Opinion Information Sheet

			

State v. Thompson (Bobby Ray)

                                         No. 84739-8

       MADSEN, C.J. (dissenting) -- The only issue on which review was granted is 

whether, in deciding the defendant's postconviction motion for DNA (deoxyribonucleic 

acid) testing, the trial court properly considered a statement that the defendant made to 

police after his arrest. Under RCW 10.73.170, the proper focus of a court deciding a 

postconviction motion for DNA testing is on whether the defendant has made the required 

showing of actual innocence.  This means establishing on a more probable than not basis 

that the wrong person was convicted.

       Unfortunately, in deciding whether the statutory standard for posttrial DNA 

testing is met, the majority applies rules for admissibility at trial.  But the statutory 

inquiry is not a criminal trial governed by the same constitutional and evidentiary 

standards that apply at trial to determine whether the defendant is legally guilty.  Instead, 

to decide whether the defendant has sufficiently shown actual innocence to justify 

postconviction DNA testing, a trial court should consider reliable evidence that the  

No. 84739-8

defendant committed the acts constituting the criminal offense because this evidence is

highly relevant to the inquiry into actual innocence.

       Contrary to the majority's belief, our decision in State v. Riofta, 166 Wn.2d 358, 

209 P.3d 467 (2009), does not limit the inquiry only to evidence that was either admitted 

at trial or is newly discovered.  Indeed, the issue whether available evidence that was not 

admitted or admissible at trial may be considered was never before the court in Riofta.  

Moreover, we made it absolutely clear in Riofta that the focus of a postconviction motion 

for DNA testing is on whether the defendant is actually innocent, and it cannot seriously 

be questioned that evidence that was not admitted at trial can be relevant to this question.

       Contrary to the majority, it does not "unduly expand" (majority at 9) the statutory 

inquiry to consider reliable evidence at the very core of RCW 10.73.170.  But the 

majority would have the court disregard important evidence on the issue of actual 

innocence, not because it is unreliable or irrelevant but because it was not admitted at 

trial -- a requirement found nowhere in the statute -- and even though the evidence is a 

reliable statement that the defendant himself stipulated he voluntarily made and which 

establishes that he is not innocent of rape. 

       The majority also paints a picture of uncertain identification, evidently to show the 

necessity of a DNA test.  But the record shows that the victim identified the defendant as 

the rapist-assailant just as he was physically pushing her out of the room where the rape 

occurred, immediately after the assault, in the presence of numerous police officers, 

followed by an in-court identification.  Whatever may be the limit of eyewitness 

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No. 84739-8

identification, it is not relevant here.

       I would hold that reliable, relevant evidence bearing on whether the right person 

was convicted may be considered for the limited purpose of deciding a motion for 

postconviction DNA testing under RCW 10.73.170, provided that the defendant has the 

opportunity to challenge the evidence. This standard is satisfied by the defendant's 

statement at issue in this case.  The trial court did not abuse its discretion by considering 

the statement.

                                          Discussion

                                       Additional Facts

       Before turning to the question of what evidence may be considered when ruling on 

a postconviction motion for DNA testing, additional facts from the record are relevant to 

the question whether the trial court abused its discretion in denying the defendant's 

motion.  First, the evidence at trial on the issue of the defendant's identity as the person 

who assaulted J.S. is much stronger than indicated by the majority, showing that the State 

did not have the weak case the majority describes.  Second, the defendant's statement that 

is at issue was excluded at trial based on a stipulation by the parties.  Insofar as its 

relevance to the statutory inquiry under RCW 10.73.170 is concerned, there has never 

been any dispute about the reliability of the statement.  Third, additional facts relating to 

forensic testing but not acknowledged by the majority are set out here because whether a 

defendant seeks DNA testing at trial is a matter that may be considered when deciding 

whether to grant a postconviction motion for DNA testing. The following additional facts

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No. 84739-8

complete the factual background relevant and necessary for resolving the issue in this 

case.

       a. The evidence of identity

       Very early in the morning on April 14, 1995, about 3:00 a.m., Lynwood City 

Police Officer Ronald Erue was dispatched to a hotel to respond to a 911 call reporting a

