State v. Miller

CourtCourt of Special Appeals of Maryland
Citation256 A.3d 920,475 Md. 263
Docket NumberNo. 24, Sept. Term, 2020,24, Sept. Term, 2020
Parties STATE of Maryland v. Oliver MILLER
Decision Date05 August 2021

475 Md. 263
256 A.3d 920

STATE of Maryland
v.
Oliver MILLER

No. 24, Sept. Term, 2020

Court of Appeals of Maryland.

August 5, 2021


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

Argued by Samuel Feder, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.

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

Biran, J.

Since the early 1990s, law enforcement officers throughout the United States have solved criminal cases with the aid of the Federal Bureau of Investigation's Combined DNA Index System ("CODIS") and the associated National DNA Index System ("NDIS"). These tools permit law enforcement agencies to exchange and compare deoxyribonucleic acid (DNA) profiles in connection with crimes where no suspect has been identified. The indexes link DNA evidence obtained from crime scenes with the known DNA profiles of individuals contained in the indexes. To date, CODIS and NDIS have generated more than 500,000 leads for participating law enforcement agencies. This is one of those cases.

In 2008, an unidentified assailant sexually assaulted L.J.,1 a 19-year-old woman, in her Baltimore City apartment. Forensic evidence was collected at the woman's apartment and from her body during a Sexual Assault Forensic Examination ("SAFE Exam"). Forensic scientists generated a DNA profile from the evidence for an "unknown male #1," the presumptive assailant, but the case went cold. Nine years later, CODIS produced Respondent Oliver Miller as a match for "unknown male #1." A grand jury subsequently charged Miller with several offenses relating to the sexual assault of L.J.

At Miller's trial, the State produced several witnesses who were involved in the collection and analysis of the forensic evidence, but the State did not call Thomas Hebert as a witness. Formerly an analyst in the Baltimore Police Department's Forensic Services Division, Mr. Hebert was

256 A.3d 922

the primary author of two reports that analyzed and/or compared DNA evidence relevant to this case: (1) a 2008 report stating that the DNA of "unknown male #1" was identified on the evidence collected from L.J. and her apartment; and (2) a 2017 report naming Miller as the source of that DNA. By the time of Miller's trial, Mr. Hebert had relocated to Georgia. The State proposed to offer the testimony of two other Forensic Services Division analysts in Mr. Hebert's stead: Kelly Miller (no relation to Respondent Oliver Miller), who was the technical reviewer of the 2008 report, and Kimberly Morrow, who was the technical reviewer of the 2017 report. In response, Miller moved on hearsay and confrontation grounds to preclude the State from offering evidence of Mr. Hebert's analyses through these witnesses. The trial court denied the motion and permitted Ms. Miller and Ms. Morrow to testify over Miller's objection. The jury convicted Miller on all counts.

In this appeal, we are concerned with Ms. Morrow's testimony concerning the 2017 report, which named Miller as the suspect in the 2008 sexual assault of L.J. The question before this Court is whether a trial court violates a criminal defendant's constitutional rights, where the court allows the technical reviewer of a report analyzing DNA evidence to testify about the results of that analysis, without requiring the primary author of the report to be available for cross-examination. For the reasons that follow, we answer that question in the negative and affirm Miller's convictions.

I

Background

A. CODIS Program Requirements for Participating Laboratories

In 1990, the FBI piloted the CODIS Program with 14 participating state and local laboratories. See Federal Bureau of Investigation, Combined DNA Index System (CODIS) , available at https://perma.cc/RNB8-96SA. The DNA Identification Act of 1994 authorized the Director of the FBI to establish NDIS and specified the standards for those laboratories that contribute profiles to the indexes. See Pub. L. No. 103-322, 108 Stat. 2069 (1994) (codified as amended at 34 U.S.C. § 12592 (2017) ).2 Today, the indexes contain DNA identification records of persons convicted of and charged with crimes, analyses of DNA samples recovered from crime scenes, analyses of DNA samples recovered from unidentified human remains, and other DNA samples collected under applicable legal authorities. See 34 U.S.C. § 12592(a). Each laboratory that contributes to the indexes3 must comply with the FBI's

256 A.3d 923

Quality Assurance Standards for Forensic DNA Testing Laboratories ("QAS" or the "Standards") and undergo periodic audits to ensure their continued compliance. See id. § 12592(b).

Relevant to this case, Standard 12.1 requires each participating forensic laboratory to "conduct and document administrative and technical reviews of all case files and reports to ensure conclusions and supporting data are reasonable and within the constraints of scientific knowledge." FBI, Quality Assurance Standards for Forensic DNA Testing Laboratories , Std. 12.1 (2011), available at https://perma.cc/D227-A2GU ("FBI QAS").4 An administrative review is an evaluation of the final report and its supporting documentation "for consistency with laboratory policies and for editorial correctness." Id. at Std. 2 (definitions). Under the QAS, an administrative reviewer must:

• review the case file and final report for clerical errors and ensure relevant case information is included in the report and accurate;

• review the chain of custody and disposition of the evidence; and

• follow the laboratory's administrative review documentation procedures.

