State v. Manion

• Decision Date: 19 February 2013
• Docket Number: No. 67706–3–I.,67706–3–I.
• Citation: 295 P.3d 270,173 Wash.App. 610
• Parties: STATE of Washington, Respondent, v. Fabian D. MANION, Appellant.
• Court: Washington Court of Appeals

173 Wash.App. 610

295 P.3d 270

STATE of Washington, Respondent,

v.Fabian D. MANION, Appellant.

No. 67706–3–I.

Court of Appeals of Washington, Division 1.

Feb. 19, 2013.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

Samantha Dara Kanner, King County Prosecutor's Office, Seattle, WA, for Respondent.

COX, J.

¶ 1 Fabian Manion appeals his order of disposition for unlawful possession of a firearm. He claims that his Sixth Amendment right to confront witnesses against him was violated by the admission of DNA evidence at his fact finding hearing. He also claims that there was insufficient evidence to support his conviction.

¶ 2 The DNA expert who testified at the fact-finding hearing was the technical peer reviewer of the evidence originally examined by another analyst. The other analyst was unavailable as a witness for the hearing. The expert who testified at the hearing conducted an independent review of the DNA evidence and gave her independent opinion. This opinion was consistent with the conclusions of the unavailable witness. Based on this record, we conclude that there was no violation of the Confrontation Clause. We also conclude there was sufficient evidence to support this conviction. We affirm.¹

¶ 3 In November 2009, four police officers in an unmarked police vehicle were patrolling an area near a Seattle nightclub. The officers saw three African–American males, who were later identified as Jeffrey Banks, K'Breyan Clark, and Fabian Manion. The three were walking away from the nightclub and displayed what the officers interpreted as gang signs to another group outside the nightclub.

¶ 4 The officers noticed that Clark's jacket tilted to the right and bulged as if a heavy object was in his right jacket pocket. The officers also observed Clark put his hand in and out of his pocket multiple times.

¶ 5 With their vehicle's headlights on, the police officers followed Manion and the other two. The three reacted by quickening their pace to a run and then turning behind the north side of a building. The officers temporarily lost sight of them at this point.

¶ 6 When the officers again spotted the three, they saw Clark and Manion standing near a long hedge of bushes on the north side of the building. Both stood facing the bushes near each other. The officers saw Clark make “a furtive movement in a manner indicating that he was depositing something in the bushes.”

¶ 7 One officer saw Banks turn left along the north side of the building and run south along its west side. The officer also saw Banks “slough an object into a bush” near the southwest corner of the building.

¶ 8 The officers stopped the three and ordered them to lie flat on the ground. They complied. One officer located a .40 caliber firearm in the bushes near the southwest corner of the building. At this point, Banks jumped up and ran, but another officer apprehended him.

¶ 9 Two officers found two more firearms in the bushes along the north side of the building. They found a .22 caliber firearm in the bushes near where Manion had been standing before being ordered to the ground. They also found a .38 caliber firearm where they saw Clark making furtive movements.

¶ 10 Manion was sixteen years old at the time of the incident. The State charged him with second degree unlawful possession of a firearm in juvenile court.

¶ 11 At the fact-finding hearing, the court admitted DNA evidence from the .22 caliber firearm that had been tested at the Washington State Patrol Crime Lab. That evidence showed a DNA typing profile obtained from this firearm that was a trace mixture consistent with having originated from two individuals. Manion was included as a possible contributor. The evidence further showed that based on the U.S. population, 1 in 2,200 individuals was a potential contributor to this mixed profile.

¶ 12 The trial court found Manion guilty of the offense charged. The court ordered Manion to serve ten days in detention, pay a crime victim assessment fee, and comply with other conditions.

¶ 13 Manion appeals.

CONFRONTATION CLAUSE

¶ 14 Manion first argues that his Sixth Amendment right to confront the witnesses against him was violated because the DNA technical peer reviewer who testified at the fact-finding hearing was not the analyst who originally tested the evidence. We hold that there was no violation of the Confrontation Clause in this case.

