Argued Sept. 27, 2011.
[Copyrighted Material Omitted]
Lee R. Goebes, Public Defender Service, with whom James Klein and Alice Wang and Jessica Brand, were on the brief, for appellant.
Amanda Winchester, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and John P. Mannarino and Michael Ambrosino, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, THOMPSON, and OBERLY, Associate Judges.
OBERLY, Associate Judge:
Appellant Raymond Jenkins was convicted of first-degree murder while armed, first-degree burglary while armed, attempt to commit robbery while armed, two counts of first-degree felony murder while armed, and possession of a prohibited weapon, all in connection with the June 1999 stabbing death of Dennis Dolinger. In this appeal, appellant seeks reversal of his convictions on the ground that his rights under the Confrontation Clause of the Sixth Amendment were violated when the trial court permitted the government to present the entirety of its DNA evidence through the testimony of a single expert witness without making available for cross-examination the laboratory analysts who performed the underlying serological and DNA laboratory work.
While this case was pending on appeal, the Supreme Court of the United States decided Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). We asked the parties to brief the question of " what impact, if any, the plurality and concurring opinions in Williams v. Illinois should have on resolution of the Confrontation Clause issues raised in this case[.]" We now hold that the splintered decision in Williams, which failed to produce a common view shared by at least five Justices, creates no new rule of law that we can apply in this case. Accordingly, we apply pre- Williams case law— both the Supreme Court's and our own— and conclude that the testimony and reports of the government's expert witness, Dr. Frank Baechtel, were admitted in violation of the Confrontation Clause. We further conclude that the error was not harmless,
and we therefore reverse the judgment of the Superior Court and remand the case for a new trial.
In addition to his Confrontation Clause claim, appellant argues that the trial court abused its discretion when, denying a defense discovery motion, it declined to compel the government to determine and report the number of " pairwise matches, at 9 or more loci" in the FBI and Virginia State DNA databases. We affirm the denial of the defense's discovery motion.
Dennis Dolinger was murdered in the basement of his house on Potomac Avenue, S.E., on June 4, 1999. He sustained twenty-five stab wounds to his head and neck and was already dead when emergency responders arrived. A Metropolitan Police Department (" MPD" ) Mobile Crime Unit technician, who arrived to collect evidence from the house, testified without objection that he " discovered patterns of blood throughout the house," including on a pair of jeans lying near Dolinger's body; on a bath towel and a sink stopper found in the basement bathroom (suggesting to police that " someone had gotten injured during the attack and attempted to wash their hands in the bathroom" ); on a bannister or railing leading to the second floor of the house; and on a gray pullover shirt found in a dressing room on the second floor, in which there was a chest of drawers " that it appeared ... somebody had rambled through."  The technician collected blood samples from several locations in the house but agreed that he did not " take swabbings of all the blood ... observed in the house." The medical examiner testified at trial that Dolinger's stab wounds were consistent with having been inflicted by a Phillips screwdriver.
Shortly after the murder, the MPD learned that a man identified as Stephen Watson had made several purchases using Dolinger's credit card. Police officers executed a search warrant at Watson's residence and recovered a black backpack (which Watson said he had found discarded near the King Street Metro station) and a wallet containing Dolinger's credit, identification, and bank cards. MPD officers initially arrested Watson for Dolinger's murder, but subsequent DNA testing excluded Watson as a suspect.
On November 16, 1999, the MPD received information that caused appellant to become a " person of interest." As we explained in an earlier opinion in this case reversing the trial court's pretrial order excluding the introduction of DNA evidence, United States v. Jenkins, 887 A.2d 1013 (D.C.2005):
Seeking further assistance, on November 16, 1999, the government contacted the Virginia Department of Criminal Justice Services (" DCJS" ) requesting that DCJS run the profile of the unknown person [whose blood DNA was found in Dolinger's house] through Virginia's DNA database of 101,905 previously profiled offenders. Using only eight of the thirteen loci profiled by the FBI, the DCJS reported that the evidence sample was consistent with the eight-loci profile of Robert P. Garrett, a known alias of [appellant] Raymond Anthony Jenkins. At that point, the MPD investigation focused solely on Mr. Jenkins.
Id. at 1017 (footnote omitted). As part of its investigation, the MPD obtained a search warrant to take a sample of appellant's blood, and it submitted the sample to the FBI for analysis. After a first round of testing, the FBI took another sample of appellant's blood to develop a " full 13 loci profile" and compared it to the DNA profiles that the FBI had developed from the unknown-source blood found at the crime scene.
