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Derr v. State

Court of Appeals of Maryland

August 22, 2013

NORMAN BRUCE DERR
v.
STATE OF MARYLAND

Harrell Battaglia Greene Adkins McDonald Bell Eldridge, John C. (Retired, Specially Assigned), [*] JJ.

OPINION

Greene, J.

On June 29, 2006, Appellant, Norman Bruce Derr ("Derr"), was convicted of multiple sexual offenses in the Circuit Court for Charles County. On appeal to the Court of Special Appeals, Derr challenged his conviction and presented five questions for review. Prior to the intermediate appellate court's rendering a decision in the case, this Court granted certiorari on its own motion, 411 Md. 740, 985 A.2d 538 (2009), to address the questions raised by Derr:[1]

1. Whether[2] [Norman] Derr's federal and state constitutional rights of confrontation were violated when the State was permitted to introduce the opinion of a serology examiner and the results of DNA [deoxyribonucleic acid] testing of biological evidence through the testimony of an expert who did not participate either directly or in a supervisory capacity in the testings, without calling the analysts who performed the testings as witnesses or showing that the analysts were unavailable and that [Norman] Derr had a prior opportunity to cross-examine them?
2. Whether [Norman] Derr's constitutional and statutory rights to discovery necessary to prepare a defense to scientific evidence were violated when the State used a statistical method to describe the rarity of a DNA profile that did not quantify the chance of a coincidental match caused by the trawl of a DNA database and [Norman] Derr was denied access to the number of coincidental matches contained in the database, where the coincidental match number was required to demonstrate the limitation of the State's chosen statistic?
3. Whether a "match" derived from a trawl of a DNA database, the significance of which was described by the State with a statistic that did not account for laboratory error or the chance of a coincidental match caused by the trawl of a DNA database, was sufficient evidence to sustain [Norman] Derr's convictions in the absence of any other evidence that corroborated his identification as the perpetrator of the offenses?
4. Whether the court erred when it refused to instruct the jury on the meaning of the term "reasonable degree of scientific certainty" when the State's expert used that term before the jury to characterize her opinion that [Norman] Derr was the source of DNA evidence?

Following remand, supplemental briefing, and oral argument in this Court, we affirm the judgment of the Circuit Court and conclude: (1) Derr's right of confrontation was not violated when the State's expert witness presented the results of forensic tests[3] as the basis for her conclusion that Derr was the source of the deoxyribonucleic acid ("DNA") found on the vaginal swabs taken from the rape victim; (2) Derr's statutory and constitutional rights to discovery were not violated by the trial judge's refusal to order the State to conduct a search for coincidental matches in the Federal Bureau of Investigation's Combined DNA Index System ("CODIS"); (3) the evidence presented during trial was legally sufficient to sustain Derr's conviction; and (4) the trial judge did not err when she refused to include Derr's proposed jury instruction on the definition of "reasonable degree of scientific certainty."

FACTUAL BACKGROUND

Derr was indicted with multiple sexual offenses relating to an attack and rape of a woman in Charles County, Maryland in December 1984. After the sexual assault, the victim was transported to the hospital where she was examined by medical personnel. In the process of collecting biological evidence, medical personnel used a "rape kit"[4] to collect, among other things, a blood sample, a genital swab, two vaginal swabs, and an anal swab from the victim. Additionally, the victim was interviewed by officers from the Charles County Sheriff's Office ("Sheriff's Office") and the victim assisted them in creating a composite sketch of the attacker from her memory.

The physical evidence collected, including the rape kit, was sent to the Federal Bureau of Investigation ("FBI") laboratory for serological testing. In 1985, a serological examiner identified sperm and semen on parts of the swabs and detailed the findings in serological examination notes. Despite the testing and investigation, the case remained unsolved and became inactive.

