State v. Gomez

Decision Date22 December 2010
Docket NumberNo. CR-09-0339-PR.,CR-09-0339-PR.
Citation226 Ariz. 165,244 P.3d 1163
PartiesSTATE of Arizona, Appellee, v. Joseph Wesley GOMEZ, Appellant.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Julie A. Done, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Bruce F. Peterson, Office of the Legal Advocate By Frances J. Gray, Deputy Legal Advocate, Phoenix, Attorneys for Joseph Wesley Gomez.


HURWITZ, Vice Chief Justice.

¶ 1 The issue before us is whether the Confrontation Clause of the Sixth Amendment to the United States Constitution is violated when a testifying expert offers an opinion on the similarity of DNA profiles prepared by technicians who did not testify. We conclude that the expert's testimony did not contravene the Confrontation Clause.


¶ 2 In 2006, Joseph Wesley Gomez was arrested and charged with crimes related to a home invasion. Police collected items from the crime scene and submitted them, along with a blood sample taken from Gomez, to a laboratory. The laboratory analyzed DNA from the items and compared the results with the DNA from the blood sample.

¶ 3 In performing DNA testing and analysis, the laboratory used an "assembly line" method that involved seven steps. During the first six steps of the process, technicians isolate and amplify the DNA and generate profiles. The technicians do not interpret data or draw conclusions during these first six steps, in which machines are used for every step except the initial screening of submitted items for DNA.1 Various technicians involved in the laboratory processes did not testify at Gomez's trial.

¶ 4 The State instead called a single witness about the DNA testing. That witness, a senior forensic analyst and supervisor at the laboratory, testified in detail about the laboratory's operating procedures, standards, and safeguards. Although the analyst had not witnessed all of the steps in the process, she had checked the technicians' records for any deviations from the laboratory's protocols. The analyst had performed the initial evidence screening and DNA extraction on most of the items, and she testified about the chain of custody for all items. For each sample, the analyst personally performed the final step in the process, interpretation and comparison. This step required her to compare the DNA profiles generated in the laboratory, and it was the only step involving human analysis.

¶ 5 The analyst testified that several profiles derived from evidence at the crime scene "matched" the profile obtained from Gomez's blood sample.2 The data from the testing process were not introduced into evidence as exhibits.

¶ 6 Gomez was convicted of the charged felonies. The court of appeals affirmed, rejecting Gomez's argument that the expert's testimony violated the Confrontation Clause. State v. Gomez, 1 CA-CR 08-0318, 2009 WL 3526649 (App. Oct. 29, 2009) (mem. decision).

¶ 7 We granted review because the application of the Confrontation Clause to expert testimony about DNA profiles is an issue of statewide importance likely to recur. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).


¶ 8 The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The "primary object" of the Confrontation Clause is "testimonial hearsay." Crawford v. Washington, 541 U.S. 36, 53, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford declined to establish a precise definition of "testimonial," but gave examples such as affidavits, prior testimony, depositions, and items contained in "formalized" materials. Id. at 51-52, 124 S.Ct. 1354.

¶ 9 In Melendez-Diaz v. Massachusetts, --- U.S. ----, ----, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009), the Supreme Court held that expert affidavits containing the results of forensic tests prepared for purposes of trial were testimonial hearsay. In Melendez-Diaz, analysts tested a substance, found it to be cocaine, and signed affidavits so affirming. Id. at 2531. The Court found that the defendant's confrontation rights were violated when the State used the affidavits to prove that the tested substance was cocaine without presenting any of the analysts for cross-examination. See id. at 2532.


¶ 10 Gomez contends that because the laboratory technicians who generated the DNA profiles did not testify at his trial, the analyst's testimony violated the Confrontation Clause. In assessing Gomez's argument, it is useful to separate the analyst's testimony into two parts: (1) her testimony regarding the laboratory protocols and the generation of the DNA profiles and (2) her expert opinion that several of the profiles matched. See Pendergrass v. State, 913 N.E.2d 703 (Ind.2009) (addressing Confrontation Clause issues when state presented two witnesses, a laboratory supervisor who testified to procedures used in generating profiles and a DNA analyst who compared profiles).