At trial, Dr. Frank Baechtel, a forensic examiner and head of one of the FBI's DNA analysis laboratories, testified that the 13-loci DNA profile developed from appellant's blood sample matched at all loci the 13-loci DNA profiles that the laboratory had developed (before appellant became a suspect).  Dr. Baechtel testified, and his reports indicated, that he found a match between appellant's DNA and the DNA extracted from blood taken from the back of the gray shirt, from inside the pockets of the jeans discovered near Dolinger's body, from the towel and sink (a sink stopper and a swabbing of the sink itself) in the basement bathroom, and from the bannister swabbing. He testified that the likelihood of a merely coincidental match was at least 1 in 26 quadrillion in the African-American population, 1 in 870 quintillion in the Caucasian population, and 1 in 1,000 quintillion in the Southeastern Hispanic population. He further testified that Dolinger's blood also was found on the gray shirt. In conclusion, Dr. Baechtel testified that " the profiles of [appellant] or Dennis Dolinger account for all of the profiles in the blood evidence." The court did not give the jury an instruction limiting in any way the use of Dr. Baechtel's testimony or reports.
The government also called several other witnesses at trial. James West, who worked at The Fireplace, a bar frequented by appellant, testified that appellant usually wore a grayish-blue pullover shirt and blue jeans. West identified the gray shirt recovered from Dolinger's dressing room as " just like" the shirt that appellant usually wore. Anthony Scott, who knew appellant because they both " hung out" in the Dupont Circle area, also identified the gray shirt as one that appellant " wore all the time" (explaining that appellant " used to wash it in the little fountain" in Dupont Circle). Scott further identified the black backpack found during the search of Watson's home as the backpack that appellant typically carried and testified that appellant " always" kept a Phillips screwdriver inside. Scott also testified that on June 5, 1999, the day after Dolinger's murder, he saw appellant in Dupont Circle and observed that he (appellant) was " all scratched up" on his face, hands, and arm (causing Scott to ask, " Man, were you in a cat fight or something?" ) and had " little cuts" and " bruises in his hand" as if he had " gripped something real tight." Appellant was carrying over $1,000 in cash, a diamond
ring, and a " bunch of little gold chains."
Robert Bethea, who, like Scott, knew appellant from frequenting the Dupont Circle area, testified that in early June 1999, he saw appellant on the Metro. Appellant told Bethea that " he was going over to a" " white dude['s]" house " to steal stuff" and would just " fuck him up" if he didn't want to let appellant in. A few days later, Bethea again ran into appellant, who had " several pieces" of jewelry that he was trying to sell, including a diamond ring. Still later, when Bethea once again encountered appellant in Dupont Circle, appellant told Bethea that he had been in a fight with a guy, that he had " fucked him up ... [and] punished him," and that he did not know if the man was " dead or alive."
William Martin, a self-styled " jailhouse lawyer," testified that while he and appellant were incarcerated together in February 2000, appellant asked him " if he could be convicted of dried blood." When Martin told appellant, " yeah," appellant appeared " shocked." On a later occasion, Martin testified, appellant told Martin that he had " robbed a faggot" and had stabbed the " white guy" with a screwdriver and taken " a thousand dollars and some cash and a ring." Martin said appellant told him that, after the robbery, he left his backpack near the Potomac Avenue Metro station and that he was aware that another " white guy" had found the backpack and had used the credit cards. Appellant stated that he was going to allow the " white guy" to take the charge because that guy " was dying of AIDS anyway."
Appellant did not testify at trial, but the defense advanced the theory that the " attack was directed at Dennis Dolinger because Mr. Dolinger was inside that house with Raymond Jenkins and they're inside that house and they are engaging inside that house in some act of some degree of sexual activity and someone came in and didn't like what the person saw" ; and that " [t]hat person reacted, responded, attacked and in the attack Raymond Jenkins got cut and ... got out of there." Defense counsel told the jury that the " police investigation in this case missed evidence left and right" and emphasized that there were " several blood stains [in Dolinger's house] that simply just went untested."  In addition, he emphasized that evidence technicians did not swab the wearer areas of the jeans found next to Dolinger's body (which defense counsel posited belonged to the real killer) and that DNA extracted from the wearer areas of the gray shirt provided " definitive evidence of someone else['s] connection to the sweatshirt."
