United States v. McCluskey

• Decision Date: 20 June 2013
• Docket Number: No. CR 10–2734 JCH.,CR 10–2734 JCH.
• Parties: UNITED STATES of America, Plaintiff, v. John Charles McCLUSKEY, Defendant.
• Court: U.S. District Court — District of New Mexico

954 F.Supp.2d 1224

UNITED STATES of America, Plaintiff,

v.John Charles McCLUSKEY, Defendant.

No. CR 10–2734 JCH.

United States District Court,

D. New Mexico.

June 20, 2013.

Gregory James Fouratt, Linda Mott, Stephen R. Kotz, U.S. Attorney's Office, Albuquerque, NM, Mark A. Saltman, U.S. Attorney's Office, Las Cruces, NM, Michael S. Warbel, U.S. Department of Justice, Washington, DC, for Plaintiff.

Gary Mitchell, Mitchell Law Office, Ruidoso, NM, Michael N. Burt, Law Office of Michael Burt, San Francisco, CA, Theresa M. Duncan, Duncan Earnest, LLC, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JUDITH C. HERRERA, District Judge.

This matter is before the Court on Defendant's Motion To Exclude DNA and Serology Test Results and Request for Daubert Hearing. [Doc. No. 422, filed April 22, 2012; Doc. No. 442 (Defendant's (Corrected) Supplemental Memorandum ), filed May 10, 2012]. Defendant, on numerous grounds, asks the Court to hold a Daubert hearing and to exclude the Government's DNA test results. The Government filed a Response [Doc. No. 547, filed June 25, 2012], and Defendant filed a Reply [Doc. No. 562, filed July 9, 2012]. Both parties also filed voluminous exhibits on CDs submitted to the Court.¹ [May 14, 2012; June 25, 2012]

The Government argued that a pretrial Daubert hearing was unnecessary. [Doc. No. 547, pp. 57–58] The Court agrees that a pretrial Daubert hearing is not warranted on most issues, because a sufficient record has already been presented in the hundreds of pages of briefs and thousands of pages of exhibits. On May 6 and 7, 2013, however, the Court held an evidentiary hearing on the admissibility of Low Copy Number (LCN) testing; Defendant was present at the hearing. At that hearing the Court admitted about 100 additional exhibits, for a total of about 3,500 pages of exhibits.

The Court has reviewed the parties' filings, the evidence presented, and the relevant law. The Court grants Defendant's motion to exclude the results of LCN DNA testing; the Court otherwise denies Defendant's motion to exclude DNA evidence. The Court concludes that the Government has not carried its burden of demonstrating, by a preponderance of the evidence, that the results of the LCN testing conducted by the New Mexico Department of Public Safety (NMDPS) Laboratory are admissible. The Court thus specifically excludes the DNA evidence on Item 1132313, conceded by the Government to be an LCN result. With respect to the remainder of Defendant's arguments, the Court concludes that Defendant's motion is not well taken and is denied.

BACKGROUND

Several handguns were collected when Tracy Province, and later Defendant and Casslyn Welch, were arrested. Numerous swabs were taken from the Haases' pickup truck and from items inside the truck. These items and others were tested by Carrie Zais Davis, the Government's DNA analyst at NMDPS Laboratory. ² Davis produced a number of reports setting forth her test results, her analyses, and her opinions. These lab reports were provided to Defendant, and Defendant provided them to the Court. [Def's Ex. G6]

The Court has four lab reports, from August 30, 2010; September 30, 2010; December 22, 2010; and April 27, 2011. These lab reports list the numerous items examined, the procedures employed, the analyst's results and conclusions, and in some instances the statistical analysis. The Government proposes to have its DNA analyst, Davis, testify at trial to her results and conclusions from DNA testing. According to the Government's disclosure, Davis is also expected to testify regarding collection of samples, the strict chain of custody observed, lab controls in place to protect the integrity of the samples, and the peer review process used in the analysis of these samples and subsequent comparison. [Doc. No. 442, p. 19]

For instance, the Government asserts that a .40 caliber Smith & Wesson handgun was the murder weapon. [Doc. No. 547, p. 4] Davis tested and analyzed a number of swabs taken from different parts of this handgun, Item 1B22. Davis's lab report states the procedures and methods used: “the Applied Biosystems AmpF1STR Identifiler PCR Amplification Kit on a GeneAmp PCR System 9700 thermal cycler,” an “Applied Biosystems 3130 Genetic Analyzer,” and “GeneMapper ID software.” [Def's Ex. G6, Sept. 30, 2010 report, p. 2] Davis's report states that a DNA mixture was obtained from different parts of this handgun and magazine, and states her opinion: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from these mixtures.” [ Id. (referring to Items 1B22A (swab of stains on rear of handgun slide); 1B22B (swab of stain on inside of handgun ejection port); 1B22C (swab of handgun grips); 1B39A (swab of stain on 1 Smith & Wesson magazine)) ] Davis's report states that a DNA mixture was obtained from a swab (Item 1B22D) of the trigger and trigger guard on the same handgun; the lab report states Davis's opinion: “John McCluskey and Casslyn Mae Welch cannot be eliminated as possible contributors to this DNA mixture.” [Def's Ex. G6, Sept. 30, 2010 report, p. 2] Davis's April 27, 2011 lab report states that Davis also analyzed swabs of staining (Item 1B22E) on the underside of the slide above the barrel of the same handgun (Item 1B22) and determined that it was blood; the report states her opinion: “To a reasonable degree of scientific certainty, John McCluskey is the source of the DNA identified on item 1B22E.” [Def's Ex. G6, April 27, 2011 report; see Doc. No. 547, p. 4 (further describing location of stain) ]