¶ 11 Gomez correctly does not argue that the analyst's testimony about her role in the testing process, the laboratory's procedures, and the qualifications of the technicians was hearsay. This testimony was based on the analyst's personal knowledge. Rather, Gomez argues that the analyst's testimony about the DNA profiles was hearsay because she was not involved in generating those profiles.

¶ 12 It is not clear that the data in the machine-generated DNA profiles were hearsay statements. In United States v. Washington, a divided Fourth Circuit held that printed data from a gas chromatograph were not hearsay statements and therefore the Sixth Amendment was not offended when the data were introduced into evidence without offering the testimony of the technicians who operated the machine. 498 F.3d 225, 229-32 (4th Cir.2007). But see id. at 232-35 (Michael, J., dissenting) (concluding that data printouts are testimonial hearsay). After Melendez-Diaz, the Supreme Court denied certiorari in Washington, --- U.S. ----, 129 S.Ct. 2856, 174 L.Ed.2d 600 (2009), and the Court has not yet decided whether machine-generated data are testimonial hearsay. Some courts, however, have so held. See, e.g., Commonwealth v. Banville, 457 Mass. 530, 931 N.E.2d 457, 466 (2010) (involving DNA profiles); see also Washington, 498 F.3d at 233 (Michael, J., dissenting) (collecting cases to show that courts "consistently consider computer-generated assertions of fact as hearsay statements"). We assume without deciding that the machine-generated DNA profiles here are hearsay statements.

¶ 13 We also note that the profiles were not introduced into evidence as exhibits at Gomez's trial; the analyst simply testified about them. In Banville, the Massachusetts Supreme Judicial Court held that the Confrontation Clause is not offended when an expert relies on testimonial hearsay to form an opinion so long as the expert does not testify to the details of the hearsay and the hearsay itself is not admitted. See Banville, 931 N.E.2d at 466-67. The expert in this case did not testify in detail about the DNA profiles and, as in Banville, the profiles were not admitted into evidence as exhibits. Nonetheless, without deciding the issue, we assume that the analyst's testimony here was functionally equivalent to the introduction of the profiles into evidence.

¶ 14 In considering Gomez's argument that the analyst's testimony about the profiles violated the Sixth Amendment, we start from the premise that the Confrontation Clause does not require that every person in the chain of custody be available for cross-examination. Melendez-Diaz expressly rejected the notion that "anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." 129 S.Ct. at 2532 n. 1. Rather, the Court emphasized that "[i]t is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live." Id. The Sixth Amendment requires only that those who do testify about the chain of custody be available for cross-examination. Id.

¶ 15 Gomez does not contend in this Court that the chain of custody of the DNA samples was insufficiently established. Police officers testified that the evidence was collected and sent to the laboratory, and the analyst testified that the evidence was received, processed, tested, and returned. The analyst testified from her own knowledge not only about the laboratory's general procedures, but also about the records kept by the laboratory in this case. The chain of custody testimony did not violate the Confrontation Clause simply because every technician who handled and processed the samples did not testify. See Melendez-Diaz, 129 S.Ct. at 2532 n. 1.

¶ 16 The remaining question, then, is whether Gomez's inability to cross-examine the technicians deprived him of his confrontation rights with respect to the analyst's testimony about the profiles. If the DNA profiles are hearsay statements, they are in effect statements of the processing machine about the data contained in the samples. The profiles contain neither the opinion nor the statement of the technicians. The machine, of course, cannot be cross-examined. The issue thus is whether the Confrontation Clause was satisfied because the analyst, rather than the technicians, was available for cross-examination.

¶ 17 In virtually identical circumstances, several courts have held that the testimony of a witness with knowledge of how the profiles were prepared satisfies the Sixth Amendment. The Indiana Supreme Court's decision in Pendergrass is particularly instructive. In that case a laboratory supervisor testified regarding the processing of DNA evidence....

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