Derr v. State

Decision Date22 August 2013
Docket NumberSept. Term, 2010.,No. 6,6
Citation434 Md. 88,73 A.3d 254
PartiesNorman Bruce DERR v. STATE of Maryland.
CourtMaryland Court of Appeals

OPINION TEXT STARTS HERE

Stephen B. Mercer, Chief Attorney, Forensics Division (Paul B. DeWolfe, Public Defender, Baltimore, MD; William G. McLain III of David A. Clark School of Law, University of the District of Columbia, Washington, DC), on brief, for appellant.

Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for appellee.

Argued before HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, BELL *, JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

GREENE, J.

On June 29, 2006, Appellant, Norman Bruce Derr (“Derr”), was convicted of multiple sexual offenses in the Circuit Court for Charles County. On appeal to the Court of Special Appeals, Derr challenged his conviction and presented five questions for review. Prior to the intermediate appellate court's rendering a decision in the case, this Court granted certiorari on its own motion, 411 Md. 740, 985 A.2d 538 (2009), to address the questions raised by Derr: 1,2

1. Whether [Norman] Derr's federal and state constitutional rights of confrontationwere violated when the State was permitted to introduce the opinion of a serology examiner and the results of DNA [deoxyribonucleic acid] testing of biological evidence through the testimony of an expert who did not participate either directly or in a supervisory capacity in the testings, without calling the analysts who performed the testings as witnesses or showing that the analysts were unavailable and that [Norman] Derr had a prior opportunity to cross-examine them?

[434 Md. 97]2. Whether [Norman] Derr's constitutional and statutory rights to discovery necessary to prepare a defense to scientific evidence were violated when the State used a statistical method to describe the rarity of a DNA profile that did not quantify the chance of a coincidental match caused by the trawl of a DNA database and [Norman] Derr was denied access to the number of coincidental matches contained in the database, where the coincidental match number was required to demonstrate the limitation of the State's chosen statistic?

3. Whether a “match” derived from a trawl of a DNA database, the significance of which was described by the State with a statistic that did not account for laboratory error or the chance of a coincidental match caused by the trawl of a DNA database, was sufficient evidence to sustain [Norman] Derr's convictions in the absence of any other evidence that corroborated his identification as the perpetrator of the offenses?

4. Whether the court erred when it refused to instruct the jury on the meaning of the term “reasonable degree of scientific certainty” when the State's expert used that term before the jury to characterize her opinion that [Norman] Derr was the source of DNA evidence?

Following remand, supplemental briefing, and oral argument in this Court, we affirm the judgment of the Circuit Court and conclude: (1) Derr's right of confrontation was not violated when the State's expert witness presented the results of forensic tests 3 as the basis for her conclusion that Derr was the source of the deoxyribonucleic acid (“DNA”) found on the vaginal swabs taken from the rape victim; (2) Derr's statutory and constitutional rights to discovery were not violated by the trial judge's refusal to order the State to conduct a search for coincidental matches in the Federal Bureau of Investigation's Combined DNA Index System (“CODIS”); (3) the evidence presented during trial was legally sufficient to sustain Derr's conviction; and (4) the trial judge did not err when she refused to include Derr's proposed jury instruction on the definition of “reasonable degree of scientific certainty.”

FACTUAL BACKGROUND

Derr was indicted with multiple sexual offenses relating to an attack and rape of a woman in Charles County, Maryland in December 1984. After the sexual assault, the victim was transported to the hospital where she was examined by medical personnel. In the process of collecting biological evidence, medical personnel used a “rape kit” 4 to collect, among other things, a blood sample, a genital swab, two vaginal swabs, and an anal swab from the victim. Additionally, the victim was interviewed by officers from the Charles County Sheriff's Office (“Sheriff's Office”) and the victim assisted them in creating a composite sketch of the attacker from her memory.

The physical evidence collected, including the rape kit, was sent to the Federal Bureau of Investigation (“FBI”) laboratory for serological testing. In 1985, a serological examiner identified sperm and semen on parts of the swabs and detailed the findings in serological examination notes. Despite the testing and investigation, the case remained unsolved and became inactive.

