Gardner v. United States, No. 07-CF-573.

• Decision Date: 08 July 2010
• Docket Number: No. 07-CF-573.
• Citation: 999 A.2d 55
• Parties: Eric R. GARDNER, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

999 A.2d 55

Eric R. GARDNER, Appellant,v.UNITED STATES, Appellee.

No. 07-CF-573.

District of Columbia Court of Appeals.

Argued Feb. 2, 2010.

Decided July 8, 2010.

Sloan S.J. Johnston, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant.

John P. Mannarino, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, Roy W. McLeese III, and Michelle D. Jackson, Assistant United States Attorneys, were on the brief, for appellee.

Before KRAMER and OBERLY, Associate Judges, and PRYOR, Senior Judge.

KRAMER, Associate Judge:

Appellant Eric Gardner appeals from his convictions for first-degree felony murder while armed, second-degree murder while armed, attempted robbery while armed, two counts of possession of a firearm during a crime of violence (“PFCV”), and one count of carrying a pistol without a license (“CPWL”). Appellant argues that the admission of the results of forensic DNA and serology testing through a DNA laboratory report and forensic expert testimony violated his Sixth Amendment right to confront witnesses against him because he was unable to cross-examine the forensic scientists who actually performed the tests. We agree that the admission of the DNA report and the testimony of both experts was error. We conclude that the errors were not harmless beyond a reasonable doubt and reverse.

I. Factual Background

Andrew Kamara, a fifty-year-old D.C. taxi driver, was shot to death while driving his cab during the night of November 12, 2004. At trial, the government's theory was that appellant had been a passenger in Kamara's cab when he shot and killed Kamara in an attempted robbery. The evidence presented at trial showed that Metropolitan Police Department (MPD) officers responded to the scene and obtained a description of events from Mary Ball, a neighborhood resident. Ball reported hearing a loud crash as Kamara's cab struck a nearby parked car, and seeing a “tall lean and young” man wearing a dark jacket “running from the cab.” MPD officers then canvassed the area for a man matching Ball's description, beginning with the Motel 6 because of its proximity to the scene and the officers' belief that the motel “would be a prime spot for someone to go hide if they had just, in fact, committed a crime.”

At the Motel 6, the front desk clerk confirmed that a man wearing dark clothing had quickly walked through the lobby to Room 114 fifteen minutes prior to the officers' arrival. The clerk, however, did not see the man's face and did not identify appellant as the man he saw. While some of the officers were staking out Room 114, an officer posted outside the motel saw appellant climb out of the window of Room 114 and drop a “black object” to the ground. Appellant attempted to flee as soon as he spotted the officer. Officers quickly caught and arrested appellant, and then secured the dropped objects by placing a cotton-lined plastic police blanket over the evidence to protect it until it could be collected. The evidence turned out to be a jacket, a black handgun, and a boot. The officer who identified the objects testified that she did not see any blood on appellant's jacket, but added that “[she] wasn't looking for it.”

Ballistics testing revealed that the gun appellant had dropped from the motel window was not the gun used to shoot Kamara. The day after the shooting, MPD officers did find the murder weapon hidden under a porch in a nearby alley. No fingerprints were retrieved from the gun that killed Kamara, but the government attempted to link this gun with appellant's gun by proving that both guns contained “reloaded” ammunition produced using the same reloading tool. ¹ The MPD ballistics expert, however, diminished the significance of this link by testifying to the fact that there are between 200 and 1,000 commercial manufacturers of reloaded ammunition in the United States, that reloaded ammunition is sold at “almost any store that sells firearms,” and that a single reloading tool can be used on “tens of thousands” of cartridges, marking each casing in the same way.

Further investigation revealed that appellant's jacket had a smear of blood on it. Serology and DNA test results on the smear concluded that the victim could not be excluded as a “possible predominant contributor” to the DNA mixture found on the jacket. The DNA expert testified that the likelihood of a coincidental match was 1 in 6.3 billion (nearly the population of the world). At trial, the government admitted the DNA test report into evidence and presented the expert testimony of Dr. Robin Cotton, a representative of Orchid Cellmark (“Cellmark”), a private forensic laboratory with an FBI contract for DNA testing and analysis, and Ms. Caroline Zervos, an FBI serology analyst. The government did not, however, present the testimony of any of the scientists or analysts who conducted the serology testing at the FBI or the DNA testing at Cellmark.

