Ware v. State, CR–08–1177.

CourtAlabama Court of Criminal Appeals
Writing for the CourtWELCH, Presiding Judge.
Citation181 So.3d 380
Parties James Lee WARE v. STATE of Alabama.
Docket NumberCR–08–1177.
Decision Date25 March 2011

181 So.3d 380

James Lee WARE
STATE of Alabama.


Court of Criminal Appeals of Alabama.

March 25, 2011.
Rehearing Denied May 13, 2011.

181 So.3d 383

Jessica Suzanne Varnon, Tuscaloosa, for appellant.

Troy King and Luther Strange, attys. gen., and William D. Little, asst. atty. gen., for appellee.

WELCH, Presiding Judge.

James Lee Ware appeals from his convictions for first-degree burglary, a violation of § 13A–7–5(a)(1), Ala.Code 1975;1 first-degree robbery, a violation of § 13A–8–41(a)(1), Ala.Code 1975; and first-degree rape, a violation of § 13A–6–61(a)(1), Ala.Code 1975. He presents four issues on appeal.


On the night of June 8, 1993, the victim, L.M., a graduate student enrolled at the University of Alabama in Tuscaloosa, was asleep in her bed when she was awakened by a man lying on top of her and covering her eyes with what she believed was a towel and a plastic bag. L.M. struggled with her attacker, who was forcibly pulling her panties off, and during the struggle she felt something sharp in the man's back pocket. Having felt what she thought was a weapon, she feared for her life and began to beg the man not to kill her. Before the man left L.M.'s room, she was forcibly raped two times and the rapist attempted to rape L.M. a third time but was unsuccessful. When he left her room, the rapist left the blindfold over L.M.'s eyes, bound L.M.'s feet2 with an electrical cord, and instructed her not to move. L.M. heard her attacker rambling throughout her house. When L.M. believed her assailant had left her house, she freed herself and telephoned the police and her boyfriend. Money and a diamond ring had been taken from her house. L.M. was taken to the hospital, where a rape kit analysis was prepared. Other than the rape kit, no physical evidence was obtained from the crime scene that could be used to identify the rapist.

181 So.3d 384

The case remained unsolved for several years. In 2004 the Alabama Department of Forensic Sciences ("the DFS") obtained a grant that enabled "cold-case rapes" to be tested for the presence of deoxyribonucleic acid ("DNA"), which if present, could lead to the identification of the rapist. (hearing on motion to dismiss, R. 12.) DNA identification is

"[a] method of scientific identification based on a person's unique genetic makeup; speci., the comparison of a person's deoxyribonucleic acid (DNA)—a patterned chemical structure of genetic information—with the DNA in a biological specimen (such as blood, tissue, or hair) to determine whether the person is the source of the specimen. DNA is used in criminal cases for purposes such as identifying a victim's remains, linking a suspect to a crime, and exonerating an innocent suspect."

Black's Law Dictionary 516–17 (8th ed.2004). DNA identification is also termed DNA profiling. Id.

Thus, in 2004, the Tuscaloosa Police Department delivered to the DFS the rape kits from several unsolved rape cases, including L.M.'s. Later in 2004, the DFS delivered the rape kits, including L.M.'s, to Orchid Cellmark Laboratory ("Orchid") in Germantown, Maryland.3 (R. 426, 429.)

From L.M.'s rape kit, the laboratory technicians processed the biological material, i.e., the vaginal swabs,4 taken from L.M.'s rape kit, tested the DNA present on the swabs, and recorded in the case file a visual analysis of the DNA profile in the form of graphs and charts. The record discloses that as many as six laboratory technicians5 performed tests on L.M.'s vaginal swabs. (See CR. 279.) The laboratory technicians also compiled a "Report of Laboratory Examination." (CR. 258–60). The resulting report is the DNA profile report. It documented the items tested, provided information and scientific conclusions about the tested material, and stated that the evidence would be returned to the DFS. The DNA profile report was reviewed and approved by Orchid's laboratory director, Lewis O. Maddox, Ph.D., and by Orchid's molecular geneticist, Jason E. Kokoszka, Ph.D.