In 2002, the Sheriff's Office submitted the rape kit to the FBI laboratory for additional forensic analysis. The laboratory generated a DNA profile of the suspect, consisting of thirteen genetic markers (thirteen "loci"), from the DNA in the biological material on the vaginal swabs. This profile was entered into the FBI's national database in CODIS.[5] In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 from the rape kit. The Sheriff's Office obtained a search warrant to seize additional DNA from Derr through a buccal swab, [6] which was sent to the FBI laboratory in order to create a new "reference DNA sample" and to verify that Derr's profile in CODIS was accurate. In September 2004, the Charles County Grand Jury returned an indictment charging Derr with five counts of sex-related crimes. In 2006, the State, pursuant to a warrant, collected buccal swabs from Derr's two brothers, from which the FBI laboratory derived DNA profiles.

In June 2006, Derr was tried before a jury in the Circuit Court for Charles County. On June 29, 2006, the jury found Derr guilty of first and second degree rape and first and second degree sexual offense, but not guilty on two counts of third degree sexual offense. Derr filed a timely appeal to the Court of Special Appeals. This Court granted certiorari on its own motion prior to any decision by the Court of Special Appeals. See Derr v. State, 411 Md. 740, 985 A.2d 538 (2009).

We now turn to the trial court proceedings. At trial, the State called a number of witnesses, including: the victim; the nurse who performed much of the victim's examination; Derr's two brothers; and a number of law enforcement officers who participated in investigating the rape and collecting and handling the forensic samples taken from the victim, Derr, and Derr's brothers. Additionally, through its witnesses, the State offered, and the court received into evidence, among other things, a composite sketch of the victim's attacker and the rape kit. Further, after the parties stipulated that they were fair and accurate depictions of Derr in 1982 and 1986, the court accepted into evidence photographs of Derr.

Additionally, the State called Jennifer Luttman ("Luttman"), a forensic DNA examiner for the FBI, who was accepted as an "expert in forensic serology and forensic DNA analysis." In her testimony, Luttman provided background information about DNA, how it is analyzed and how DNA profiles are created, and how those profiles are used by the FBI to find the source of a DNA sample. Additionally, Luttman testified that DNA testing is performed by teams consisting of examiners, serologists, and DNA biologists.

After providing background information, Luttman testified about the present case. Luttman testified that her role was to do comparisons between known and unknown DNA samples, do the statistical calculations and write a report; that her "team" participated in the actual analysis of some of the DNA, but not all of the DNA, in the case; and that she reached her conclusions after reviewing the "bench work"[7] of both the DNA analysis conducted by her team and that which was performed by analysts that she did not supervise.

Over Derr's objection, Luttman identified and explained the DNA profiles from the 2006 DNA tests of the biological material taken from Derr's brothers, noting both that the DNA profiles were developed from the testing by Luttman's "team" and that she only needed to identify information from nine, rather than thirteen, loci because it provided enough information to exclude Derr's brothers as possible sources of the DNA found on the vaginal swabs. Luttman testified about the DNA profile produced in 2004 from the DNA sample taken from Derr and, over objection, the profile was introduced into evidence. In addition, also over Derr's objection, Luttman introduced the results of the 2002 DNA testing on the pieces of biological evidence in the rape kit. And, over objection, the profiles developed from the 2002 DNA test were entered into evidence.

Luttman, additionally, testified about how the FBI determines the rarity of a DNA profile using the "product rule." Luttman explained that this approach entails "basically . . . multiplying the frequencies across all [thirteen loci] to get the probability of selecting someone at random from the general population that would have the same DNA that's found on the evidence."

Finally, Luttman presented her conclusions. First, she stated that the DNA taken from the vaginal swabs, analyzed in 2002, matched the DNA taken from Derr's buccal swab, analyzed in 2004 "at all 13 DNA locations." She further testified that, although the tests on the biological material from the anal and genital swabs did not produce readings at all thirteen loci, the readings the tests did produce matched the DNA profile from Derr's sample. Then, over objection, Luttman testified that "[t]he probability of selecting an unrelated individual from the general population that would have the same DNA profile that was found on the [vaginal swabs]" was more than one in a quadrillion. Luttman further stated that although the likelihood of a sibling having the same DNA profile is more likely, the results from the 2006 test on the samples taken from Derr's two brothers indicated that their DNA was excluded. Next, Luttman, over objection, concluded, based upon the "serology report" and "serology notes" from the 1985 serological test, that the biological material on the vaginal swabs, the anal swab, and the genital swab was semen. Additionally, over Derr's objection, the examination notes from the 1985 serological examination were accepted into evidence. Thereafter, Luttman gave her final conclusion, "that specimen K10 [the DNA specimen from Derr's sample], which is Norman Derr, is the source of the DNA found on specimens Q15 and Q16 [the vaginal swabs] to a reasonable degree of scientific certainty."