To rebut the forensic evidence at trial, defense counsel suggested that the investigating officers may have inadvertently contaminated appellant's jacket with the victim's blood. In support of this theory, counsel highlighted the fact that there was only a small amount of blood on appellant's jacket, despite the immense amount of blood at the crime scene; the fact that the cotton lining of the police blanket did not have any blood on it despite the fact that it covered the jacket for some time and was pressed down upon the jacket by rainfall; and the fact that the same officers who “handled the plastic bag containing Mr. Kamara's bloody clothing” secured and collected the jacket. Before going to trial, appellant filed a motion in limine to preclude the government's proposed DNA expert, Dr. Robin Cotton, from testifying about the DNA test results obtained by another forensic scientist on Sixth Amendment Confrontation Clause grounds.² This motion was denied.³

Lastly, Lawrence Pryor, appellant's temporary cell-mate at the D.C. Jail, testified at trial for the government. He testified that appellant confessed to shooting a man after attempting to rob him, and that appellant admitted that the victim's blood had gotten on his jacket. Pryor was impeached with his incentives for testifying. He conceded that he had initiated the conversations with appellant and that he reached out to the prosecutor in search of a deal. In exchange for his testimony, Pryor was transferred to a better jail, all pending charges of first-degree murder, PFCV and CPWL against him were dropped, he pled guilty to a single count of second-degree murder, and his sentence was thus reduced from a maximum of eighty years in prison to forty years with no mandatory minimum. Pryor admitted that he testified in this case, as well as in another case, in hopes that he would obtain a better sentence, and he acknowledged that the government has sole discretion to decide whether he had provided “substantial assistance.”

Appellant was convicted and sentenced to forty years of incarceration and eight years of supervised release. This appeal followed.

II. Standard of Review

Where a statement is admitted into evidence in violation of the Confrontation Clause of the Sixth Amendment and the error was objected to below, we review the error for harmlessness beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also Lewis v. United States, 938 A.2d 771, 782 (D.C.2007). We have found constitutional error harmless where the government presented “overwhelming evidence of guilt” or “it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Smith v. United States, 966 A.2d 367, 391 (D.C.2009) (quoting Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) and Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)) (internal quotation marks omitted).

III. Legal Analysis

The government concedes that the conclusions set forth in the DNA and serology reports were “testimonial” under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).⁴ The government further concedes that the admission of these results, either through the admission of the DNA report or the expert testimony, violated appellant's rights under the Confrontation Clause of the Sixth Amendment because the scientists who actually conducted the testing were not available for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. 1354; Roberts, supra note 4, 916 A.2d at 938. Thus, all of the experts' explicit references to the testing analysts' conclusions violated appellant's Sixth Amendment Confrontation rights. Nonetheless, the government contends that it was proper for both experts to testify in reliance upon the inadmissible information in the reports, namely the analysts' conclusions, and that the experts' “independent analyses” were thus admissible. The government also argues that any error in the admission of the DNA report and the scope of expert testimony was harmless beyond a reasonable doubt.

A. Admission of DNA Testing Results through Dr. Cotton's Testimony and of Serology Testing through Dr. Zervos's Testimony was Constitutional Error ⁵

At trial, Dr. Cotton testified regarding the results of DNA testing of the blood smear on appellant's jacket, a swab from appellant's face, and a swab from the murder weapon. Dr. Cotton did not perform the DNA testing herself and she did not supervise the analyst who performed the testing. In fact, Dr. Cotton worked in a lab in Maryland, but the tests were conducted in Texas. Dr. Cotton's only involvement in this case was the “technical review” of the case file and lab report after it was mailed to her. Dr. Zervos, who did not conduct or supervise testing,...