Young v. United States, 10–CF–1001.

• Citation: 63 A.3d 1033
• Decision Date: 04 April 2013
• Docket Number: No. 10–CF–1001.,10–CF–1001.
• Parties: Robert C. YOUNG, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

63 A.3d 1033

Robert C. YOUNG, Appellant,

v.UNITED STATES, Appellee.

No. 10–CF–1001.

District of Columbia Court of Appeals.

Argued Sept. 25, 2012.

Decided April 4, 2013.

Jessica Brand, Public Defender Service, with whom James Klein and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and David A. Last, Assistant United States Attorney, were on the brief, for appellee.

Before GLICKMAN, BLACKBURNE–RIGSBY, and OBERLY, Associate Judges.

GLICKMAN, Associate Judge:

After a jury trial, appellant Robert Young was convicted of kidnapping and rape based on an FBI examiner's testimony that his DNA profile matched the DNA profile of the rapist. On appeal, Young argues that the trial court committed reversible error under the Confrontation Clause of the Sixth Amendment when it allowed the government to present this testimony without calling as witnesses the laboratory scientists who derived and identified the two DNA profiles and performed the calculations on which the testifying examiner based her conclusions. In addition, Young contends that the court abused its discretion in denying his motion to compel discovery of the frequency of profile matches and near-matches in the government's DNA database. We agree with Young's first claim but not his second.

I. Factual Background

A.

In the afternoon of October 11, 2006, Carmen Villatoro was assaulted in her apartment building in Northeast D.C. Her assailant, whom she did not know, dragged her down to the basement, forced her to perform oral sex, and attempted to penetrate her vaginally. After finding himself unable to penetrate her fully, he left.

Ms. Villatoro immediately went up to her apartment and spit the semen she had in her mouth into a tissue, which she tossed in a trash can. Her family called the police. Villatoro had avoided looking directly at her assailant's face, but she was able to describe him to a detective as a six-foot-tall black man with big lips and thick eyebrows. She later added that he had a broken tooth. The police collected the contents of the trash can and other evidence from the scene of the crime. Villatoro was taken to a hospital, where a sexual assault nurse examined her and took swabs from her mouth and vagina. The swabs and the contents of the trash can were sent to an FBI laboratory in Quantico, Virginia, for DNA testing and analysis.

A team of scientists at the FBI lab reportedly derived a male DNA profile—the profile, presumably, of Villatoro's attacker—from her vaginal swabs and entered it into the FBI's database of offender DNA profiles. In November 2007, a CODIS ¹ search resulted in a “cold hit,” i.e., a match between the derived DNA profile and one of the many DNA profiles stored in the database. That stored profile was Young's, and this was how he was identified as a suspect in the Villatoro rape investigation.² Eventually, in 2009, D.C. police obtained a buccal tissue sample from Young and submitted it to the FBI lab for analysis.³ The lab reported that a DNA profile generated from the buccal sample matched the DNA profile created at the lab of Villatoro's assailant. An indictment was returned against Young a few months later.

Prior to the start of his trial, Young moved the court pursuant to Criminal Rule 16⁴ to direct the government to search the National DNA Index System (“NDIS”) and determine the frequency of DNA profile matches between unrelated people in the database. Young wanted this data in the hope of being able to rebut the government's DNA evidence against him by showing that matches are more common, and hence less probative of identity, than is generally believed. The court denied the request on the primary ground that the information Young sought would not be material and, secondarily, because his request was untimely in any event.

B.

The government presented its DNA evidence at Young's trial through the testimony of a single witness: Rhonda Craig, the FBI examiner who had compared and matched the DNA profiles generated from the buccal sample and the crime scene evidence. Young objected that the admission of Craig's testimony would violate his Sixth Amendment right to be confronted with the witnesses against him because she herself had not done the testing or produced those results. After hearing Craig's testimony, the trial court overruled Young's objection.