Luttman did not conduct or supervise the 1985 serological testing or the 2002 DNA testing of the rape kit. Further, Luttman did not perform the actual DNA testing in 2004 or 2006, and while she "supervised" or reviewed her team's analysis, there is no indication that she observed the bench work at the time it was performed by her team. The results of these tests, however, were presented as the basis for Luttman's in-court testimony that Derr was the source of the DNA found on the victim.

The defense filed a number of preliminary motions in the Circuit Court and pretrial hearings were held to consider these motions. Additionally, during trial, two conferences between the trial judge and the attorneys were held, largely outside the presence of the jury, to determine whether the State could introduce through Luttman's testimony the 1985 notes of the serological examiner and the results of the DNA analysis from 2002 and 2004. The Circuit Court permitted Luttman to testify about the results and admitted them into evidence under the business records exception to the hearsay rule[8] and Maryland Rule 5- 703[9] as the basis for Luttman's expert opinion. At trial, the State did not call the serological examiner or the FBI DNA analysts who performed the DNA testings.

DISCUSSION

I. The Confrontation Clause

Both the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights provide a criminal defendant in a Maryland court with the right to confront witnesses who testify against the defendant.[10] Cox v. State, 421 Md. 630, 642, 28 A.3d 687, 694 (2011). In past cases, we have read the two rights in pari materia, or as generally providing the same protection to defendants. See Grandison v. State, 425 Md. 34, 64, 38 A.3d 352, 370 (2012); Lawson v. State, 389 Md. 570, 587 n.7, 886 A.2d 876, 886 n.7 (2005); State v. Snowden, 385 Md. 64, 74-75 n.9, 867 A.2d 314, 320 n.9 (2005). Derr has failed to persuade this Court to deviate from that practice, and so we shall consider both rights under the same analysis.[11]

Derr argues that in our 2011 opinion in the present case ("Derr I"), this Court applied "a straightforward application of the Supreme Court's decisions in Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)], Melendez-Diaz [v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)], and Bullcoming [v. New Mexico, 564 U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011)]" to find a violation of Derr's "rights of confrontation and cross-examination." He further contends that Williams v. Illinois, 567 U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), "does not alter the rationale or result in Derr I[.]" Derr asserts that this is because, in Williams, the only "point" agreed upon by five Supreme Court Justices was that the DNA evidence was offered for the truth of the matter asserted, which is what this Court determined in Derr I. Derr, thus, argues that Williams is "limited to the particular circumstances of that case where the scientific 'basis' evidence, in a bench trial, was not admitted for its truth[, ]" which is distinct from the facts in the present case, which involved a jury trial where the test results were admitted into evidence for their truth. Derr maintains that this Court should, therefore, reinstate Derr I "on the strength of Crawford, Melendez-Diaz, and Bullcoming." Additionally, Derr contends:

Although the divided decision in Williams does not overturn Crawford, Melendez-Diaz, or Bullcoming, or require reversal of the Court's decision here, it has nonetheless caused confusion in the lower courts about the application of the Sixth Amendment right of confrontation to scientific evidence generated for use in a criminal case. Where, as here, the divergent views of the Supreme Court expressed in Williams have an unsettling effect on the application of a federal constitutional right, principles of federalism support an independent assessment of the rights of confrontation and cross-examination under Article 21. The decision here can–and should, therefore–plainly state that it is grounded on an independent assessment of the rights of confrontation and cross-examination protected under the Maryland Declaration of Rights.