II. Appellant's Confrontation Clause Claim
Appellant's defense team filed a pre-trial motion to preclude the government from presenting the results of the FBI's DNA testing without the in-court testimony of the personnel who actually did the laboratory work. The trial court denied the motion, ruling that if the laboratory personnel were " available to be subpoenaed and to be called as witnesses by the defense, then ... that address[ed] the confrontation issue."  As a result, the
government presented its DNA evidence solely through the testimony of Dr. Baechtel and the reports that he prepared, which were admitted into evidence. Appellant contends that the trial court's " decision to permit the United States to introduce the entirety of its DNA evidence through the testimony of Baechtel alone violated [appellant's] rights under the Confrontation Clause" and amounted to reversible error.
We start by recognizing that the Sixth Amendment right of an accused to confront the witnesses against him is a fundamental right. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Were we unwilling to adhere to this view of the Confrontation Clause in all cases, even those that might require us to overturn a first-degree murder conviction, then " the guarantee of confrontation [would be] no guarantee at all." Giles v. California, 554 U.S. 353, 375, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).
In this jurisdiction, it is settled that " [f]orensic evidence, including DNA analysis, is not exempt from Crawford's  holding" that the Confrontation Clause of the Sixth Amendment bars the admission of testimonial hearsay against a criminal defendant at trial, unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine him. Young v. United States, 63 A.3d 1033, 1039 (D.C.2013); see also Gardner v. United States, 999 A.2d 55, 59 (D.C.2010); Roberts v. United States, 916 A.2d 922 (D.C.2007). " Permitting the defendant to cross-examine a surrogate expert who did not personally perform or observe the forensic analysis at issue is not a constitutionally permissible substitute for cross-examination of the scientist who actually did the testing." Young, 63 A.3d at 1039.
Since the Supreme Court decided Crawford, Confrontation Clause cases involving forensic evidence have turned on the meaning of " testimonial." Id. In Crawford, 541 U.S. at 51, 124 S.Ct. 1354, the Supreme Court identified " ‘ [v]arious formulations' " of the " ‘ core class of testimonial statements,’ " but the Court " declined ‘ to spell out a comprehensive definition of testimonial’ suitable for all cases." Thomas v. United States, 914 A.2d 1, 12 (D.C.2006) (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354). This court has recognized that, at a minimum, " to be testimonial, a statement must have been made, primarily, for an evidentiary purpose." Young, 63 A.3d at 1040. The Justices of the Supreme Court do not agree, however, on whether a statement must meet any additional criteria in order to be considered testimonial. In this case, we decide whether the Court's decision in Williams affects our rule in Roberts, 916 A.2d at 938, that there is no " dispute that the conclusions of FBI laboratory scientists— the serologist, the PCR/STR technician, and the examiner— admitted as substantive evidence at trial are ‘ testimonial’ under Crawford. "
A. Governing Law
1. Confrontation Clause Jurisprudence Before Williams
The Supreme Court first took up the issue of whether reports of laboratory analysts' findings are " testimonial" for Confrontation Clause purposes in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In that case, the trial court had " admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine." Id. at 307, 129 S.Ct. 2527. In a 5-4 decision, the Supreme Court held that " [t]here is little doubt that the documents at issue in this case fall within the ‘ core class of testimonial statements' " that the Court had described in Crawford. Id. at 310, 129 S.Ct. 2527 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). The documents at issue in Melendez-Diaz were " quite plainly affidavits" because they were " ‘ solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact.’ " Id. (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Moreover, the Court held, " not only were the affidavits 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 under Massachusetts law the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance." Id. at 311, 129 S.Ct. 2527 (citations and internal quotation marks omitted). Thus, the Court could " safely assume that the analysts were aware of the affidavits' evidentiary purpose." Id.
Writing separately in Melendez-Diaz, Justice Thomas, the fifth member of the majority, stated that he joined the Court's opinion " because the documents at issue in this case are quite plainly affidavits, ... [and][a]s such, they fall within the core class of testimonial statements governed by the Confrontation Clause." Id. at 330, 129 S.Ct. 2527 (Thomas, J., concurring) (citation and internal quotation marks omitted). Justice Thomas stated that he " continue[d] to adhere to [his] position [which he expressed in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) ] that the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Melendez-Diaz, 557 U.S. at 329, 129 S.Ct. 2527 (Thomas, J., concurring) (internal quotation marks omitted).