Craig was qualified as an expert in forensic serology and DNA analysis. She testified that she supervises five FBI serologists and biologists who follow written testing procedures and National Quality Assurance Standards applicable to “all forensic DNA testing laboratories” in order to isolate DNA from evidentiary source materials and generate DNA profiles that she then compares and interprets.⁵ Craig said the FBI lab personnel carefully record their handling of evidence on “chain of custody documentation” that follows the evidence “throughout the laboratory” from the moment the evidence is received. When a DNA profile of an unknown person derived from an evidentiary source is found to match the profile of a suspect, lab personnel use a specialized computer program known as “PopStats” to calculate the random match probability or “RMP.” This is the probability, Craig stated, that a randomly selected, unrelated person in a given population group would have the same DNA profile as the evidentiary sample (assuming that the unrelated person was not in fact the source of the DNA in the sample).⁶ Under FBI guidelines, a RMP of one in six trillion or lower allows the examiner to opine to a reasonable degree of scientific certainty that the suspect was the source of the evidentiary DNA. ⁷

Craig described the evidentiary submissions that the FBI laboratory received and tested for DNA in order to identify Villatoro'sassailant. These submissions included Villatoro's vaginal swabs and the tissue containing her attacker's semen that Villatoro deposited in her trash can, which the lab acquired in 2006, and the buccal swab taken from Young, which the lab received in 2009.⁸ Craig testified that she had compared a DNA profile of Young created by her staff from his buccal swab with a male DNA profile derived at the lab from Villatoro's vaginal swabs. Craig found that the two profiles matched at all thirteen loci. She next compared Young's profile with a male DNA profile that the lab developed in 2010 from the tissue recovered from Villatoro's trash.⁹ Again, Craig testified, there was a thirteen-loci match.¹⁰ A lab employee then ran the DNA profile on the PopStats program. The printouts, Craig testified, showed a random match probability in the African–American population of one in 2.8 quintillion and even lower probabilities of a match in other populations.¹¹ Because the probability of a random match was so low, Craig opined that, to a reasonable degree of scientific certainty, Young was the source of the male DNA in Villatoro's vaginal swabs and tissue.

Craig acknowledged in the course of her testimony that she did not personally perform the DNA testing and computer analysis that generated the DNA profiles she compared and the RMP she reported. Nor did Craig claim that she personally observed the receipt and handling of the evidence and the performance of the lab work preparatory to the DNA testing. Thus, when she informed the jury that the DNA profiles she examined were derived from the vaginal swabs and tissue furnished by Villatoro and the reference sample supplied by Young, Craig was not testifying from personal knowledge of those facts. Rather, she was relaying information provided by her subordinates through their documentation and identification of their work product. Similarly, in testifying to the RMP, Craig relayed information provided to her by the lab employee who ran the PopStats program. And in testifying to the sealed condition of the physical evidence when it was received by the lab, she relayed information recorded by the evidence control unit. In other words, all Craig could say from personal knowledge was that she compared electropherograms and they matched; she could not say from personal knowledge whose electropherograms they were or how they were derived.¹²

C.

In a post-verdict motion for a new trial, Young renewed his claim that Craig's testimony was admitted in violation of the Confrontation Clause because it was

based on the work that other, non-testifying witnesses performed. Ms. Craig had no personal knowledge of the DNA extractions or analysis that occurred prior to her reviewing the computer generated data at the end of the process. Indeed, Ms. Craig had no personal knowledge of the random match probability calculation that formed the basis of her conclusion that Mr. Young was the source of the evidence sample DNA. Nevertheless, Ms. Craig repeatedly testified regarding work that others had done and conclusions that others had reached.

The court denied the motion in a written order, concluding that the Sixth Amendment “does not demand that a testifying expert perform the lab work herself[;] rather an expert may testify about laboratory reports prepared by a different lab technician so long as the testifying expert performs an independent analysis of the data and reaches her own conclusions.”

II. Confrontation

A.

In Crawford v. Washington, the Supreme Court held that the Confrontation Clause of the Sixth Amendment bars the prosecution from introducing “testimonial” hearsay of an absent witness against a defendant at trial unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine him.¹³ Forensic evidence, including DNA analysis, is not exempt from Crawford's holding; the Supreme Court has rejected arguments that the requirement of confrontation should be relaxed for testimonial...