In 2002, the Sheriff's Office submitted the rape kit to the FBI laboratory for additional forensic analysis. The laboratory generated a DNA profile of the suspect, consisting of thirteen genetic markers (thirteen “loci”), from the DNA in the biological material on the vaginal swabs. This profile was entered into the FBI's national database in CODIS.5 In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 from the rape kit. The Sheriff's Office obtained a search warrant to seize additional DNA from Derr through a buccal swab,6 which was sent to the FBI laboratory in order to create a new “reference DNA sample” and to verify that Derr's profile in CODIS was accurate. In September 2004, the Charles County Grand Jury returned an indictment charging Derr with five counts of sex-related crimes. In 2006, the State, pursuant to a warrant, collected buccal swabs from Derr's two brothers, from which the FBI laboratory derived DNA profiles.

In June 2006, Derr was tried before a jury in the Circuit Court for Charles County. On June 29, 2006, the jury found Derr guilty of first and second degree rape and first and second degree sexual offense, but not guilty on two counts of third degree sexual offense. Derr filed a timely appeal to the Court of Special Appeals. This Court granted certiorari on its own motion prior to any decision by the Court of Special Appeals. See Derr v. State, 411 Md. 740, 985 A.2d 538 (2009).

We now turn to the trial court proceedings. At trial, the State called a number of witnesses, including: the victim; the nurse who performed much of the victim's examination; Derr's two brothers; and a number of law enforcement officers who participated in investigating the rape and collecting and handling the forensic samples taken from the victim, Derr, and Derr's brothers. Additionally, through its witnesses, the State offered, and the court received into evidence, among other things, a composite sketch of the victim's attacker and the rape kit. Further, after the parties stipulated that they were fair and accurate depictions of Derr in 1982 and 1986, the court accepted into evidence photographs of Derr.

Additionally, the State called Jennifer Luttman (“Luttman”), a forensic DNA examiner for the FBI, who was accepted as an “expert in forensic serology and forensic DNA analysis.” In her testimony, Luttman provided background information about DNA, how it is analyzed and how DNA profiles are created, and how those profiles are used by the FBI to find the source of a DNA sample. Additionally, Luttman testified that DNA testing is performed by teams consisting of examiners, serologists, and DNA biologists.

After providing background information, Luttman testified about the present case. Luttman testified that her role was to do comparisons between known and unknown DNA samples, do the statistical calculations and write a report; that her “team” participated in the actual analysis of some of the DNA, but not all of the DNA, in the case; and that she reached her conclusions after reviewing the “bench work” 7 of both the DNA analysis conducted by her team and that which was performed by analysts that she did not supervise.

Over Derr's objection, Luttman identified and explained the DNA profiles from the 2006 DNA tests of the biological material taken from Derr's brothers, noting both that the DNA profiles were developed from the testing by Luttman's “team” and that she only needed to identify information from nine, rather than thirteen, loci because it provided enough information to exclude Derr's brothers as possible sources of the DNA found on the vaginal swabs. Luttman testified about the DNA profile produced in 2004 from the DNA sample taken from Derr and, over objection, the profile was introduced into evidence. In addition, also over Derr's objection, Luttman introduced the results of the 2002 DNA testing on the pieces of biological evidence in the rape kit. And, over objection, the profiles developed from the 2002 DNA test were entered into evidence.

Luttman, additionally, testified about how the FBI determines the rarity of a DNA profile using the “product rule.” Luttman explained that this approach entails “basically ... multiplying the frequencies across all [thirteen loci] to get the probability of selecting someone at random from the general population that would have the same DNA that's found on the evidence.”

Finally, Luttman presented her conclusions. First, she stated that the DNA taken from the vaginal swabs, analyzed in 2002, matched the DNA taken from Derr's buccal swab, analyzed in 2004 “at all 13 DNA locations.” She further testified that, although the tests on the biological material from the anal and genital swabs did not produce readings at all thirteen loci, the readings the tests did produce matched the DNA profile from Derr's sample. Then, over objection, Luttman testified that [t]he probability of selecting an unrelated individual from the general population that would have the same DNA profile that was found on the [vaginal swabs] was more than one in a...

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