Noting the difference between the language in the Sixth Amendment and Article 21, Derr asserts that we "should reinstate [our] prior decision and judgment in this case, and plainly state that the decision is based on the independent state ground of Article 21, as well as the Sixth Amendment."

The State argues, in response, that while Williams "was divided, the plurality's opinion adhered to principles the Supreme Court had established in its Confrontation Clause jurisprudence since its opinion in Crawford v. Washington . . . ." The State contends that this Court should apply the plurality's decision and reach the same conclusion as the Williams Court, that there was no violation of the right of confrontation.

On review of the present case, ultimately, we determine that the in-court testimony from the State's expert witness, Jennifer Luttman, was subject to cross-examination by Derr's attorney and presents no Confrontation Clause issues. Applying the narrowest holding of the plurality opinion and Justice Thomas's concurring opinion in Williams, we further conclude that the information relied upon and presented as the basis for Luttman's in-court testimony is not testimonial. Specifically, she relied upon the 1985 serological examination notes, the test results and DNA profiles from the 2002 DNA test on the biological evidence in the rape kit, and the test results and DNA profiles from the 2004 DNA test of the buccal sample provided by Derr. Thus, Luttman's introduction of the test results as the basis for her in-court testimony does not offend Derr's right to confront witnesses.

A. Applicable Law

The Fourteenth Amendment renders the Sixth Amendment right of confrontation binding on all states. Cox, 421 Md. at 642, 28 A.3d at 694.[12] Prior to 2004, when evaluating whether the right to confront witnesses was violated, courts applied the standard announced in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980). Roberts expressed that the Confrontation Clause did not prevent courts from admitting the statement of an "unavailable" declarant when the statement "bears adequate 'indicia of reliability[, ]'" which "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court overruled Roberts and changed the framework for determining whether the right to confront adverse witnesses had been violated. See Michigan v. Bryant, 562 U.S. __, __, 131 S.Ct. 1143, 1152, 179 L.Ed.2d 93, 104 (2011). Since that time, this Court has applied the Crawford framework. See Cox, 421 Md. at 642, 28 A.3d at 694; Langley v. State, 421 Md. 560, 562, 28 A.3d 646, 647 (2011); State v. Lucas, 407 Md. 307, 311, 965 A.2d 75, 78 (2009); Snowden, 385 Md. at 68, 867 A.2d at 316.

Under the framework established by Crawford and its progeny, the Confrontation Clause only applies when an out-of-court statement constitutes testimonial hearsay. In other words, there are two limitations on the reach of the right to confront witnesses. First, the right only applies if a statement is testimonial; nontestimonial statements are governed by the applicable rules of evidence. See Cox, 421 Md. at 643, 28 A.3d at 694; Bryant, 562 U.S. at ___, 131 S.Ct. at 1153, 179 L.Ed.2d at 104-05. Second, the Confrontation Clause only applies to hearsay, or out-of-court statements offered and received to establish the truth of the matter asserted. See Crawford, 541 U.S. at 59-60 n.9, 124 S.Ct. at 1369 n.9, 158 L.Ed.2d at 197-98 n.9; see also Williams, 567 U.S. at ___, 132 S.Ct. at 2235, 183 L.Ed.2d. at 106 (plurality); Williams, 567 U.S. at ___, 132 S.Ct. at 2256, 183 L.Ed.2d at 129 (Thomas, J., concurring in judgment); Williams, 567 U.S. at ___, 132 S.Ct. at 2268, 183 L.Ed.2d at 142 (Kagan, J., dissenting).

Once the Confrontation Clause is implicated, however, Crawford established that the State can only introduce a statement against the defendant from an absent witness if two conditions are satisfied. The declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 53-54, 124 S.Ct. at 1365-66, 158 L.Ed.2d at 194; see also Bullcoming, 564 U.S. at __, 131 S.Ct. at 2713, 180 L.Ed.2d at 619.

