Ware v. State (Ex parte Ware)

• Decision Date: 17 January 2014
• Docket Number: 1100963.
• Citation: 181 So.3d 409
• Parties: EX PARTE James Lee WARE. (In re James Lee Ware v. State of Alabama).
• Court: Alabama Supreme Court

181 So.3d 409

EX PARTE James Lee WARE.(In re James Lee Ware

v.State of Alabama).

1100963.

Supreme Court of Alabama.

Jan. 17, 2014.

Jessica Varnon Tubbs, Tuscaloosa, for petitioner.

Luther Strange, atty. gen., John C. Neiman, Jr., and Andrew L. Brasher, deputy attys. gen., and William D. Little, asst. atty. gen., for respondent.

Kathryn A. King, Cullman, for amicus curiae Alabama Criminal Defense Lawyers Association in support of the petitioner.

MURDOCK, Justice.

In June 2008, James Lee Ware was convicted of first-degree rape, see Ala.Code 1975, § 13A–6–61(a)(1), first-degree burglary, see Ala.Code 1975, § 13A–7–5(a)(1), and first-degree robbery, see Ala.Code 1975, § 13A–8–41(a)(1). Ware was sentenced as an habitual felony offender to three sentences of life imprisonment, to be served consecutively. Ware appealed his convictions to the Court of Criminal Appeals. The Court of Criminal Appeals affirmed the trial court's judgment. Ware v. State, [Ms. CR–08–1177, March 25, 2011] 181 So.3d 380 (Ala.Crim.App.2011).

On appeal to the Court of Criminal Appeals, Ware raised the following issues, among others, (1) whether the trial court violated his Sixth Amendment right to confront the witnesses against him when it admitted a DNA-profile¹ report that was based on the work of laboratory technicians who did not testify at trial and (2) whether the trial court erred in denying his motion for a judgment of acquittal on the robbery and burglary charges because, Ware contends, there was not sufficient evidence to prove beyond a reasonable doubt that he was armed with a deadly weapon or a dangerous instrument. This Court granted certiorari review as to those two issues. We affirm as to the first issue and reverse as to the second.

I. Facts

On the night of June 8, 1993, 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 a towel and a plastic bag. L.M. testified that, while she was struggling with her attacker, she "felt, [she] thought, something sharp in [the attacker's] back pocket." L.M. was forcibly raped two times and was left blindfolded, with her feet bound with an electrical extension cord. Money and a ring had been taken from her house. After the attacker left, L.M. called the police. L.M. was taken to the hospital, where a rape-kit analysis was prepared.² Other than the rape kit, no physical evidence was obtained from the crime scene that could be used to identify the rapist.

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. 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 those rape kits, including L.M.'s, to Orchid Cellmark Laboratory ("Cellmark") in Germantown, Maryland.

Cellmark laboratory technicians processed the biological material taken from swabs in L.M.'s rape kit, tested the DNA present in that material, and developed a DNA profile of the male whose semen was found on the vaginal swab. The record discloses that as many as six laboratory technicians performed tests on L.M.'s vaginal swabs. Cellmark prepared a three-page DNA-profile report containing a summary description of the tests performed and DNA profiles of L.M. and the as yet unidentified male donor. Cellmark also prepared a "case file" or "case folder" documenting (1) each of the steps in the process, (2) various review checklists, and (3) machine-generated results in the form of graphs and charts.³ The DNA-profile report was based on the data documented in the case file.

The DNA-profile report and the case file generated by Cellmark were sent to Angelo DellaManna at the DFS. DellaManna compared the DNA profile sent to him by Cellmark to other known DNA profiles contained in the Combined DNA Index System ("CODIS"), which is a nationwide repository for DNA-specimen information. See Ala.Code 1975, § 36–18–21(j). DellaManna testified that the DNA profile received from Cellmark matched Ware's DNA profile in CODIS.⁴

Pursuant to routine procedure at the DFS, once the DNA match was ascertained, the DFS confirmed that the CODIS profile under Ware's name actually was that of Ware. The DFS also took a new DNA sample from Ware's cheek and confirmed that the DNA profile from Ware's cheek sample matched the CODIS sample as well as the semen profile from the vaginal swabs taken from L.M.

