performed Boussiacos's autopsy on February 10, 2001, and at that time, he reviewed her work and agreed with her findings. He further testified that he discussed with Dr. Raven the wording to be used in the autopsy report to document the injuries observed during the autopsy. Dr. Harruff explained that in his supervisory role, he would not have signed the autopsy report unless it was completely accurate. And when describing his professional credentials, he said that as a forensic pathologist for many years, he developed expertise on strangulation injuries. Finally, Dr. Harruff said he recalled viewing Boussiacos's body at some point because strangulation is a subtle type of injury that tends to generate more discussion within the medical examiner's office.

¶ 8 Lui objected that Dr. Harruff's testimony was based on hearsay, but the trial court overruled this objection, noting that experts can rely on hearsay under ER 703.1 Lui also argued that the testimony would violate his right to confront the witnesses against him. The trial court ruled that Dr. Harruff could testify because "the confrontation requirement is satisfied by him being in court." VRP (Apr. 16, 2008) at 1347.

¶ 9 Dr. Harruff testified that Boussiacos was strangled to death.2 He described signs of strangulation visible from the photographs taken during the autopsy, and testified that it generally takes four minutes to strangle someone to death. In his opinion, Boussiacos could have died on February 2 or 3 based on her body temperature when found.3 But on

221 P.3d 951

cross-examination, he also testified that determining time of death is very difficult. He acknowledged the possibility that she could have died on February 4, 5, 6, or 7.4 Dr. Harruff also testified that Boussiacos's blood was submitted to the Washington State Toxicology Laboratory for drug and alcohol testing. When asked about the test results for nicotine, he stated, "[n]icotine was not detected in the blood." VRP (Apr. 16, 2008) at 1398.

¶ 10 Over Lui's objections, the State also presented the expert testimony of Gina Pineda, an associate director of Orchid Cell Mart, a private DNA testing company. Pineda previously worked for a similar company called Reliagene Technologies until Orchid Cell Mart acquired it. Reliagene tested Boussiacos's shoelaces, and Orchid Cell Mart tested Boussiacos's vaginal wash. Pineda did not personally conduct the tests, but she reviewed the notes and reports of the technicians who did.5 Pineda explained that the testing results are reduced to a machine printout that any expert can review and draw conclusions from. Pineda also testified about the laboratory's chain of custody procedures, the protocols and tests involved, laboratory technician training and certification, and other quality assurance measures.6

221 P.3d 952

¶ 11 Based on her independent review of the testing results, Pineda concluded that Lui—unlike 99.7 percent of the population— could not be excluded as a major donor to the DNA on the shoelaces. She also testified that the vaginal wash testing revealed a single male donor and that Lui—unlike 99.8 percent of the population—could not be excluded as the donor.7

¶ 12 In closing argument, the prosecutor summarized the State's evidence against Lui. She pointed to witnesses who described Lui as jealous and possessive. She argued from other witness statements that Boussiacos decided to end the relationship shortly before being killed. She emphasized that Lui was alone with Boussiacos on the night of February 2, 2001, the last time anyone reported seeing her alive. Under the State's theory of the case, Lui strangled Boussiacos to death that night or the following morning, which was consistent with Dr. Harruff's opinion regarding the time of death.

¶ 13 The prosecutor also argued that Lui's version of events was not credible. She cited several examples of him giving different accounts to different witnesses. He told some people that he and Boussiacos had ended their relationship, but others that they were still planning to marry. He gave varying accounts of his relationship with another woman. He told some people that Boussiacos's trip to California was long planned, but others that he did not know about it until the night before. The prosecutor also noted that Lui claimed not to have had sex with Boussiacos but that Pineda's testimony regarding the vaginal wash DNA test results suggested the contrary. And she mentioned that no nicotine was found in Boussiacos's system despite Lui's suggestion that she might have been abducted while sneaking outside to smoke.

¶ 14 The prosecutor further argued that Lui dressed Boussiacos and attempted to make it appear that she left the house on her own. Pineda's testimony about the DNA testing of Boussiacos's shoelaces supported this argument. Additionally, the prosecutor argued that Boussiacos was not wearing makeup as she customarily did and the materials found in her car were not what she would have packed for her visit to California. And in rebuttal closing argument, the prosecutor again emphasized Lui's motive and opportunity to kill Boussiacos.

¶ 15 The jury convicted Lui of second degree murder as charged. The court sentenced him within the standard range. He now appeals.

221 P.3d 953

¶ 16 Relying principally on Melendez-Diaz, Lui contends that the admission of Dr. Harruff and Pineda's testimony violated his right to confront the witnesses against him. He argues that they relied on forensic evidence developed by others who he had no opportunity to cross-examine. In Lui's view, these individuals—Dr. Raven and various DNA laboratory technicians—were witnesses against him and he had the right to face them in the courtroom. We review an alleged violation of a defendant's confrontation rights de novo. State v. Kirkpatrick, 160 Wash.2d 873, 881, 161 P.3d 990 (2007).

¶ 17 The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court reviewed the history and purpose of this clause. The Court noted that the right to...

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