The critical inquiry in many cases will often be whether the challenged statement is testimonial. See Young v. State, 63 A.3d 1033, 1039 (D.C. 2013) ("The critical question in Confrontation Clause jurisprudence is the meaning of the term 'testimonial.'"). In two cases, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) and Bullcoming v. New Mexico, 564 U.S. __, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the Court concluded that the forensic test results in those cases were testimonial and their introduction violated the Confrontation Clause.

In Melendez-Diaz, the defendant was charged with distributing and trafficking in cocaine. 557 U.S. at 308, 129 S.Ct. at 2530, 174 L.Ed.2d at 320. During the trial, the prosecution entered into evidence three "certificates of analysis" that were sworn to before a notary public and indicated that the substance found in bags that had been attributed to the defendant were examined and were found to contain cocaine. 557 U.S. at 308, 129 S.Ct. at 2530-31, 174 L.Ed.2d at 320. In concluding that the certificates were testimonial, and their introduction violated the Confrontation Clause, the Supreme Court expressed that the certificates were "quite plainly affidavits, " were "functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination, " and were "not only . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, " but state law provided that "the sole purpose of the affidavits was to provide prima facie evidence . . . ." 557 U.S. at 310-11, 129 S.Ct. at 2532, 174 L.Ed.2d at 321-22 (emphasis omitted) (quotations omitted).

In Bullcoming, the defendant was arrested and charged with driving while intoxicated (DWI) and the "[p]rincipal evidence against [the defendant] was a forensic laboratory report certifying that [the defendant's] blood-alcohol concentration was well above the threshold for aggravated DWI." 564 U.S. at ___, 131 S.Ct. at 2709, 180 L.Ed.2d at 615-16. Rather than calling the analyst who signed the certification as a witness, the state called "another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on [the defendant's] blood sample." 564 U.S. at __, 131 S.Ct. at 2709, 180 L.Ed.2d at 616. The Court concluded that the forensic laboratory reports at issue were testimonial because they were "document[s] created solely for an evidentiary purpose . . . made in aid of a police investigation . . . ." 564 U.S. at ___, 131 S.Ct. at 2717, 180 L.Ed.2d at 623 (citation and quotation omitted). The Court further concluded "that surrogate testimony [where the testifying expert witness does not certify the introduced forensic test results and did not perform or observe the performance of the tests that produced those results] does not meet the constitutional requirement." 564 U.S. at ___, 131 S.Ct. at 2710, 180 L.Ed.2d at 616.

Williams v. Illinois, 567 U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), is the Supreme Court's most recent case involving the admissibility of forensic evidence pursuant to the Confrontation Clause. In Williams, the defendant was convicted in a bench trial of, among other things, a sex-related crime. 567 U.S. at ___, ___, ___, 132 S.Ct. at 2227, 2229, 2231, 183 L.Ed.2d at 98, 100, 102 (plurality). After the victim of the crime was attacked, she was taken to the hospital "where doctors treated her wounds and took a blood sample and vaginal swabs for a sexual-assault kit." 567 U.S. at ___, 132 S.Ct. at 2229, 183 L.Ed.2d at 100 (plurality). The vaginal swabs were sent to Cellmark Diagnostics Laboratory ("Cellmark") and "Cellmark sent back a report containing a male DNA profile produced from semen taken from those swabs." Id. Dr. Lambatos, a forensic specialist with the Illinois State Police ("ISP") Laboratory, "conducted a computer search" that "showed a match to a profile produced by the lab from a sample of [the defendant's] blood that had been taken after he was arrested on unrelated charges . . . ." Id. After the victim identified the defendant in a lineup, the defendant was indicted and then tried and convicted in a bench trial. 567 U.S. at ___, 132 S.Ct. at 2229, 2231, 183 L.Ed.2d at 100, 102 (plurality).

