Pendergrass v. State

• Decision Date: 24 September 2009
• Docket Number: No. 71S03-0808-CR-00445.,71S03-0808-CR-00445.
• Citation: 913 N.E.2d 703
• Parties: Richard PENDERGRASS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

913 N.E.2d 703

Richard PENDERGRASS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 71S03-0808-CR-00445.

Supreme Court of Indiana.

September 24, 2009.

Jeffrey E. Kimmell, South Bend, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Scott Barnhart, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-0712-CR-00588.

SHEPARD, Chief Justice.

Richard Pendergrass was convicted of two counts of child molesting based in part on DNA evidence showing he was very likely the father of the victim's aborted fetus. The State's witnesses to this effect were a laboratory supervisor with direct knowledge of the processing of the samples and an expert DNA analyst who used the laboratory's print-outs to render an opinion. Pendergrass contends his rights under the Confrontation Clause were violated because the State did not present the technician who ran the samples through the laboratory's equipment. We conclude that the proof submitted was consistent with the Sixth Amendment as recently detailed in Melendez-Diaz v. Massachusetts.

Facts and Procedural History

This case commenced when the State charged Richard Pendergrass with two counts of child molesting, class A felonies. Ind.Code § 35-42-4-3 (2007).

At trial, C.D., Pendergrass's daughter, testified that he had started touching her inappropriately when she was eleven years old. At age thirteen, when she began to feel ill, Pendergrass took her to the doctor, who told them she was pregnant. C.D. told her mother of her pregnancy and its cause, and C.D.'s mother then reported Pendergrass to the police. Soon after, C.D. had an abortion.

Two witnesses testified at trial concerning DNA evidence demonstrating the likelihood that Pendergrass was the father of the fetus. Lisa Black, a supervisor at the Indiana State Police Laboratory, explained the process of test sampling for DNA. (Tr. at 120-97.) Dr. Michael Conneally, a DNA expert who performed the paternity analysis, explained how he came to his conclusions regarding the likelihood that Pendergrass was the father of the aborted fetus. (Tr. at 209-52.) During the testimony given by Black and Conneally, the State presented three documents, two prepared by the Indiana State Police Laboratory in Lowell, Indiana, and one prepared by Conneally. Pendergrass objected to admitting these documents, insisting on Confrontation Clause and hearsay grounds that the State must call the analyst who performed the test in the laboratory. Over Pendergrass's objection the court admitted these documents into evidence.

Exhibit 1 was labeled "Certificate of Analysis," prepared by Daun Powers, a forensic DNA analyst at the Lowell laboratory, and admitted during Black's testimony. This document consisted of an inventory of physical evidence submitted to the lab, a list of the tests performed, and indications of where the evidence and the test results were sent. It did not contain any test results or conclusions. (App. at 6-7.)

Exhibit 2, also admitted while Black was on the stand, was a table of the test results titled "Profiles for Paternity Analysis" and compiled by Powers. (App. at 8; Tr. at 176.) This table did not contain conclusions about paternity, just numbers in columns categorized by abbreviated test labels for each of the three test subjects: Pendergrass, C.D., and the aborted fetus. (App. at 8.)

Black had reviewed Exhibit 2 in the original course of the State Police Laboratory's work. (Tr. at 179-80.) In Black's role as supervisor she performs technical, administrative, and random reviews of the work of DNA analysts at the Lowell and Ft. Wayne laboratories. All DNA case work is reviewed by a second qualified analyst. Black performs some of these technical reviews and all of the other reviews. She performed the technical review of Powers's tests on the evidence at issue in this case. (Tr. at 126-27, 131, 179-81.) Her initials appear next to each of the three samples on the DNA profile, indicating she "confirmed that this paperwork that Ms. Powers was providing to Dr. Conneally was an accurate representation of her results." (App. at 8, Tr. at 179-80.) On the stand Black described the steps Powers took to develop the DNA profiles for each of the three samples. (Tr. at 127.) She described what types of samples were taken from the three subjects based on Powers's notes. (Tr. at 140-42.)

Black testified about the general procedures followed at the laboratory, including receiving, storing, and testing evidence. (Tr. at 126-30, 138-40, 153-55.) Throughout Black's testimony, it was plain enough that Powers had performed the original laboratory processing and that Black had supervised and checked her work. (Tr. at 120-97.) For example, when asked which test was performed first, Black replied, "I don't have any knowledge of that." (Tr. at 153.) She sometimes relied on Powers's notes for her testimony about the specific tests performed. (Tr. at 140-42.) For example, when asked if anything indicated a difficulty in creating the DNA profile, Black looked to Powers's notes, which were not admitted into evidence. (Tr. at 140-42.) She had not reviewed most of Powers's notes for trial. (Tr. at 145-46.)

During Conneally's testimony the court admitted Exhibit 3, a paternity index table that Conneally created. (Tr. at 217, 222.) Conneally used the index to calculate the probability that Pendergrass was the father of the fetus based on the laboratory's test results. (Tr. at 214, 216, 222.) Given the paternity index results, there was a 99.9999 percent likelihood that Pendergrass was the father of the fetus that C.D. aborted, or, in other words, Pendergrass was 2.8 million times more likely to be the father than a random man. (Tr. at 215-26.)

The jury returned guilty verdicts on both counts. The trial court sentenced Pendergrass to consecutive terms of 40 years on Count I and 25 years on Count II. (App. at 3.) The Court of Appeals affirmed. Pendergrass v. State, 889 N.E.2d 861 (Ind.Ct.App.2008). We granted transfer. 898 N.E.2d 1219 (Ind.2008) (table).

I. Pendergrass Was Not Denied His Right of Confrontation.

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Crawford overturned the rule announced in Ohio v. Roberts, 448 U.S. 56, 72, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which permitted hearsay statements as long as they bore what the Roberts opinion described as the "indicia of reliability." Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Crawford dispensed with this substantive understanding of the Confrontation Clause in favor of a procedural one, stating,

To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.... Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.

541 U.S. at 61-62, 124 S.Ct. 1354.

In determining the types of evidence to which the Confrontation Clause applies Crawford turned to definitions of language from the text itself: "It applies to `witnesses' against the accused—in other words, those who `bear testimony.' `Testimony,' in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Crawford, 541 U.S. at 51, 124 S.Ct. 1354, (quoting 2 N. Webster, An American Dictionary of the English Language (1828)).

"Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354. While the Crawford court intentionally refrained from defining what evidence is "testimonial," it listed three "formulations of this core class of `testimonial' statements":

(1) ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;

(2) extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;

(3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (numbers added).

Crawford emphasized that the Sixth Amendment's very essence is to protect against abuses of government officials. "Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse—a fact borne out time and again throughout a history with which the Framers were keenly familiar." Crawford, 541 U.S. at 56 n. 7, 124 S.Ct. 1354. The opinion later claimed that the "Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by `neutral' government officers." Crawford, 541 U.S. at 66, 124 S.Ct. 1354.

Therefore, says Crawford, the text, taken with traditional...