"physical" domestic dispute.  1 Verbatim Report of Proceedings (VRP) (July 24, 1995) at

35-36.  He was the first to arrive.  Room 111, where the disturbance had occurred, was 

just around the corner from the hotel clerk's desk.  The door was closed.  After additional 

officers arrived, the officers heard a door open, looked down the hallway, and saw a man 

and woman leaving room 111.  The man was the defendant, Bobby Ray Thompson, and 

the woman was J.S., the victim.  The defendant "was forcing the female out the door and 

out the emergency exit."  Id. at 39. "[H]e had a hold of her and physically pushed her out 

the door."  Id.  "It appeared he was forcing her out the door. . . .  He was right behind her 

physically forcing her out the door."  Id. at 40. Officer Erue asked them to stop, but 
Thompson just looked at Erue and continued to push J.S. out the door.1

       Erue testified that J.S. "got about halfway out the door and turned, saw me, and 

started yelling hysterically that he'd beat her and he was going to kill her."  Id. at 40-41.  
The officer saw that J.S. had "been beat pretty severely."  Id. at 41.2 "She kept screaming 

he had beat her, that he was going to kill her.  She was crying, shaking."  Id.  Officer 

1 The defendant did not dispute at trial that he was the man attempting to push J.S. out the door 
but did contest the State's evidence that he was the person who had beaten and raped her.
2 Officer Erue described her condition, including the fact that she was bleeding from her eyes, 
something he had never seen before.  She was also bleeding from the nose and mouth.

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No. 84739-8

Erue also testified that she said that "when she would not put out, he beat her and raped 

her."  Id. at 54.

       Lynnwood City Police Officer David Byrd was also dispatched to the hotel in 

response to the report of a domestic disturbance in room 111.  He similarly described 

seeing J.S. and Thompson, with Thompson "shoving [J.S.] out the emergency exit door."  

VRP (July 25, 1995) at 39. Officer Byrd affirmatively identified Thompson in court as 

being the man he saw outside room 111.  He described seeing only Thompson being 

detained outside room 111 and testified that when he did a protective sweep of the hotel 

room there was no one else in the room.

       Lynnwood City Police Officer Steven Rider also testified that he responded to the 

hotel and along with Officers Byrd and Erue approached room 111.  He testified to 

Thompson trying to push J.S. out the "back door."  Id. at 53-54.  Officer Rider 

affirmatively identified Thompson in court as the person who was pushing J.S. out the 

door.  Rider testified that he placed Thompson under arrest.

       The hotel clerk on duty at the time identified Thompson in court as the person she 

had seen the police officers remove from the hotel.

       J.S. identified Thompson in court as the man who assaulted her.  She testified that 

he approached her when she was out with friends at a bar and invited her to join him at an 

"after hours" party at the hotel across the street.  1 VRP at 60-62.  She testified that she 

went with him, but when she discovered there was no one else in the room, told him she 

had to leave.  She said that he responded by hitting her and knocking her unconscious.  

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No. 84739-8

She testified that she was raped numerous times and continually beaten and knocked 

unconscious and that he tried to drown her.  J.S. testified that there was no one else in the 

hotel room.

       On cross-examination, J.S. was questioned about a description of her attacker that 

she had provided during an interview with a defense investigator. (That interview 

occurred on June 26, 1995, about two and one-half months after the assault.  Confidential 

Investigative Memo to Att'y at 1 (July 3, 1995).)  Clerk's Papers (CP) at 53.  Defense 

counsel cross-examined her about having described the attacker as being about five foot 

seven to five foot eight inches tall with shoulder-length blond hair.  J.S. testified that she 

had said to the investigator that she thought he was that tall but was not sure of his height, 

adding that she is only four feet, nine inches tall, and "so everybody seems pretty tall to 

me."  1 VRP at 80-81, 83. She said she "couldn't be sure" and did not "know how tall he 

was."  Id. at 83. J.S. testified that she also had told the investigator that she was not sure 

of the color of his hair.  When she was asked about having said the attacker had no facial 

hair, she denied having said that and instead said that she told the investigator that she 

was not sure.  She did say that she had told a detective the day after the attack that she 

probably could not identify the attacker.