The Confrontation Clause issue in Williams pertained to the expert witness testimony of Dr. Lambatos, who did not participate in the development of the DNA profile from a vaginal swab containing biological material taken from the victim. 567 U.S. at ___, 132 S.Ct. at 2230, 183 L.Ed.2d at 101 (plurality). When asked by the prosecutor, "Did you compare the semen that had been identified . . . from the vaginal swabs of [the victim] to the male DNA profile that had been identified . . . from the blood of [the defendant][, ]" Dr. Lambatos replied yes. Id. (quotation omitted). Dr. Lambatos "then testified that, based on her own comparison of the two DNA profiles, she concluded that [the defendant] cannot be excluded as a possible source of the semen identified in the vaginal swabs[.]" Id. (quotation omitted). Dr. Lambatos further testified about the remote probability of the profile appearing elsewhere in the general population and, finally, when asked by the prosecutor "whether she would call this a match to [the defendant], Dr. Lambatos answered yes, . . . over defense counsel's objection." Id. (quotation omitted).

The defendant's "main argument" was that Dr. Lambatos "referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim's vaginal swabs[, ]" even though she did not have firsthand knowledge that the DNA profile was in fact developed from that source. 567 U.S. at ___, 132 S.Ct. at 2227, 183 L.Ed.2d at 98 (plurality). As indicated above, a violation of the Confrontation Clause requires that a statement both be testimonial and be admitted for its truth. Both the Illinois intermediate appellate court and the Illinois Supreme Court concluded that this statement about the Cellmark report was not admitted for the truth of the matter asserted and, therefore, held that there was no Confrontation Clause violation. 567 U.S. at ___, 132 S.Ct. at 2227-28, 183 L.Ed.2d at 98 (plurality). Five Justices of the United States Supreme Court agreed to affirm the Illinois Supreme Court's judgment that there was no Confrontation Clause violation in the case. 567 U.S. at ___, 132 S.Ct. at 2244, 183 L.Ed.2d at 116 (plurality); 567 U.S. at ___, 132 S.Ct. at 2245, 183 L.Ed.2d at 117 (Breyer, J., concurring); 567 U.S. at ___, 132 S.Ct. at 2255, 183 L.Ed.2d at 129 (Thomas, J., concurring in judgment).

Four opinions were issued in Williams, none of which was supported by the majority of Justices. Justice Alito wrote the plurality opinion, joined by Chief Justice Roberts and Justices Kennedy and Breyer. Justices Thomas and Breyer[13] each wrote concurring opinions (Justice Thomas concurring in judgment only) which no other Justice joined. And finally, Justice Kagan wrote a dissenting opinion joined by Justices Scalia, Ginsburg, and Sotomayor. Justice Thomas and the four dissenting Justices all agreed that the Cellmark report, or more specifically "Cellmark's statements–that it successfully derived a male DNA profile and that the profile came from [the victim's] swabs . . ., " 567 U.S. at ___, 132 S.Ct. at 2256, 183 L.Ed.2d at 129 (Thomas, J., concurring in judgment), was offered for its truth, while the plurality opinion concluded that the Cellmark report was presented not for its truth but only as the basis for the State's expert's opinion. See 567 U.S. at ___, 132 S.Ct. at 2228, 183 L.Ed.2d at 99 (plurality); 567 U.S. at ___, 132 S.Ct. at 2256, 183 L.Ed.2d at 129 (Thomas, J., concurring in judgment); 567 U.S. at ___, 132 S.Ct. at 2268, 183 L.Ed.2d at 143 (Kagan, J., dissenting). This did not control the final judgment, however, because both the plurality opinion and Justice Thomas's opinion concluded that the challenged Cellmark report was not testimonial, and, thus, this narrow majority of the Supreme Court concluded that the introduction of the Cellmark report did not violate the Confrontation Clause.

The plurality opinion determined that Dr. Lambatos's statements about Cellmark's DNA report were not introduced for the truth of the matter asserted and their introduction did not violate the Confrontation Clause. 567 U.S. at ___, 132 S.Ct. at 2228, 2240, 183 L.Ed.2d at 99, 112 (plurality). The plurality stated, however, that even if the report was entered for the truth of the matter asserted, they "would nevertheless conclude that there was no Confrontation Clause violation." 567 U.S. at ___, 132 S.Ct. at 2242, 183 L.Ed.2d at 114 (plurality). This was because the plurality determined: (1) the Supreme Court has "interpreted the Confrontation Clause as prohibiting modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confrontation right[, ]" id.; (2) "any further expansion would strain the constitutional text[, ]" id.; and (3) "the use at trial of a DNA report prepared by a modern, accredited laboratory bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate[, ]" 567 U.S. at ___, 132 S.Ct. at 2244, 183 L.Ed.2d at 116 (quotation omitted) (plurality).