The Supreme Court returned to the issue of the Confrontation Clause and forensic laboratory reports in Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Petitioner Bullcoming was arrested on charges of driving while intoxicated, and the principal evidence against him at trial was a forensic laboratory report that was unsworn, unlike the report at issue in Melendez-Diaz, but that certified that Bullcoming's blood-alcohol concentration exceeded the threshold for the charged offense. Bullcoming, 131 S.Ct. at 2709. The State " did not call as a witness the analyst who signed the certification" ; instead, it called another analyst who was familiar with the laboratory's testing procedures but had not participated in or observed the test performed on Bullcoming's blood sample. Id. The issue before the Court was " whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification— made for the purpose of proving a particular fact— through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported
in the certification." Id. at 2710. In another 5-4 decision, the Court held that Bullcoming's " right [was] to be confronted with the analyst who made the certification[.]" Id. Relying on Melendez-Diaz, the Court held that " [a] document created solely for an evidentiary purpose ... made in aid of a police investigation, ranks as testimonial." Id. at 2717. In addition, the Court held, the report of blood alcohol analysis, although it was unsworn, could not be distinguished from the sworn certificates at issue in Melendez-Diaz. Id. (explaining that " the formalities attending the ‘ report of blood alcohol analysis' [were] more than adequate to qualify [the analyst's] assertions as testimonial" ).
Justice Sotomayor wrote separately to highlight her view that the laboratory report was testimonial " specifically because its primary purpose is evidentiary." Id. at 2719 (Sotomayor, J., concurring) (internal quotation marks omitted); see also id. at 2721 n. 3 (opining that " [f]ormality is not the sole indicator of the testimonial nature of a statement because it is too easily evaded" ). She also " emphasize[d] the limited reach of the Court's opinion," for it did not resolve the issue that might be presented in some other " substitute" witness scenarios, where " the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue," rather than someone who " played no role in producing the ... report." Id. at 2719, 2722 (Sotomayor, J., concurring).
Although Justice Thomas joined most of the opinion in Bullcoming, he did not join footnote 6, which states that " [t]o rank as ‘ testimonial,’ a statement must have a ‘ primary purpose’ of ‘ establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.’ " Id. at 2714 (Thomas, J., concurring) (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).
This court's relevant Confrontation Clause jurisprudence starts with Thomas, 914 A.2d 1, decided before Melendez-Diaz and Bullcoming. In Thomas, we applied Crawford's " various formulations" of what constitutes a testimonial statement, and we agreed with appellant Thomas that the trial court's admission in evidence of a Drug Enforcement Administration chemist's certified report in the absence of live testimony from the chemist who wrote it violated Thomas's " right ... to be confronted with the witnesses against him." Thomas, 914 A.2d at 16. The DEA chemist's report satisfied every formulation of " testimonial" articulated by the Supreme Court in Crawford: (1) the DEA chemist " was tasked by the government to provide critical expert witness testimony for use against appellant at his criminal trial," and therefore it was a " ‘ statement[ ] that [was] made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ " id. at 12-13 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354); and (2) " [i]n form and content, the report was a formal and solemn ‘ attestation’ — an affidavit, except that it was unsworn— introduced by the prosecution in lieu of the chemist's live testimony." Id. at 13. In that case, it was " difficult to imagine a statement more clearly testimonial." Id. at 13.
Following Thomas, we decided a series of cases involving Confrontation Clause claims that focused on the testimony of DNA experts who referred to forensic laboratory findings, but who did not themselves perform the underlying laboratory tests. The first of these cases was Roberts. The DNA expert who testified at appellant Roberts's trial on sexual abuse charges had not performed the serology
testing, the DNA extraction from biological material, or even the original analysis of the DNA; rather, he had reviewed the original DNA analyst's report as part of a " technical review," going through it " as if it was his ... own case," coming to " his own conclusions," and then " comparing them to the first examiner's interpretation." Id. at 937-38 (alterations omitted). He " testif[ied] in the place of" the original DNA examiner. Id. at 937. The DNA expert's opinion testimony, and in particular his " opinion that appellant could not be excluded as a contributor to the DNA evidence[,] rested on the conclusions reached by the team that did the actual laboratory analysis." Id. at 938. We held that " Thomas leaves no room for dispute that the conclusions of FBI laboratory scientists— the serologist, the PCR/STR technician, and the examiner— admitted as substantive evidence at trial are ‘ testimonial’ under Crawford. " Id. In so holding, we reasoned:
[T]he FBI laboratory scientists here were " forensic expert[s] employed by a law enforcement agency, ... tasked by the government" to perform tests providing the basis for " critical expert witness testimony ... against appellant at his criminal trial." ... To the extent that their conclusions were used as substantive evidence against appellant at trial, he was therefore entitled to be " confronted with" the conclusions in the manner the Sixth Amendment requires, that is, through the opportunity for cross-examination of the declarant.