       But regardless of uncertainty she may have expressed when verbally describing 

her assailant, J.S. positively identified Thompson to police officers immediately after the 

attack and she positively identified him in court as the man who raped and beat her.

       In summary, the evidence on identification includes:  J.S.'s at-the-scene 

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No. 84739-8

identification to police officers of Thompson as the man who had raped, beaten, and tried 
to kill her;3 her testimony that he was the only one in the hotel room when she was raped 

and beaten; her positive in-court identification of Thompson as the rapist;4 police 

officers' in-court identifications of Thompson as the man they saw trying to push J.S. out 

an exit door near the room where she was raped and whom she immediately identified as 

her attacker; the officers' testimony that there was no one else on the scene; that, upon

prompt inspection of the room, no one else was found in it; and the hotel clerk's 

identification of Thompson as the person she saw the police remove from the hotel.  

Thompson was positively identified at the time of the assault as J.S.'s assailant and as the 

only person in the hotel room with her.

       b.  Exclusion of the defendant's statement

       During preliminary proceedings, the defendant's attorney started to say "there 

[are] some statements that Mr. Thompson made" and the court interrupted, "Are those the 

ones that are purportedly contained in the affidavit of probable cause?"  1 VRP at 18.  

3 Officer Rider prepared an additional narrative report, in which he said that he heard J.S. say that 
Thompson was her attacker.  His report states that as other officers went to J.S.'s aid, he stayed 
with Thompson, but could hear J.S. "screaming that Thompson had tried to kill her."  Clerk's 
Papers (CP) at 85.
4 Inaccuracy of eyewitness identification is often a reason given for why innocent people have 
been convicted, and thus inferentially one reason why a postconviction process for obtaining DNA 
testing is important.  See, e.g., Steven A. Krieger, Why Our Justice System Convicts Innocent 
People, and the Challenges Faced by Innocence Projects Trying to Exonerate Them, 14 New
Crim. L. Rev. 333, 341 (2011) (explaining that inaccurate eyewitness identifications contributed 
to the convictions in more than 80 percent of documented cases of DNA exonerations).  
However, in the present case the victim was contemporaneously being physically pushed by the 
individual she immediately identified as having raped, beaten, and tried to kill her, at the very 
moment she identified him to police officers as her assailant.

                                               7 

No. 84739-8

Counsel agreed, advised the court that there had been no CrR 3.5 hearing, and then 

counsel began to say "so as I understand it."  Id.  At this point, the prosecuting attorney 

interrupted and advised the court he did not intend to use the statement other than for 

purposes of cross-examination.  The parties then stipulated that Thompson's statement 

was voluntary and that it was admissible for purposes of possible impeachment of the 

defendant if he testified. Expressly basing its decision on the parties' agreed stipulation, 

the court granted the motion to limit admissibility to this purpose.  There is no evidence 

suggesting that the statement would have been ruled inadmissible at a CrR 3.5 hearing, 
such as for lack of Miranda warnings.5 Indeed, the stipulation on the statement's 

voluntariness and use supports the opposite conclusion.  

       c.  Forensic testing at trial

       In Riofta we determined that whether a defendant requests DNA testing at trial 

may be considered in deciding a postconviction motion for DNA testing. Therefore, a 

further description of the facts regarding forensic testing for trial is relevant and in the 

context here, highly significant.

       Greg Frank, a forensic scientist with the Washington State Patrol laboratory in 

Marysville, testified at trial to a three-month backlog of cases requiring testing at the 

Marysville laboratory at the time the bodily fluid evidence in this case was received.  He 

5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).  In his additional 
narrative report, Officer Rider stated that after he arrested him he "advised Thompson of his 
constitutional rights which he said he understood because he had been arrested before."  CP at 85
(capitalization omitted). The report continued:  "I asked him if, understanding his rights, he 
would like to waive them and talk to me about what happened.  He said he did."  Id.  Thompson 
then made the statement at issue.

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No. 84739-8

stated that by the time he began testing the blood and other samples, it was too late to 

send samples on to the state lab in Seattle where DNA testing was done and still have the 

DNA testing complete by the time of trial in accordance with speedy trial rights.

