Derr v. State
| Decision Date | 24 October 2011 |
| Docket Number | 2010.,No. 6,Sept. Term,6 |
| Citation | 29 A.3d 533,422 Md. 211 |
| Parties | Norman Bruce DERRv.STATE of Maryland. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HEREWest CodenotesUnconstitutional as AppliedMd.Rule 5–703 Stephen B. Mercer, Assigned Public Defender, Rockville, MD (William G. McLain of David A. Clark School of Law, University of the District of Columbia, Washington, D.C.), on brief, for appellant.Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for appellee.Prof. Aderson B. Francois, Prof. Josephine Ross, Jamell Hamm, Dorianne Mason, Joy Mukoro, Amanda Zubiate, Prof. Brian Gilmore, Howard University School of Law, Clinic Law Center, Washington, D.C., for Amicus Curiae brief of Bruce A. Jackson, John F. Terzano, The Howard University School of Law Criminal Justice Clinic and Civil Rights Clinic.Cynthia Boersma, Esq., American Civil Liberties Union of Maryland, Baltimore, MD, Teresa Ann Alutto, Esq., Jennifer L. Bragg, Esq., Washington, D.C., for Amicus Curiae brief of American Civil Liberties Union of Maryland.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and 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, Derr challenges the admission of forensic evidence introduced at trial through the testimony of an expert witness who did not take part in or observe the physical testing of the evidence, or independently determine the test results. In the Court of Special Appeals, Derr presented the following questions for review: 1
1. Whether Derr's federal and state constitutional rights of confrontation were violated when the State was permitted to introduce the opinion of a serology examiner and the results of DNA testing of biological evidence through the testimony of an expert who did not participate either directly or in a supervisory capacity, without calling the analyst who performed the testing as a witness or showing that the analyst was unavailable and Derr had a prior opportunity to cross-examine? 2
2. Whether Derr's constitutional and statutory rights to discovery 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 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 was sufficient evidence to sustain 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 phrase “reasonable degree of scientific certainty”?
We shall answer the first question in the affirmative. In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause.3
ACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2004, Norman Bruce Derr was charged with multiple sexual offenses relating to the rape of Alida Berman on December 9, 1984. 4 At the time of the rape, the victim was transported to Physicians Memorial Hospital where she was examined by a nurse and a physical evidence recovery kit (PERK) was used to collect biological evidence. Using the PERK, the nurse collected a genital swab, two vaginal swabs, and an anal swab. The physical evidence was taken to the FBI crime lab for serological testing, which was performed by the lab technician who was a serological examiner. In 1985, the serological examiner conducted serological testing, identified sperm and semen on parts of the swabs, and detailed his findings in a serological report. Despite the testing and other investigation, the case remained unsolved and became inactive.
Seventeen years later, in 2002, a detective reviewed the case and submitted the PERK to the FBI crime lab for forensic analysis. Dr. Maribeth Donovan, an FBI DNA analyst, performed the DNA analysis of the biological evidence. A DNA profile of the suspect, consisting of thirteen genetic markers, was generated from the DNA on the vaginal swabs. This profile was entered into a national database containing 2.5 million DNA profiles, referred to as the Combined DNA Identification System (CODIS). In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 by Dr. Donovan. The State then obtained a search warrant to seize additional DNA from Derr, in order to create a new “reference DNA sample” and to verify that Derr's profile in CODIS was accurate. The testing of the new sample was performed by an unnamed team of biologists and supervised by Dr. Jennifer Luttman, a DNA analyst with the FBI, in 2004. Upon interpretation of the biologists' results, Dr. Luttman determined that the reference sample matched Derr's profile in CODIS. Dr. Luttman was not, however, involved with the 1985 serological testing or the 2002 DNA testing of the PERK that resulted in the DNA profile of the alleged assailant. Further, Dr. Luttman did not perform the actual DNA testing in 2004, but rather merely “supervised” or reviewed her team's analysis, with no indication that she observed the “bench work” 5 at the time it was performed by her team. Based on the match between Derr's CODIS profile and the DNA profile obtained from the DNA analysis of the evidence, Derr was arrested and charged with the crimes mentioned.
The defense filed preliminary motions in the Circuit Court for Charles County challenging the admission of Dr. Luttman's proposed testimony. Two hearings were held in limine to determine whether the State could introduce the opinion of the serological examiner and the results of the PERK analysis solely through the use of “surrogate testimony,” with Dr. Luttman as the surrogate. The term “surrogate testimony” refers to expert testimony rendered by a lab supervisor, rather than by the analyst who performed the tests. Derr argued that he had a right under the Confrontation Clause to confront and cross-examine the original analysts. The Circuit Court ruled that the serological report was not testimonial and was, therefore, admissible through Dr. Luttman under the business records exception to the hearsay rule 6 and under Maryland Rule 5–703 7 as the basis of Dr. Luttman's expert opinion. The court also ruled that, while the opinion of the DNA analyst from 2002 was testimonial, the underlying analysis of the DNA was nontestimonial and was admissible both as a business record and as the basis of Dr. Luttman's opinion. At trial, the State did not request that Mrs. Berman, the alleged victim, make an in-court identification of Derr or identify him as the assailant based on photos of Derr taken in 1982 and 1986, which were entered into evidence. The State also did not call the serological examiner or Dr. Donovan, the FBI DNA analyst who performed the 2002 DNA testing, to connect Derr to the results of the investigation in this case.
Instead, the State relied solely on testimony from Dr. Luttman, who was accepted by the court as an expert in the fields of forensic serology and forensic DNA analysis, and who was permitted to testify regarding the 1985, 2002, and 2004 testing results. During her testimony, Dr. Luttman explained the procedure for identifying sperm and semen, as well as the procedure for creating a DNA profile. Dr. Luttman also testified regarding the opinion of the 1985 serologist and the DNA testing procedures and results of the 2002 test. She testified that it was her opinion, based on the tests conducted, that Derr's DNA profile matched that of the suspect. She supported her opinion by stating it was based on a “reasonable degree of scientific certainty.” The jury found Derr guilty of four counts relating to the sexual assault of Mrs. Berman.8 Derr filed a timely appeal to the Court of Special Appeals. Appellate argument in the intermediate appellate court was deferred while the Supreme Court of the United States considered Melendez–Diaz v. Massachusetts, 557 U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ( Melendez ). Subsequently, this Court granted certiorari on its own motion, prior to the Court of Special Appeals rendering a decision in the case.
DISCUSSION
In order to determine the application of Confrontation Clause principles to a DNA case, a brief explanation of the tests performed and the procedures followed is necessary. In describing the science of DNA evidence, we have said:
Deoxyribonucleic acid (‘DNA’) is the organic material that provides the genetic instructions for all...
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