Ware objected to the admission of any documents prepared by Cellmark and to any testimony from DellaManna as to what Cellmark did with respect to L.M.'s rape kit. Ware objected that the use of this evidence violated his Sixth Amendment right to confront and to cross-examine the Cellmark laboratory technicians who performed the tests that formed the basis for the DNA-profile report.

The State also presented testimony from Cellmark's molecular geneticist, Jason E. Kokoszka, Ph.D., who supervised and reviewed the testing and analysis of L.M.'s case and who signed Cellmark's DNA-profile report in L.M.'s case. Kokoszka testified that L.M.'s case file was kept in the regular course of business at Cellmark and that he was the custodian of those records.

Kokoszka testified that the case file reflects "all the analyses 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." Kokoszka further testified that as the reviewer of all the work done in this case, he had reviewed the "identification of the semen upon the sample which occurred prior to the DNA testing," and he had reviewed "all the analyses that were performed to ensure that they were performed in accordance with [Cellmark's standard operating procedures] and also ensured that the conclusions drawn from the data were accurate and appropriate as well." 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. He stated that "[t]o [his] knowledge there were no errors that occurred during the analysis of the case."

During the State's examination of Kokoszka, the DNA-profile report and the case file were admitted into evidence over Ware's Confrontation Clause objection. In admitting the report, the trial court stated:

"I believe that [under] the cases following Crawford [v. Washington, 541 U.S. 36 (2004),] and Crawford [itself], 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."

Other than the DNA evidence, no evidence was presented that would identify the rapist. Ware contends that the DNA match was proven to be erroneous by evidence indicating that he was incarcerated in the Autauga County jail at the time of the rape. The evidence as to Ware's incarceration is in dispute.⁵ In 1993, Ware was incarcerated in the Autauga County jail and was serving as a jail cook. There was evidence presented indicating that while he was incarcerated Ware was treated as a trusty and was at least occasionally granted unsupervised leave from the jail. There was also evidence indicating that Ware allegedly spent some time at an address four blocks from where L.M. was raped. Thus, the evidence as to Ware's alibi presented a question for the jury.

II. Confrontation Clause of the Sixth Amendment

A. Standard of Review

"Where an issue presents a pure question of law, ... this Court's review is de novo." Ex parte Peraita, 897 So.2d 1227, 1231 (Ala.2004). Likewise, a trial court's application of the law to the facts is reviewed de novo. Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004). See also Stewart v. State, 990 So.2d 441, 442 (Ala.Crim.App.2008) ("Where ... an appellate court reviews a trial court's conclusion of law and its application of law to the facts, it applies a de novo standard of review.").

B. The Court of Criminal Appeals' Decision

Before the Court of Criminal Appeals, Ware contended that the trial court had violated his Sixth Amendment right to confront witnesses against him when it admitted into evidence testimony and reports based on the workproduct of laboratory technicians who did not testify at the trial. Specifically, Ware contended that the DNA-profile report and related evidence is testimonial in nature under the principles set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

The Court of Criminal Appeals concluded that the DNA-profile report was not "testimonial" because, it reasoned, (1) the report was not in the form of an affidavit, (2) the laboratory technicians were not engaged in an accusatory function, (3) the data entries were "routine," (4) Ware was not identified as a suspect at the time the tests were performed, and (5) there was no potential for prosecutorial abuse under the circumstances of this case.

C. United States Supreme Court Precedent

The Sixth Amendment of the United States Constitution provides in part that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." In Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate ‘indicia of reliability.’ "⁶

In Crawford, the United States Supreme Court overruled Ro...