       The defense did not seek a continuance for the purpose of DNA testing.  However, 

the defense did move for a continuance for the purpose of trying to obtain other evidence 

that allegedly would implicate another person as the individual who assaulted J.S. (a 

motion that the trial court denied as being too "iffy," untimely, and of marginal relevance, 

1 VRP at 16).

       During closing argument, defense counsel referred to the fact that there was no 

DNA evidence, saying that being overworked was an unacceptable excuse for DNA 

testing not having been completed, and described the State's failure to produce DNA 

evidence as "lack of evidence" that the defendant was guilty.  VRP at 100.  The 

prosecuting attorney responded that he wished he did have DNA evidence.  He explained 

to the jury that there were limitations due to the state budget for staff, the time needed to 
conduct the testing, and the defendant's speedy trial rights.6

       With these additional facts, I turn to the issue before us.

6 The majority also relies rather heavily on the defendant's claim that had he been J.S.'s attacker, 
there would have been evidence at trial that his hands were damaged, but there was none.  The 
absence of such evidence, the defendant asserts, supports his claim of actual innocence.  The 
problem with this argument is that it presumes a conclusion when no evidence on the condition of 
his hands, one way or the other, was presented at trial.  I note that in his additional narrative 
report, Officer Rider referred to cuts and scrapes on Thompson's body at the time he was 
arrested.  CP at 86.

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No. 84739-8

                    Postconviction Motion for DNA Testing; Evidence

       Relying on a single sentence in Riofta, the majority says that under RCW 

10.73.170 the only evidence that can be considered is evidence that was admitted at trial 

and newly discovered evidence.  This both misreads and misapplies Riofta. Quite simply, 

there was never any issue in Riofta about whether evidence that was not presented to the 

jury but available at the time of trial may be considered when deciding a postconviction

motion for DNA testing.  We never held that the evidence that can be considered is so

unduly restricted.  To the contrary, the primary emphasis in Riofta is on the requirement 

that a defendant show actual innocence.

       We emphasized that the legislature used the word "innocence" "to restrict the 

availability of postconviction DNA testing to a limited class of extraordinary cases where 

the results could exonerate a person who was wrongly convicted of a crime."  Riofta, 166 

Wn.2d at 369 n.4.  "RCW 10.73.170 is not aimed at ensuring a defendant had a fair trial.

Its purpose is to provide a remedy for those who were wrongly convicted despite

receiving a fair trial."  Id.  RCW 10.73.170 "asks a defendant to show a reasonable 

probability of his innocence before requiring State resources to be expended on a test."  

Id. at 370. Accordingly, the focus is on the defendant's innocence.  Id.  "Innocent" 

means that the State convicted the wrong person.  Id. at 369 n.4 (citing Sawyer v. Whitley, 

505 U.S. 333, 340, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992)).

       When reliable evidence available at the time of the motion shows that the State did 

                                               10 

No. 84739-8

not convict the wrong person, the purpose of the statute is not furthered by granting the 
motion.7  On the contrary, the statutory goal is served by permitting a trial court to 

consider relevant, reliable evidence such as the defendant's statement here.  In fact, if 

there is relevant, reliable evidence bearing on the issue of the defendant's actual 

innocence, the failure to consider it may result in a significantly distorted view of the 

defendant's innocence (or lack thereof). This is not what the legislature intended.

       The majority says, though, that we must "focus on the statutory requirements" and

"not unduly expand the inquiry."  Majority at 9. I completely agree, but am at a loss as to 

how considering reliable evidence directly bearing on the issue of actual innocence is an 

undue expansion of the inquiry into actual innocence.  I also agree that the postconviction

inquiry is not a retrial, see id.; indeed, this is why the standards and rules of admissibility 

applicable at a criminal trial should not strictly control.  The statute's focus on actual 

innocence should guide us in deciding what evidence may properly be considered when 

deciding whether the defendant has made a sufficient showing of innocence. 

       Simply stated, a motion under RCW 10.73.170 does not occur in a criminal trial.  

