United States v. Summers

• Decision Date: 16 December 2011
• Docket Number: No. 06–5009.,06–5009.
• Citation: 666 F.3d 192
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kevin Tyrelle SUMMERS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

666 F.3d 192

UNITED STATES of America, Plaintiff–Appellee,

v.Kevin Tyrelle SUMMERS, Defendant–Appellant.

No. 06–5009.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 23, 2011.Decided: Dec. 16, 2011.

ARGUED: Lauren Elizabeth Case, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Sujit Raman, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Denise C. Barrett, Assistant Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Bryan M. Giblin, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before KING, SHEDD, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge SHEDD joined. Judge FLOYD wrote an opinion concurring in the judgment.

OPINION

KING, Circuit Judge:

Kevin Tyrelle Summers appeals his drug trafficking and firearm convictions, entered in the District of Maryland in accordance with the jury's verdict. Summers contends that the district court erroneously admitted into evidence a jacket recovered from the vicinity of his arrest. He asserts further that the court compounded its error by declining to exclude, on Confrontation Clause grounds, expert evidence concerning DNA testing performed on the jacket, together with evidence documenting the jacket's handling and custody during the testing process. Discerning no reversible error, we affirm.

I.

During the evening of November 18, 2004, Summers, wearing a black North Face-branded jacket, stood with another man near the corner of Glacier Avenue and Fable Street in Capitol Heights, Maryland. Corporal Patrick Hampson, a uniformed detective with the Prince George's County Police Department, emerged from his cruiser to ask the pair about an exchange of gunfire that had occurred shortly before at the intersection. Both men fled, with Summers sprinting down Glacier Avenue past undercover detectives Chad Schmick and Kevin Morris, who were parked at the curb. Summers detoured through a couple of backyards on Kayak Avenue before surrendering to Morris. By then, however, Summers was no longer wearing the jacket.

Hampson and Schmick found a black North Face jacket atop one of the houses along Summers's flight path. Hampson placed the jacket and its contents—a Hi–Point Model C 9mm handgun, eleven rounds of ammunition unloaded from the pistol's clip, and a large packet containing more than ninety grams of crack cocaine—inside separate evidence bags for transport in his cruiser. Hampson filled out property receipts on the items to catalog them and to direct forensic examination.

On March 7, 2005, Summers was indicted for possession with intent to distribute crack, in violation of 21 U.S.C. § 841(a)(1) (“Count One”), and possession of a firearm by a felon, contravening 18 U.S.C. § 922(g) (“Count Two”). A superseding indictment of May 4, 2006, charged Summers with the additional offense of possession of a firearm during and in relation to a drug trafficking crime, conduct proscribed by 18 U.S.C. § 924(c) (“Count Three”).

Following the federal indictment, the county police sent a black jacket to the FBI's Baltimore field office. The jacket was then forwarded to the agency's laboratory in Quantico, Virginia, arriving at the Evidence Control Unit (the “ECU”) on May 11, 2005. The ECU routed the jacket to DNA Analysis Unit 1, where, according to an internal log, it was delivered to storage on May 13, 2005. The log shows that FBI analysts took possession of the jacket on May 18, 2005, to perform DNA testing, then shuttled it back to storage on May 26, 2005, for eventual return to the ECU on October 18, 2005.

At trial, a black jacket was marked for identification as Government's Exhibit 1. Asked whether he recognized the exhibit, Hampson answered that “[i]t looks like the black Northface coat the defendant was wearing.” J.A. 73.¹ Schmick and Morris were rather less equivocal. Schmick confirmed that Exhibit 1 was “the coat that we recovered,” id. at 152, and, when questioned whether the jacket in the courtroom was the one that Summers wore while fleeing, Morris responded simply, “Yes, it was,” id. at 267.

The government's case-in-chief otherwise featured the expert testimony of Brendan Shea, a forensic examiner at the Quantico laboratory who supervises Unit 1's analysts and directs them to perform particular tests on evidence. After identifying Government's Exhibit 1 as the coat submitted to the lab, Shea explained that he had directed his subordinate analysts to conduct two methods of polymerase chain reaction based, short tandem repeat typing on the jacket. The lab also performed DNA typing on buccal swabs taken from Summers's mouth. Shea compared the typing data, testifying that although DNA from at least four different people was found on the jacket, Summers was the major contributor.