In reaching this conclusion, the plurality opinion began by noting:

The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions.

567 U.S. at ___, 132 S.Ct. at 2242, 183 L.Ed.2d at 114 (plurality). The plurality then expressed that in all of "the post-Crawford cases in which a Confrontation Clause violation has been found, " except Hammon v. Indiana, [14] "both of these characteristics were present." Id. (citations and footnote omitted). The plurality noted that in Hammon, the Supreme Court concluded that an informal statement made to police was testimonial. 567 U.S. at ___, 132 S.Ct. at 2243, 183 L.Ed.2d at 115 (plurality). In a footnote in the plurality opinion in Williams, however, the plurality expressed doubts as to the soundness of this conclusion. The plurality opinion stated that "[e]xperience might yet show that the holdings in those [post-Crawford] cases should be reconsidered for the reasons, among others, expressed in the dissents the decisions produced. Those decisions are not challenged in this case and are to be deemed binding precedents, but they can and should be distinguished on the facts here." 567 U.S. at ___, 132 S.Ct. at 2242 n.13, 183 L.Ed.2d at 114 n.13 (plurality). The plurality opinion ultimately concluded that the Cellmark report "plainly was not prepared for the primary purpose of accusing a targeted individual[, ]" an essential element of the plurality's standard for whether it was testimonial. 567 U.S. at ___, 132 S.Ct. at 2243, 183 L.Ed.2d at 115 (plurality). The plurality opinion, therefore, concluded that the defendant's right to confront witnesses was not violated in Williams. 567 U.S. at ___, 132 S.Ct. at 2244, 183 L.Ed.2d at 116 (plurality).

Justice Thomas concurred with the plurality's final judgment, providing the crucial fifth vote for a majority of the Court to conclude that there was no Confrontation Clause violation. According to Justice Thomas's concurrence, this conclusion, however, is so "solely because Cellmark's statements lack the requisite 'formality and solemnity' to be considered 'testimonial' for the purposes of the Confrontation Clause." 567 U.S. at ___, 132 S.Ct. at 2255, 183 L.Ed.2d at 129 (Thomas, J., concurring in judgment).

In his concurrence, Justice Thomas rejected the plurality opinion's "primary purpose test, " that the Cellmark report was not prepared "for the primary purpose of accusing a targeted individual[, ]" as "lack[ing] any grounding in constitutional text, in history, or in logic." 567 U.S. at ___, 132 S.Ct. at 2262, 183 L.Ed.2d at 135 (Thomas, J., concurring in judgment). In his opinion, he stated that the proper primary purpose test was that "for a statement to be testimonial within the meaning of the Confrontation Clause, the declarant must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution." 567 U.S. at ___, 132 S.Ct. at 2261, 183 L.Ed.2d at 135 (Thomas, J., concurring in judgment) (citation omitted). Justice Thomas, however, concluded that while satisfying the primary purpose test is a "necessary criterion, " it is not "sufficient" to render a statement testimonial. 567 U.S. at ___, 132 S.Ct. at 2261, 183 L.Ed.2d at 135 (Thomas, J., concurring in judgment). Justice Thomas explained that he "continue[s] to think that the Confrontation Clause regulates only the use of statements bearing indicia of solemnity." 567 U.S. at ___, 132 S.Ct. at 2259, 183 L.Ed.2d at 133 (Thomas, J., concurring in judgment) (quotation omitted). Those statements, Justice Thomas explained, include "formalized testimonial materials, such as depositions, affidavits, and prior testimony, or statements resulting from formalized dialogue, such as custodial interrogation." 567 U.S. at ___, 132 S.Ct. at 2260, 183 L.Ed.2d at 133 (Thomas, J., concurring ...


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