Rather, RCW 10.73.170 provides a species of postconviction relief.  Riofta, 166 Wn.2d at 

370.  A defendant seeking postconviction relief is in a "significantly different situation 

than a person facing trial."  Id. at 369. Available rights are limited.  In District Attorney's 

7 DNA test results can be exculpatory, inconclusive, or inculpatory, and in some cases may 
provide exclusionary results sufficient "enough to undermine the validity of the conviction."  
Melissa Duncan, Comment, Finding a Constitutional Right to Access DNA Evidence:  
Postconviction, 51 S. Texas L. Rev. 519, 523 (2009).  (Contrary to the title of this comment, the 
United States Supreme Court held that there is no constitutional right to DNA testing in 
Osborne.)  

                                               11 

No. 84739-8

Office for Third Judicial District v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 174 L. Ed. 2d 

38 (2009), the United States Supreme Court explained why different rights exist during 

postconviction proceedings than exist in a criminal trial: 

              A criminal defendant proved guilty after a fair trial does not have the 
       same liberty interests as a free man.  At trial, the defendant is presumed 
       innocent and may demand that the government prove its case beyond 
       reasonable doubt.  But "[o]nce a defendant has been afforded a fair trial and 
       convicted of the offense for which he was charged, the presumption of 
       innocence disappears."  Herrera v. Collins, 506 U.S. 390, 399, 113 S.Ct. 
       853, 122 L.Ed.2d 203 (1993). "Given a valid conviction, the criminal 
       defendant has been constitutionally deprived of his liberty."  [Conn. Bd. of 
       Pardons v.] Dumschat, [452 U.S. 458,] 464, 101 S.Ct. 2460[, 69 L. Ed. 2d 
       158 (1981)] (internal quotation marks and alterations omitted).
              The State accordingly has more flexibility in deciding what 
       procedures are needed in the context of postconviction relief.  "[W]hen a 
       State chooses to offer help to those seeking relief from convictions," due 
       process does not "dictat[e] the exact form such assistance must assume."  
       Pennsylvania v. Finley, 481 U.S. 551, 559, 107 S.Ct. 1990, 95 L.Ed.2d 539 
       (1987). [The] right to due process is not parallel to a trial right, but rather 
       must be analyzed in light of the fact that [the individual] has already been 
       found guilty at a fair trial, and has only a limited interest in postconviction
       relief.

Id. at 2320 (some alterations in original).

       Thus, in Osborne, the Court held there is no free-standing substantive due process 

right to postconviction DNA testing.  Id. at 2322-23.  The Court said that a state may 

create a limited liberty interest in demonstrating innocence with new evidence, but this 

right has to be analyzed in light of the fact that the defendant has already been convicted.  

Id. at 2319-20.

       The Court also held that there is no procedural due process right requiring the 

State, in postconviction proceedings where a defendant seeks DNA evidence, to disclose 

                                               12 

No. 84739-8

material exculpatory evidence; the obligation recognized in Brady v. Maryland, 373 U.S. 

83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), requiring a prosecutor to disclose material 

exculpatory evidence to the defendant before trial does not apply in postconviction

proceedings.  Osborne, 129 S. Ct. at 2319-20; Twillie v. Foulk, 360 F. App'x 301, 304 

(3d Cir. 2010) (unpublished opinion).

       This court, too, recognizes that different rights exist, and different analyses apply, 

depending upon whether the proceeding is the criminal trial itself or some other 

proceeding.  In particular, admissibility of evidence at trial is not necessarily a 

prerequisite to its consideration in proceedings other than a criminal trial.  For example, 

sentencing judges have traditionally had discretion in the sources and types of evidence 

that may be considered when determining a defendant's sentence.  State v. Strauss, 119 

Wn.2d 401, 418, 832 P.2d 78 (1992); State v. Herzog, 112 Wn.2d 419, 424, 771 P.2d 739 

(1989). At sentencing, the rules of evidence do not strictly apply.  Strauss, 119 Wn.2d at 

418.  Rather, evidence admitted at a sentencing hearing must meet due process 

requirements that the evidence be reliable and the defendant be given the opportunity to 

refute it.  Id. at 418-19.