In addition, Davis analyzed “Touch DNA” swabs from the steering wheel (Item 31 a) and from the gear shifter (Item 31 g) of the Haases' pickup truck. [Def's Ex. G6, Dec. 22, 2010 report, pp. 1, 3] Davis's report states that a DNA mixture was obtained from both of these items and states, with respect to both Item 31a and Item 31g: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from this mixture.” [ Id., p. 3] Davis further states her opinion, regarding Item 31a, that Welch, Province, Linda Haas, and Gary Haas are eliminated as contributors to this DNA mixture. [ Id.] Regarding Item 31 g, the report states that the minor DNA profile may be used for elimination purposes only, and that Welch, Province, and Linda Haas are eliminated as contributors of the minor DNA profile. [ Id.]

Davis also analyzed swabs of red stain recovered from the pavement at a Phillips 66 gas station in Santa Rosa, New Mexico, Item R–6. [Doc. No. 547, p. 5; Def's Ex. G6, Dec. 22, 2010 report, pp. 2, 4] Davis's report states that a DNA mixture was obtained from Item R–6 and states her opinion that Linda Haas and Gary Haas “cannot be eliminated as possible contributors to this DNA mixture.” [Def's Ex. G6, Dec. 22, 2010 report, p. 4] Davis states that Welch, Province, and Defendant “are eliminated as contributors to this DNA mixture.” [ Id.]

The Court is not currently aware of how many of the results and conclusions from Davis's lab reports the Government proposes to present at trial.

Defendant filed a motion to exclude the results of all of the Government's DNA testing. [Docs. No. 422, 442] The Government filed a Response [Doc. No. 547], and Defendant filed a Reply [Doc. No. 562]. Both parties also filed voluminous exhibits on CDs. [May 14, 2012; June 25, 2012] The Court admitted about 100 additional exhibits at the May 6–7, 2013, evidentiary hearing.

I. ADEQUACY OF DISCLOSURE PROVIDED BY GOVERNMENT

Defendant asserts that the Government's Notice of Intention To Offer Expert Testimony [Doc. No. 261] and the Supplemental Notice of Intent To Offer Expert Testimony [Doc. No. 386] do not comply with Rule 16. [Doc. No. 442, pp. 17–23] ³ Defendant quotes the page-long summary of the Supplemental Notice regarding Carrie Zais (Davis), Supervising Forensic Scientist. [Doc. No. 442, pp. 18–20] This summary states that the Government provided Defendant with Davis's reports and “approximately 70 pages of methodology, testing analysis, results, notes, and national match detail report.” [Doc. No. 442, p. 19] Defendant acknowledges that he received at least eleven pages from Davis's laboratory reports, together with “voluminous foundational material.” [Doc. No. 442, pp. 20–23; Def's Ex. G6] Defendant asserts, however, that these documents do not “tell us what [her] conclusions are” and do not “begin to describe ‘the bases and reasons for those opinions,’ ” as required by Rule 16. [Doc. No. 442, p. 20]

The Government responds that its disclosures meet the requirements of Rule 16 and satisfy the intent of the discovery requirements. [Doc. No. 547, pp. 5–6] The Government asserts that it has provided more than Rule 16 requires—including Davis's lab reports, the foundational data including protocols and standard operating procedure, internal and external audits, and proficiency tests. [Doc. No. 547, p. 6]

The Government was required to disclose expert evidence to be presented at trial under Rules 702, 703, or 705. In civil cases, Rule 26 requires a “written report” containing “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B)(i). The requirements in criminal cases are more limited; Rule 16 requires the Government to give Defendant only “a written summary” including “the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.” Fed.R.Crim.P. 16(a)(1)(G). Rule 16 disclosure is designed to give the opposing party notice, permitting preparation for cross-examination and presentation of opposing experts. SeeFed.R.Crim.P. 1 advisory committee's notes to 1993 amendment. Detailed, extensive discussion is not required in the Rule 16 summary: “Although the summary required by Rule 16 provides the defense with some notice, the requirement of setting forth ‘the bases and reasons for’ the...