Id. (quoting Thomas, 914 A.2d at 13). We drew no conclusions about the formality of the laboratory reports at issue in that case.
In Gardner, the government had been permitted to introduce into evidence the testimony of Dr. Robin Cotton, a representative of a private forensic laboratory that had conducted the DNA testing and analysis, and the testimony of Caroline Zervos, an FBI serology analyst. 999 A.2d at 57. " Dr. Cotton did not perform the DNA testing herself and she did not supervise the analyst who performed the testing" but performed a " ‘ technical review’ of the case file and lab[oratory] report after [they were] mailed to her." Id. at 59. Zervos likewise " did not conduct or supervise testing," but was the " ‘ technical reviewer’ of the results and final report." Id. The government did not present the testimony of any of the scientists or analysts who conducted the serology testing at the private laboratory or at the FBI. Id. at 57. At trial, both testifying experts " read directly from the reports of the analysts who conducted the tests." Id. at 59, 61, 62 n. 12.
The government " concede[d] that the conclusions set forth in the DNA and serology reports were ‘ testimonial’ " and that " the admission of these results, either through the admission of the DNA report or the expert testimony, violated appellant's rights under the Confrontation Clause ... because the scientists who actually conducted the testing were not available for cross-examination." Id. at 58-59, 59 n. 5. Citing Melendez-Diaz and Roberts, we agreed in a footnote that " there is no question that this evidence was testimonial" because the government's DNA and serology analysis was " ‘ created primarily for the government to use it as a substitute
for live testimony in a criminal prosecution.’ " Id. at 59 n. 4 (quoting Thomas, 914 A.2d at 13-14). As in Roberts, the formality or solemnity of the laboratory reports from which the testifying experts read was not a factor in our conclusion that they contained testimonial hearsay. Concluding that the confrontation violation was not harmless beyond a reasonable doubt because " the DNA evidence was the cornerstone of the government's case," we reversed Gardner's conviction. Id. at 62.
Although the Supreme Court has not agreed on the limitations of what it means to be testimonial, our own case law has established the principle that statements of DNA findings and analysis are testimonial if they are made primarily with an evidentiary purpose, regardless of their formality or any other particular criteria.
2. The Effect of Williams on Confrontation Clause Jurisprudence
The Supreme Court's most recent Confrontation Clause case has not provided any clarity. Williams was decided by a plurality opinion and Justice Thomas's opinion concurring in the judgment. During petitioner Williams's bench trial for rape, the prosecutor called as its expert a forensic specialist at the Illinois State Police (" ISP" ) laboratory, who testified that according to ISP business records, vaginal swabs taken from the victim were sent to Cellmark, an outside, accredited laboratory, and were returned to the State police laboratory " along with a deduced male DNA profile." Williams, 132 S.Ct. at 2227, 2230. The expert testified that based on her comparison of the Cellmark-developed DNA profile found in semen from the vaginal swabs and the DNA profile that had been developed by the ISP laboratory from a sample of Williams's blood taken when he was arrested on unrelated charges, Williams " cannot be excluded as a possible source of the semen identified in the vaginal swabs." Id. at 2230. Williams argued that " the expert went astray when she referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim's vaginal swabs." Id. at 2227. The Court noted that " [t]he expert made no other statement that was offered for the purpose of identifying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample [,]" and she did not " vouch for the accuracy of the profile that Cellmark produced." Id.
In the portion of its opinion relevant here, the Williams plurality held that
" even if the report produced by Cellmark had been admitted [as substantive] evidence, there would have been no Confrontation Clause violation." Id. at 2228. The plurality listed several reasons for its conclusion: " The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach" ; " [t]he report was produced before any suspect was identified[ ]" and " was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose" ; and the profile that Cellmark provided " was not inherently inculpatory." Id.
The plurality noted that all except one of the post- Crawford cases in which the Court found a Confrontation Clause violation " shared the following two characteristics" : The cases " involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct" and " they involved formalized statements such as affidavits, depositions, prior testimony, or confessions." Id. at 2242. The Cellmark report, the plurality reasoned, was " very different[,]" since " [i]t plainly was not prepared for the primary purpose of accusing a targeted individual[ ]" or " to obtain evidence for use ...