Leidig v. State

CourtCourt of Special Appeals of Maryland
Citation256 A.3d 870,475 Md. 181
Decision Date05 August 2021
Docket NumberNo. 19, Sept. Term, 2020,19, Sept. Term, 2020
Parties James Matthew LEIDIG v. STATE of Maryland

475 Md. 181
256 A.3d 870

James Matthew LEIDIG
STATE of Maryland

No. 19, Sept. Term, 2020

Court of Appeals of Maryland.

August 5, 2021

Argued by Brian L. Zavin, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Jer Welter, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J.; McDonald, Watts, Hotten, Getty, Booth and Biran, JJ.

Biran, J.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides a criminal defendant with the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. Article 21 of the Maryland Declaration of Rights, which predates the Sixth Amendment by more than a decade, similarly provides that, "[i]n all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him; ... [and] to examine the witnesses for and against him on oath." Md. Decl. of Rts. art. 21. For the past several decades, this Court has read the Sixth Amendment and Article 21 as providing equivalent confrontation rights to criminal defendants in Maryland.

256 A.3d 872

In this case, we consider whether to adhere to that approach.

In 2004, the Supreme Court decided the groundbreaking case of Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in which the Court held that an out-of-court "testimonial statement" of a witness who does not testify at trial is admissible under the Confrontation Clause of the Sixth Amendment "only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S.Ct. 1354. Crawford involved a tape-recorded statement to police by a witness in which she described a stabbing. There was no dispute that the witness's statement was "testimonial."

In a trio of cases over the next decade, the Supreme Court considered the applicability of Crawford to forensic test results. The last of those cases, Williams v. Illinois , 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), resulted in a fractured decision, and revealed that there was not a majority position on the Supreme Court concerning the minimum requirements for a forensic test report to qualify as testimonial. In the nine years that have passed since the Court decided Williams , the lower federal courts and many state appellate courts (including this Court) have struggled to apply Williams to various fact patterns involving forensic reports. The appeal presently before us illuminates the difficulties inherent in applying the Supreme Court's confrontation jurisprudence in cases involving scientific evidence.

In the Circuit Court for Washington County, Petitioner James Matthew Leidig was indicted by a grand jury on charges of first-, third-, and fourth-degree burglary, theft, and malicious destruction of property. A police officer who responded to the scene of the reported burglary discovered broken glass around the window that appeared to be the burglar's point of entry. The officer swabbed what he suspected was the burglar's blood from the window frame and a curtain. Molly Rollo, a forensic scientist with the Maryland State Police, subsequently conducted a serological examination and deoxyribonucleic acid (DNA) analysis of the samples. She then produced a report in which she concluded that blood was indicated on the swabs, and that the DNA source of the blood samples taken from both the window frame and the curtain was one male contributor. Ms. Rollo's report provided a DNA profile for that male contributor. A subsequent DNA records database search identified Leidig as a possible match.

At Leidig's trial, the State did not call Ms. Rollo as a witness. Rather, the State presented the testimony of a different forensic scientist, Tiffany Keener. Ms. Keener had analyzed a reference sample collected from Leidig after he became a suspect in the burglary, and then had compared the DNA profile she generated from that known sample to the DNA profile that Ms. Rollo had generated from the forensic samples. Over Leidig's objection, the trial court allowed the State to introduce Ms. Rollo's report into evidence, and to elicit Ms. Keener's expert opinion that Leidig's known DNA profile matched the DNA profile that had been generated from the samples taken at the scene of the crime. The matching DNA profiles constituted the only evidence that linked Leidig to the burglary.

The jury convicted Leidig of third- and fourth-degree burglary and malicious destruction of property having a value of less than $1,000. The Court of Special Appeals affirmed Leidig's convictions, holding that the admission of Ms. Rollo's report into evidence did not violate Leidig's rights under the Sixth Amendment and Article 21.

256 A.3d 873

As discussed below, it is unclear how the Supreme Court would decide the Sixth Amendment issue in this case. Assuming without deciding that Ms. Rollo's report is not "testimonial" for purposes of a Sixth Amendment confrontation analysis, we conclude that a different standard of what is testimonial applies under Article 21. We hold that, under Article 21, a scientific report is "testimonial" if the author of the report reasonably would have understood that the primary purpose for the creation of the report was to establish or prove past events potentially relevant to later criminal prosecution. Under that standard, the trial court's admission of the forensic test results in this case, without giving Leidig the opportunity to cross-examine Ms. Rollo, violated Article 21.



A. The Investigation of the Burglary

Shortly after 2:00 p.m. on September 1, 2016, Sergeant David Haugh1 of the Washington County Sheriff's Department responded to a reported burglary at the home of Ralph and Rebecca Brown in Hagerstown, Maryland. When Sergeant Haugh arrived, he met with the Browns and learned that neither of them was home during the alleged burglary. The Browns told Sergeant Haugh that, after they returned home, they discovered that someone had forced entry into their home through one of their living room windows and had stolen Mr. Brown's Smith & Wesson 38 Special revolver and its holster.

Following his discussion with the Browns, Sergeant Haugh identified a window that appeared to have been forced inward and concluded it was the burglar's point of entry. The window was adorned with white curtains. Sergeant Haugh discovered fragments of glass on the floor below the window. Upon closer inspection of the window, Sergeant Haugh noticed a dark reddish substance on the window's frame and on a curtain. He suspected that the substance might be blood. After confirming that neither of the Browns had cut themselves, Sergeant Haugh swabbed the window frame and the curtain two times each. On September 2, 2016, Sergeant Haugh placed the two swabs of suspected blood from the window frame and the two swabs of suspected blood from the curtain into the property room at the Washington County Sheriff's Office.

B. The Forensic DNA Analysis: Molly Rollo's Report

On September 7, 2016, the swabs were sent to the Maryland State Police Forensic Sciences Division in Pikesville for DNA analysis and possible entry in the Combined DNA Index System ("CODIS").2 At the Pikesville Laboratory in the Biology Unit, Molly Rollo conducted a serological and DNA analysis of the swabs.3 She prepared

256 A.3d 874

a report detailing her analysis, results, and conclusions. This document – titled a "LABORATORY REPORT" – was addressed to then-Corporal Haugh and listed the "requestor's" case number as well as the laboratory's file number. The report identified the "[v]ictim" as Mr. Brown and the "[s]uspect" as "unknown." The report contained the following prefatory language:

This examination has been made with the understanding that the evidence is connected with an official investigation of a criminal matter and that the Laboratory Report will be used for official purposes only related to the investigation or a subsequent criminal prosecution. This report contains the conclusions, opinions and interpretations of the examiner whose signature appears on the report.

The first section of the report, titled "Results and Conclusions of Examination/Analysis," began with the following statement of validation4 :

The deoxyribonucleic acid (DNA) results reported below were determined by procedures which have been validated according to the Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing Laboratories.

The results and conclusions section of the report stated that "[b]lood was indicated" on exhibit 1 (swabs of the window frame) and exhibit 2 (swabs of the living room curtain) and that both exhibits "were forwarded for DNA extraction and quantitation."

The next section of the report provided "Quantitation Results." In that section, Ms. Rollo reported that "[h]uman and male DNA was detected" in both exhibits and that the exhibits "were processed for autosomal short tandem repeat (STR) DNA analysis...

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