Personal Restraint Petition Of Brandon Joseph Earl

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal
Restraint Petition of
BRANDON JOSEPH EARL,
Petitioner.
No. 72685-4-
ORDER GRANTING MOTION
FOR RECONSIDERATION,
WITHDRAWING &
SUBSTITUTING OPINION
Petitioner filed a motion for reconsideration of the court's April 4, 2016 opinion.
Respondent filed an answer at the court's request. 	The court has considered the
motion and determined that reconsideration should be granted, the opinion filed on April
4, 2016 should be withdrawn, and an unpublished substitute opinion filed.
Now, therefore, it is hereby
ORDERED that petitioner's motion for reconsideration is granted. 	It is further
ORDERED that the opinion of this court filed April 4, 2016 is withdrawn and a
unpublished substitute opinion be filed.
Dated this _£l_ day of 	)H#tU'\
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal
Restraint Petition of
BRANDON JOSEPH EARL,
Petitioner.
Verellen, C.J. — A forensic scien
No. 72685-4-
UNPUBLISHED OPINION
— 	HC
f 	>—1
FILED: 	June 6, 2016 	*** 	^U' 	33» 	oornr->
ist's disciplinary records support a 	— 	of
motion for new trial only if the newly discovered evidence would probably change
the outcome of the trial. 	The State's failure to provide such records supports a
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 Bradv 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]
2Pet'r'sBr., app. 2, at 4.
4 ]d, at 25-26.
5 id, at 26, 29.
6 id, at 29.
7Report of Proceedings (RP) (Jan. 30, 2013) at 279.
8ld,
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.18
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
two pa
0 id, at 284.
1 id, 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.
7 id, at 295-96, 337-38; Interview of April Mathis (Dec. 14, 2012) at 72.
8(RP)(Jan. 30, 2013) at 394.
9 id, at 399. The record does not explain why the hamper contained only
rs 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 notthe outside, ofthe 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 and had a "urine
like odor."29 Amylase was not found on the outside crotch area of the tights.30
21 id, at 397.
22 Pet'r's Br., app. 2, at 27-28.
23 Id, at 23.
24RP(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.
29 id, at 664, 671.
30 Id. at 672-73, 678-79.

No. 72685-4-1/5
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
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
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.
39 Id. at 775.

No. 72685-4-1/6
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 database grows,
it provides a more specific calculation of the frequency of any particular profile.48
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.
46RP(Feb. 1,2013) at 796; RP (Feb. 4, 2013) at 845.
47 RP (Feb. 4, 2013) at 842, 845.
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.").

No. 72685-4-1/7
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.
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
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
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:
"'(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
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).
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.
8

No. 72685-4-1/9
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
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
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).
62 id, at 59.
63 Id. at 61.

No. 72685-4-1/10
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 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
64 Id,
65 id.
66 id. at 78.
67 id.
68 Id. at 81-•82.
10

No. 72685-4-1/11
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.71[ 	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-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
69Resp't's Br., app. A-1.
70 id,, app. C-1.C-2.
71 id,, app. D-1.
72 id,, app. 2-4, If 8.
73 Id,, app. 2-2, H4.
74RP(Feb. 4, 2013) at 852.
11

No. 72685-4-1/12
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 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
75Resp't's Br., app. 2-3, U 5.
76 Davila, 184 Wn.2d at 78.
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.
12

No. 72685-4-1/13
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 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
78 Resp't's Br., apps. F, G, I, J, K.
79 id,, app. 2-4,1J11.
80 id,, app. G; app. 2-4,1J11.
81 RP(Aug. 6, 2014) at 7.
82 Davila, 184 Wn.2d at 79.
13

No. 72685-4-1/14
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 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.
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
Therefore, we deny Earl's personal restraint petition.
Earl filed a motion for reconsideration requesting that we exercise our
discretion to waive costs on appeal. 	On a motion to reconsider in State v. Sinclair,
we concluded that "it is appropriate for this court to consider the issue of appellate
costs in a criminal case during the course of appellate review," noting that "[a]bility
to pay is certainly an important factor that may be considered under [the appellate
cost statute], but it is not necessarily the only relevant factor, nor is it necessarily
an indispensable factor."86 	There, the court decided to "exercise our discretion to
rule that an award to the State of appellate costs is not appropriate."87
After reviewing the record in this appeal, and consistent with the
nonexclusive factors mentioned in Sinclair, we grant Earl's motion for
reconsideration and exercise our discretion to conclude that an award of costs on
appeal is not warranted.
WE CONCUR:
T^ / 	*s\ c-w
J ^L
86 192 Wn. App. 380, 389-90, 367 P.3d 612 (2016).
87 id, at 393.
15