Derr v. State

• Decision Date: 22 August 2013
• Docket Number: No. 6,6
• Parties: NORMAN BRUCE DERR v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

NORMAN BRUCE DERR v. STATE OF MARYLAND

No. 6

COURT OF APPEALS OF MARYLAND

September Term, 2010

Filed: August 22, 2013

Norman Bruce Derr v. State of Maryland, No. 6, September Term 2010, Opinion by Greene, J.

CRIMINAL LAW - CONFRONTATION CLAUSE - SURROGATE TESTIMONY

Under Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), Petitioner's right of confrontation under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights was not violated when the State's expert witness presented to the jury the results of forensic tests that she neither performed nor witnessed as the basis for her conclusion that Petitioner was the source of DNA extracted from evidence collected.

CRIMINAL LAW - DISCOVERY - BRADY AND MARYLAND RULE 4-263

Petitioner has provided no authority for concluding that either his constitutional right to discovery, as defined by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and its progeny, or Maryland Rule 4-263, require the State to either: (1) conduct research that could potentially produce helpful discovery that is not currently in the possession of the State, or any party acting on its behalf; or (2) allow defense counsel access to the information in the FBI's Combined DNA Index System (CODIS) national database.

CRIMINAL LAW - SUFFICIENCY OF EVIDENCE

The State presented enough evidence during its case-in-chief for a rational trier of fact to conclude beyond a reasonable doubt that Petitioner committed the crimes for which he has been convicted. Any deficiencies in the statistical methodology underlying the State's expert witness's conclusion that Petitioner was the source of the DNA found on the evidence taken from the rape victim goes to the weight of the evidence not its sufficiency.

CRIMINAL LAW - JURY INSTRUCTION

Because the jury instructions given fairly covered the same matter as Petitioner's requested instruction, the trial judge did not commit error in denying Petitioner's requested jury instruction.Harrell

Battaglia

Greene

Adkins

McDonald

^* Bell

Eldridge, John C. (Retired, Specially

Assigned),

JJ.

Opinion by Greene, J.

Adkins and McDonald, JJ., concur.

Bell, C.J. and Eldridge, J. dissent.

^* Bell, C.J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

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 confrontation were 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?

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 tests³ as the basis for her conclusion that Derr was the source of the deoxyribonucleic acid ("DNA") found onthe 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 examineridentified 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 indictmentcharging 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 itis 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...