See id. at Std. 12.3.

A technical review, in contrast to an administrative review, is a thorough, substantive review of the primary analyst's work. Thus, a technical reviewer must be a qualified analyst in the methodology being reviewed.5 Id. at Stds. 5.5, 12.1.1. A technical review includes "an evaluation of reports, notes, data, and other documents to ensure there is an appropriate and sufficient basis for the scientific conclusions." Id. at Std. 12.1. Standard 12.2 sets forth the following requirements for a technical review:

STANDARD 12.2 Completion of the technical review shall be documented and the technical review of forensic casework shall include the following elements:

12.2.1 A review of all case notes, all worksheets, and the electronic data (or printed electropherograms or images) supporting the conclusions.

12.2.2 A review of all DNA types to verify that they are supported by the raw or analyzed data (electropherograms or images).

12.2.3 A review of all profiles to verify correct inclusions and exclusions (if applicable) as well as a review of any inconclusive result for compliance with laboratory guidelines.

12.2.4 A review of all controls, internal lane standards and allelic ladders to verify that the expected results were obtained.

12.2.5 A review of statistical analysis, if applicable.

12.2.6 A review of the final report's content to verify that the results/conclusions are supported by the data. The report shall address each tested item or its probative fraction.

12.2.7 Verification that all profiles entered into CODIS are eligible, have
256 A.3d 924
the correct DNA types and correct specimen category.

12.2.7.1 Prior to upload to or search of SDIS, verification of the following criteria for DNA profiles: eligibility for CODIS, correct DNA types, and appropriate specimen category.

12.2.7.2 For entry into a searchable category at SDIS, verification of the following criteria for DNA profiles by two concordant assessments by a qualified analyst or technical reviewer: eligibility for CODIS; correct DNA types; and appropriate specimen category.

The QAS further requires the laboratory to document each element of the administrative and technical reviews. Id. at Std. 12.4.

To ensure that each laboratory employee involved in casework is proficient, the QAS requires that analysts, technical reviewers, and other relevant personnel periodically be "proficiency tested" in the technology they use in casework. Id. at Std. 13.1.4.1. In addition, the contributing laboratories must be audited annually to evaluate, confirm, and verify that laboratories are meeting the level of quality required. Id. at Std. 15.1.

B. This Case

1. The Crime and Subsequent Investigation

On January 19, 2008, L.J., a 19-year-old student, noticed someone who seemed to be following her as she walked home along Eutaw Street in Baltimore City. As L.J. put her keys into the front door of her apartment building, a man came up from behind her, held a knife to her throat, told her not to scream, and ordered her to open the door. Once inside L.J.’s apartment, the assailant forced her to engage in various sexual acts with him for approximately two hours.

During the assault, the assailant forced L.J. to touch his penis with her hand and perform fellatio on him multiple times. Following those acts, he ejaculated on her face, her bedsheet, and pillowcase. He also attempted to penetrate her...

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5 cases
  • Leidig v. State
    • United States
    • Court of Special Appeals of Maryland
    • August 5, 2021
    ...objections under Article 21. First, as discussed in more detail in the other confrontation case we decide today, State v. Miller , 475 Md. 263, 256 A.3d 920 (2021), if a testifying witness thoroughly reviewed a scientific report for substance at the time of its creation – providing a "techn......
  • Gross v. State
    • United States
    • Court of Special Appeals of Maryland
    • August 26, 2022
    ...of Special Appeals have repeatedly cited Dorsey and its formulations of the harmless error standard. See, e.g. , State v. Miller , 475 Md. 263, 302, 256 A.3d 920 (2021) (holding that there was "no reasonable possibility that [the error] may have contributed to the rendition of the guilty ve......
  • Kumar v. State
    • United States
    • Court of Special Appeals of Maryland
    • December 20, 2021
    ...we need only address the issue of preservation for appellate review, not waiver.This case is distinguishable from State v. Miller, 475 Md. 263, 303, 256 A.3d 920, 944 (2021), a case cited by the State at oral argument, in which this Court remanded a case to the Court of Special Appeals for ......
  • Gray v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 8, 2022
    ...that State v. Miller, 475 Md. 263 (2021)[6] is distinguishable from the instant case. As we shall explain, this case is on all fours with Miller, and pursuant to Miller , whether State failed to make a good-faith effort to bring in the original analyst is of no consequence where the testif......
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