¶ 15 The Sixth Amendment Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” ² “ ‘[T]he “principle evil” at which the clause was directed was the civil-law system's use of ex parte examinations and ex parte affidavits as substitutes for live witnesses in criminal cases.’ ” ³ This practice “denies the defendant the opportunity to test his accuser's assertions ‘in the crucible of cross-examination.’ ” ⁴

¶ 16 In Crawford v. Washington, the U.S. Supreme Court held that the right to confrontation renders “testimonial” statements by a nontestifying witness inadmissible unless the witness is unavailable and previously subject to cross-examination by the defendant.⁵

¶ 17 This court reviews de novo an alleged violation of the Confrontation Clause.⁶

¶ 18 In State v. Lui, this court addressed whether Sione Lui's Sixth Amendment right to confront witnesses against him was violated because two testifying expert witnesses partially relied on forensic evidence that others developed.⁷ There, one testifying expert was a pathologist.⁸ The other was an expert on DNA evidence.⁹

¶ 19 The pathologist, who conducted the autopsy on the victim, was unavailable to testify at trial because he had relocated to Nevada and was testifying in another case.¹⁰ Instead, the pathologist's supervisor who had reviewed and co-signed the autopsy report testified at trial.¹¹ According to this testifying witness, cosigning the autopsy report meant that the supervisor “ ‘reviewed the report, the photographs, the materials collected, as evidence.’ ” ¹² Further, the supervisor “ ‘discussed the case with the principal pathologist’ ” and “ ‘signed [the report] to indicate that [he] agree [d] with the findings.’ ” ¹³

¶ 20 The other expert witness who testified at trial was a laboratory technician who testified about DNA testing.¹⁴ This technician was an associate director of a private DNA testing company that had tested some of the DNA taken from the victim in that case.¹⁵ She did not personally conduct the tests, but she reviewed the notes and reports of the nontestifying technicians who had done the DNA testing.¹⁶ This expert 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.” ¹⁷

¶ 21 This court considered and rejected Lui's claim that admission of the testimony of these two experts violated the Confrontation Clause under Crawford and Melendez–Diaz v. Massachusetts.¹⁸ Specifically, his claim was that both testifying witnesses relied on forensic evidence developed by others who did not testify at trial and he had no opportunity to cross-examine them.¹⁹

¶ 22 In rejecting this claim, this court distinguished Melendez–Diaz.²⁰ In Melendez–Diaz, the Supreme Court held that “certificates of analysis” that stated that a substance seized by law enforcement was in fact cocaine were testimonial statements.²¹ “Absent a showing that the analysts [who created the certificates] were unavailable to testify at trial and that [Melendez–Diaz] had a prior opportunity to cross-examine them, [Melendez–Diaz] was entitled to ‘be confronted with’ the analysts at trial.” ²²

¶ 23 In Lui, this court pointed out material factual distinctions between Melendez–Diazand that case. This court explained that in Lui neither the autopsy report nor the DNA report were offered into evidence in lieu of live testimony.²³ Rather, each expert testified at trial to his or her own opinions and conclusions.²⁴ Each expert testified extensively about his or her own expertise, the protocols and procedures used in their respective offices, and the tests employed.²⁵

¶ 24 In response to Lui's claim that each testifying expert simply served as “surrogates for the true witnesses against him,” this court disagreed. ²⁶ This court stated that its review of the record indicated that the experts presented their independent opinions:

[The pathologist] testified based on his own expertise in strangulation and his independent review of the autopsy photographs and other data recorded in the autopsy report. Similarly, [the DNA expert] testified based on her own interpretation of the machine-generated raw data. Both experts applied significant expertise to interpret and analyze the underlying data. And neither witness simply read to the jury from [the original pathologist] and the DNA laboratory technicians' reports. Indeed, [the DNA expert] deviated from her laboratory's written report when it conflicted with her own opinion. This is not a case where the State produced expert witnesses simply to have them recite out-of-court statements made by others as a way to evade the protections of the confrontation clause.²⁷

Based on that record, this court then concluded that the testifying experts had independently reviewed the evidence on which they testified at trial and reached their own conclusions.²⁸ Thus, they were subject to cross-examination at trial and there was no Confrontation Clause violation. ²⁹

¶ 25 This court further concluded that these testifying experts could partially rely on the reports of others because Evidence Rule 703 permits an expert to base his or her opinion on facts or data that are not admissible. ³⁰ Thus, this court also concluded that the Confrontation Clause does not bar the admission of testimonial statements if they are offered “ ‘for purposes other than establishing the truth of the matter asserted.’ ” ³¹

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