Derr v. State
29 A.3d 533
| Md. | 2011Background
- Derr was convicted in the Charles County Circuit Court in 2006 of multiple sexual offenses based on DNA evidence linking him to a 1984 rape, presented through surrogate testimony by Dr. Jennifer Luttman, who did not perform or observe the testing.
- 1985 FBI serological report identified sperm/semen in the PERK samples; 2002 DNA analysis produced a CODIS match to Derr; 2004 new reference DNA sample tested under supervision of Dr. Luttman, who did not bench-test in 2004 and did not observe bench work closely.
- The State sought to admit the 1985 serology and 2002/2004 DNA results through surrogate testimony rather than calling the original analysts, prompting defense Confrontation Clause challenges.
- Circuit Court denied Derr’s Confrontation Clause challenge, applying hearsay/business records rationale to the serology report and allowing surrogate testimony; the defense preserved further challenges on appeal.
- The Court of Appeals granted certiorari and reversed in part, holding that the evidence at issue was testimonial and subject to Confrontation Clause safety, thus reversing for new trial, with costs to be borne by Charles County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause applicability to DNA/serology evidence | Derr: surrogate testimony violated Confrontation Clause because original analysts did not testify. | State: business records/Rule 5-703 justification allowed surrogate testimony and underlying data. | Yes; surrogate testimony violated Confrontation Clause; misapplication of hearsay rules. |
| Impact of 2002 and 2004 DNA testing on confrontation | Derr: 2002/2004 tests produced testimonial statements that require live testimony by the performing analyst. | State: Luttman’s testimony can convey results as independent opinion under Rule 5-703. | Yes; 2002 test inadmissible via surrogate; 2004 test may be admissible if the analyst observes the testing, remand possible. |
| Effect of Melendez-Diaz/Bullcoming line of cases on Maryland practice | Derr: post-Melendez/Bullcoming requires confrontation of the analyst who performed the testing. | State: case-specific distinctions may permit surrogate testimony where appropriate under Bullcoming’s narrow readings. | Md. Court of Appeals adopts Bullcoming framework; surrogate testimony insufficient for testimonial evidence; requires live analyst or remand for retrial. |
Key Cases Cited
- Melendez-Diaz v. Massachusetts, 557 U.S. 250 (U.S. 2009) (forensic certificates deemed testimonial; must have analyst testify)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (surrogate testimony cannot cure confrontation when data/statement are testimonial)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial statements subject to Confrontation Clause; live testimony required)
- Davis v. Washington, 547 U.S. 813 (U.S. 2006) (distinguishes testimonial vs. nontestimonial during police interrogation)
- Rollins v. State, 392 Md. 455 (Md. 2006) (business records and hearsay analysis pre-Melendez; context for Confrontation Clause in Maryland)