       Reliability is also key to considering certain otherwise inadmissible evidence in 

postconviction proceedings where, although an individual is guaranteed some rights, they 

are not the same rights guaranteed in a criminal prosecution.  State v. Abd-Rahmaan, 154 

Wn.2d 280, 288-89, 111 P.3d 1157 (2005) (postconviction sentence modification 

hearings are not criminal prosecutions and therefore "flexible" due process requirements 

                                               13 

No. 84739-8

govern confrontation).  State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999), is 

instructive.  There, the issue was whether hearsay evidence was properly admitted in a 

defendant's hearing on revocation of a special sentencing alternative sentence.  Because 

the hearing was not a criminal proceeding and because the "minimal" due process rights 

that are required in order to confront and cross-examine witnesses are not absolute, we 

applied a balancing analysis, weighing reliability of the hearsay evidence against the 

difficulty that would be involved in procuring a live witness.  Id. at 686.

       Neither a trial court deciding a postconviction motion for DNA testing or an 

appellate court reviewing a trial court's decision on the motion is considering evidence 

for the purpose of determining whether the defendant is guilty or not guilty.  Instead, as 

stated, the issue is whether a claim of actual innocence is sufficient to justify the 
expenditure of costs, resources, and time necessary to provide DNA testing.8 On this 

issue, relevant, reliable evidence should be considered in deciding the question of actual 

innocence.

       Another court has faced the issue whether statements that were inadmissible or not 

admitted at trial can be considered in deciding whether to grant a postconviction request 

8 In 2006, a North Carolina Department of Justice cost study determined that the average cost of 
analyzing a rape kit in a state crime laboratory was $568.96, and in a private laboratory, after 
processing costs are added, $681.03.  Justin Brooks & Alexander Simpson, Blood Sugar Sex 
Magik:  A Review of Postconviction DNA Testing Statutes and Legislative Recommendations, 59 
Drake L. Rev. 799, 828 (2011).  Federal law provides for federal funds to help defray costs in 
states where the DNA testing statutes conform to federal requirements.  Justice for All Act of 
2004, Pub. L. No. 108-405, § 413, 118 Stat. 2260, 2285 (2004). Generally, the standard required 
for federal funds is that there is a reasonable probability the defendant would not have been 
convicted if DNA testing had been available and conducted at the time of trial.

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No. 84739-8

for DNA testing.  The Texas Criminal Court of Appeals held that the defendant's

statement and accomplices' statements were properly considered by the trial court ruling 

on a postconviction request for DNA testing.  In Ex Parte Gutierrez, 337 S.W.3d 883, 

892 (Tex. Crim. App. 2011), the defendant, who was denied postconviction DNA testing, 

argued that the trial court improperly considered both his own "statement to 

police -- because it was purportedly taken in violation of his right to remain silent -- [and] 

his accomplices' statements -- because they were neither admissible nor admitted at trial."  

(Footnote omitted.)  The defendant claimed that the trial court therefore improperly 

denied his request for appointed counsel to assist in a motion for forensic DNA testing, as 

authorized by state law if a trial court determined that the defendant established 

reasonable grounds to file a motion for DNA testing.  

       The Texas appellate court rejected the argument.  The court explained that 

"[a]lthough evidence offered against a defendant at a criminal trial and challenged on 

constitutional grounds must be admissible to give adequate protection to the values that

exclusionary rules are designed to serve," a postconviction proceeding addressing a 

person's request for DNA testing "is not a 'criminal trial'" but is instead "an independent, 

collateral inquiry" where the exclusionary rule has no place.  Id. at 892-93. The court 

observed that the state "legislature ha[d] placed no barriers to the type of relevant and 

reliable information that the trial judge may consider" and, while the information the 

court considers must be reliable, "it need not be admissible or previously admitted at 

trial."  Id. at 893.

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No. 84739-8

       The Texas court's analysis and its conclusion that reliability is the linchpin for 

consideration of the statements in Gutierrez are similar to our own postconviction

decisions holding that constitutional protections and evidentiary standards are not the 

same as in the criminal trial and in certain circumstances reliable evidence may be 

considered even though not admissible at trial.

       Moreover, just as was true of the Texas law at issue, our state legislature has 

placed no restrictions on the type of evidence that may be considered in deciding whether 

a defendant has established that DNA testing, along with other evidence, will show

innocence on a more probable than not basis.  Nothing in RCW 10.73.170 precludes 

consideration of relevant, reliable evidence that was available but not admitted at trial.  