Jason E. Kokoszka testified at Ware's trial. Kokoszka testified that every forensic laboratory had standard operating procedures and guidelines setting forth how the laboratory work is to be performed and the way in which the laboratory material is collected. Kokoszka testified that in 2004, in addition to being a molecular geneticist at Orchid, he was also a custodian of records. (R. 704.) The DNA profile report in L.M.'s case represented a report that Orchid "routinely" issued "following the analysis" of the material submitted in a case and that it was "maintained in the regular course of business" at Orchid. (R. 704.) The report lists the items that were tested as L.M.'s oral swab, L.M.'s vaginal swab, and L.M.'s blood sample. The body of the report details the analyses that were performed on the evidence and the scientific conclusions that were drawn from the analyses. This included a chart exhibiting the "donor profile" of the "possible types of the primary male donor"

181 So.3d 385

determined from the DNA testing. (CR. 258, 260.) The report also "contains the signatures of the two individuals who were taking responsibility for the work as well as any data supplied with the report." (R. 705.) Kokoszka was "one of the individuals taking responsibility for the work informed [sic] in [the instant] case" and his signature is on the report. (R. 705, 711.) He sent the report and the case file to Angelo DellaManna at the DFS. During Kokoszka's examination, the DNA report was admitted into evidence over Ware's confrontation-clause objection. (R. 705.) In admitting the report, the trial court stated: "I believe that the cases following Crawford [v. Washington, 541 U.S. 36 (2004),] and Crawford, the supervisor of the lab work and that prepared the report, if that person is present to—present and subject to cross-examination, Crawford is satisfied. The Court is going to overrule the objection." (R. 708.)

Kokoszka also testified regarding L.M.'s case file. Kokoszka testified that the case file was also kept in "the regular course of business" at Orchid and that he was the custodian of these records. (R. 710.) The case file reflects "all the analysis that occurred in L.M.'s case from start to finish, culminating with the ... review checklists that the person reporting the case and reviewing the case would fill out to show what actually occurred inside the case." (R. 709.) Kokoszka further testified that as the reviewer of all the work done in this case, he also reviewed the "identification of the semen upon the sample which occurred prior to the DNA testing." (R. 711.) He "reviewed all the analyses that were performed to ensure that they were performed in accordance with [the standard operating procedures] and also ensured that the conclusions drawn from the data were accurate and appropriate as well." (R. 711.) Kokoszka initialed the review sheets in the case file to reflect that he had reviewed the case and he stated that his personal review meant that the work was performed "in accordance with the guidelines" that were in place. (R. 712.) He stated that "[t]o [his] knowledge there were no errors that occurred during the analysis of the case." (R. 713.) The case file was admitted during Kokoszka's examination over Ware's confrontation-clause objection.

The DNA profile report and the case file generated by the Orchid laboratory technicians, and approved by Kokoszka, were sent to Angelo DellaManna at the DFS. DellaManna is an expert in "DNA forensic biology" and "director of the DNA Program for Statewide Forensic Biology Efforts" for the DFS. (R. 411, 479.) DellaManna testified that the Orchid laboratory technicians properly performed all tests on the biological material in accordance with the controls and procedures put in place by the DFS and that there were "no errors in [L.M.'s] case." (R. 501, 538.) DellaManna compared the DNA profile sent to him by Orchid to other known DNA profiles contained in the Combined DNA Index System ("CODIS"), which is a nationwide repository for DNA-specimen information. See § 36–18–21(j), Ala.Code 1975. DellaManna determined that the DNA profile received from Orchid matched Ware's6 DNA profile in CODIS. (R. 537.)

Pursuant to routine procedure at the DFS, once the DNA match was ascertained, the DFS removed Ware's CODIS sample from storage and retested it "to ensure that the profile ... within CODIS [was] the profile ... associated with the physical sample." (R. 504–05.) Then, a

181 So.3d 386

second analyst at the DFS independently reviewed and compared Ware's known CODIS DNA profile to the unknown DNA profile obtained from the semen taken from L.M.'s rape kit and sent to the DFS by Orchid. (R. 514.) In October 2006, a DNA sample, in the form of cheek swab, was taken from Ware. Ware's cheek sample was "r[u]n through the DNA test process in [the] laboratory in Alabama," and the DNA profile from Ware's cheek sample was compared to Ware's CODIS profile and the unknown DNA profile created from the semen taken from L.M.'s rape kit. (R. 515.) "The DNA profile known to be from Mr. Ware [the cheek sample] matched ... [the] CODIS sample as well as the semen profile from the vaginal swabs of [L.M.]" (R. 515–16.) DellaManna used Orchid's DNA profile to calculate...

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