Shea documented the typing results and his conclusions in a three-page report. The report contained a table juxtaposing the numerical identifiers of the allele found at corresponding loci of the DNA extracted from the jacket and the buccal swabs, revealing an exact match. Shea stated “to a reasonable degree of scientific certainty” that Summers was the major DNA contributor, statistically calculating the probability of a random match as equal to or less than one in 280 billion. See J.A. 524–25. Shea signed the report, and no other lab employee was named therein or testified at trial. The report was admitted into evidence as Government's Exhibit 25.

The government presented no evidence of the jacket's whereabouts from the time Corporal Hampson placed it in his cruiser until it arrived at the FBI laboratory. While the jacket was at the lab, the internal log documented its movement within Unit 1. The log reflects that four lab employees signed for and took custody of the jacket at different times. Based on the varying legibility of their signatures, some of the employees' identities are more susceptible than others of being ascertained. It is clear, however, that none of them were Shea, though he did initial the log at its bottom right corner. See J.A. 200. The log was admitted into evidence as part of Defendant's Exhibit 3.

On cross-examination, Shea acknowledged that he could not confirm that the jacket he tested was the one that Hampson recovered. Though verifying the authenticity of the log, Shea could only speak in generalities concerning the jacket's safekeeping during the time that it was housed at the lab, testifying that the jacket would have been subjected to the standard routing and inventory process. Arguing to the jury at closing, defense counsel emphasized Shea's concession: “Brendan Shea told you, six or seven months, I don't know what happened to that jacket. I can't tell you that that jacket is the same jacket that was allegedly pulled off of Kevin Summers.” J.A. 504–05.

Counsel's argument ultimately failed to persuade the jury, which found Summers guilty of the drug and firearm possession charges underlying Count One and Count Two. The jury acquitted Summers on Count Three, concluding that he did not, beyond a reasonable doubt, possess the firearm during and in relation to a drug trafficking crime. The district court entered judgment on the jury's verdict, sentencing Summers to 262 months in prison, followed by five years of supervised release. Summers timely noted this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review for abuse of discretion a trial court's decision concerning the admissibility of evidence. See United States v. Myers, 589 F.3d 117, 123 (4th Cir.2009). We will not adjudge the court to have abused its discretion unless its ruling was “arbitrary and irrational.” See United States v. Haney, 914 F.2d 602, 607 (4th Cir.1990). We review de novo, however, an evidentiary ruling implicating the Confrontation Clause. See United States v. Williams, 632 F.3d 129, 132 (4th Cir.2011). Finally, we review for abuse of discretion a trial court's determination that an evidentiary item's chain of custody has been sufficiently established. See United States v. Ricco, 52 F.3d 58, 61 (4th Cir.1995).

III.

The Sixth Amendment affords a criminal defendant “the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. Summers maintains that he was convicted by the testimony of witnesses whom he was not permitted to cross-examine, in derogation of the Confrontation Clause. According to Summers, the government was constitutionally compelled to produce at trial the laboratory employees who signed the internal log, along with the subordinate analysts who actually conducted the DNA typing upon which Shea's expert conclusions were premised.

A.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court unanimously ruled that the defendant's Confrontation Clause rights had been violated by the admission into evidence of his nontestifying wife's statement to the police. The opinion of the Court, authored by Justice Scalia, overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had permitted statements of unavailable witnesses to be admitted at trial insofar as they bore “adequate indicia of reliability,” meaning that they satisfied a “firmly rooted hearsay exception” or were otherwise bolstered by “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531.

Crawford changed the law to condition the admission of such statements on (1) the witness being unavailable at trial, and (2) the defendant having had the prior opportunity to cross-examine the witness. Crawford applies whenever “testimonial evidence is at issue.” 541 U.S. at 68, 124 S.Ct. 1354. Inasmuch as it was the result of formal police interrogation, the evidence at issue in...