This is entirely in keeping with the purpose of the statute to enable consideration of 
actual innocence when deciding whether to grant the motion for DNA testing.9

       A trial court ruling on a postconviction motion for DNA testing is not determining 

whether the defendant was guilty of the crime.  The individual has already been 

convicted.  See RCW 10.73.170(1) (authorizing a person in prison after being "convicted 

of a felony" to move for DNA testing).  Because the issue is whether the defendant has 

made a sufficient showing of actually innocence, here the defendant's statement to police

is highly relevant.  It affirmatively shows that he is not actually innocent.  As the majority 

9 The fact that a defendant continues to maintain innocence while requesting DNA testing does 
not mean that the defendant is actually innocent, of course.  For unknown reasons that seem to 
defy logic, an individual may maintain innocence for years and then, when DNA testing is finally 
obtained, the test results match this individual who had maintained innocence.  Krieger, supra, at 
387-88 (noting this problem, and referring to one innocence "project admitted that eight of the 
twenty-five DNA tests the project conducted matched the individual professing innocence").

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No. 84739-8

says, majority at 10, only one person had sexual intercourse with the victim the night she 

was raped and beaten.  In his statement, the defendant voluntarily stated that he had 

sexual intercourse with J.S., although he claimed it was consensual.

       The statement is also reliable.  As mentioned, at trial the defendant stipulated to 

voluntariness and he does not now make any claims to the contrary.  Critically, he also 

has never repudiated the truth of the factual statements contained in his sworn statement, 

including the fact that he had sexual intercourse with J.S.  He had no need or obligation

to do so at trial, of course, but on this postconviction motion for DNA testing, where he 

must make an affirmative showing of innocence, his failure to counter the veracity of his 

admittedly voluntary statement is pertinent on the matter of reliability.  Finally, he has 

presented no evidence that contradicts his admission that he had sexual intercourse with 

J.S.

       The trial court properly considered the defendant's statement made to police after 

his arrest.

       Based on all of the evidence before it, and contrary to the majority's conclusion, 

the trial court did not abuse its discretion when it denied the defendant's postconviction
motion for DNA testing.1

       In addition to the evidence of the defendant's statement, the trial court11 was also 

1 The majority addresses the issue whether the defendant was required to show that DNA 
technology was unavailable at the time of trial.  Majority at 11-12.  Our grant of review was 
limited, however, to the issue whether the trial court properly considered the defendant's 
statement to the police.  Order, State v. Thompson, No. 84739-8 (Nov. 3, 2010); see RAP 13.6; 
RAP 13.7(b).  It is unfair, as well as in violation of our rules, to grant review on a limited issue, 
receive supplemental briefing only on that issue, and then address and decide an additional issue. 

                                               17 

No. 84739-8

presented with the evidence pertaining to the defendant's failure to request DNA testing 

at trial.  Although not a per se bar to postconviction DNA testing, a court may take into 

account a defendant's failure to seek DNA testing at trial.  Riofta, 166 Wn.2d at 366 n.1.  

RCW 10.73.170 "does not allow defendants to adopt a 'wait and see' approach.  A 

defendant's failure to request DNA testing at trial of evidence he now claims to be 

exculpatory must be weighed against his claim of probable innocence unless 

circumstances exist to justify the failure."  Riofta, 166 Wn.2d at 368 n.3.

       Here, when making his postconviction motion for DNA testing, the defendant 

claimed that he had sought a continuance at trial to permit DNA testing.  The State 

submitted transcripts from the trial record showing that this claim is false.  Rather, as 

explained, the defendant sought a continuance in order to try to obtain evidence that 

another person allegedly committed the crime, specifically, a copy of a driver's license 

that purportedly would show that its holder fit the description that the defense claimed 
J.S. had provided to the defense investigator.12

       Given that at trial the defendant was willing to seek a continuance to obtain 

evidence that purportedly would have incriminated another individual, it is highly 

significant that the defendant did not seek a continuance for the purpose of DNA testing.  

If he believed that DNA testing would show that he was innocent, presumably he would 

11 As provided in RCW 10.73.170(1), the movant is to submit the motion for DNA testing to the 
court that entered the judgment of conviction.  In this case, the same judge ruled on the motion as 
had presided at Thompson's criminal trial.
12 Even at the time of the postconviction motion, however, the defendant presented no such 
additional evidence suggesting that another person actually committed the crime.

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No. 84739-8

have sought DNA tests that could have exonerated him or at least been exculpatory.13  

Yet, the defendant did not attempt to obtain DNA testing for trial.  His failure to do so 

undercuts his claim that the evidence and DNA testing would establish a likelihood of 

innocence on a more probable than not basis.  It strongly suggests that at trial he knew 

that DNA test results were unlikely, in fact, to have been favorable to his defense.

       In light of the evidence, the trial court properly denied the postconviction motion 

for DNA testing.  Not only is the failure to seek such testing at trial highly significant, 

Thompson's statement that he had sexual intercourse with J.S. is also extremely 

damaging to his motion because DNA testing could not differentiate between rape and 
consensual intercourse.14 Thompson has not carried his burden under RCW 10.73.170(3)

of showing that a DNA test would demonstrate innocence on a more probable than not 

basis.

                                          Conclusion

       The majority imposes an unjustified barrier to considering reliable evidence that is 

relevant to whether a defendant's postconviction motion for DNA testing under RCW 

10.73.170 should be granted.  Neither the statute nor our decision in Riofta supports the 

majority's conclusion that only evidence admitted at trial or newly discovered may be 

considered when assessing a defendant's claim of innocence under the statute.

13 By the time the rape in this case had occurred, DNA testing had been held admissible in criminal 
trials in this state.  See, e.g., State v. Gentry, 125 Wn.2d 570, 888 P.2d 1105 (1995) (filed on 
Jan. 6, 1995); State v. Russell, 125 Wn.2d 24, 882 P.2d 747 (1994); State v. Kalakosky, 121 
Wn.2d 525, 852 P.2d 1064 (1993).
14 It is possible that this is the reason why the defendant did not move for a continuance to obtain 
DNA testing at trial.

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No. 84739-8

       The statute's purpose is to authorize DNA testing where there is a likelihood, on a 

more probable than not basis, that the defendant is actually innocent.  If reliable evidence 

is relevant to this issue, it should be considered.  Otherwise, an inaccurate assessment of 

innocence may occur. I cannot agree with the majority's assertion that consideration of 

such evidence "unduly expands" the statutory inquiry; indeed, an admittedly voluntary 

statement that the defendant committed the acts constituting the crime, as in this case, 

goes to the very heart of the statutory inquiry.

       Riofta never addressed the issue whether evidence that was available but not 

admitted at trial may be considered in deciding a motion under RCW 10.73.170.  Rather, 

Riofta underscores the purpose of the statute to assess a defendant's showing of actual 

innocence, not to assess guilt under the standards that govern criminal trials.

       The majority's narrow view of what may be considered also does not comport 

with principles governing postconviction proceedings, where the defendant's rights are 

not the same as at a criminal trial.

       The statement that the defendant made to the police following his arrest the 

morning after the assault on J.S. is reliable and relevant evidence bearing on whether the 

defendant has made a sufficient showing of innocence.  It was properly considered by the 

court when the court ruled on Thompson's motion for DNA testing.  The court also 

properly considered the fact that the defendant did not seek such testing at trial although, 

at the same time, he did seek a continuance in order to try to obtain other evidence he 

asserted would be exculpatory. The parties presented argument on this point, and the 

                                               20 

No. 84739-8

State submitted part of the trial transcript to authenticate what had occurred at trial.

       After considering the information urged by the defendant, his statement, and the 

circumstances surrounding forensic testing at trial, the trial court acted well within its 

discretion when it denied Thompson's postconviction motion for DNA testing.

       For these reasons, I dissent.  I would reverse the Court of Appeals and reinstate the 

trial court's ruling in this case.

AUTHOR:
        Chief Justice Barbara A. Madsen

WE CONCUR:
                                                         Justice James M. Johnson

                                                         Justice Charles K. Wiggins

        Justice Mary E. Fairhurst

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