Derr v. State, 434 Md. 88

Background

Norman Derr was tried for a 1984 sexual assault; semen on the victim’s vaginal swabs produced a 13‑locus DNA profile from FBI testing (2002) that matched Derr’s CODIS profile (entered in 2004); jury convicted in 2006.
State’s expert (FBI examiner Jennifer Luttman) testified that she compared profiles, relied on serology notes (1985) and DNA test results (2002, 2004, 2006), and concluded Derr was the source “to a reasonable degree of scientific certainty.”
Trial court admitted the serology notes and DNA test results through Luttman under the business‑records exception and Md. Rule 5‑703; the actual analysts who ran the tests did not testify.
Derr appealed raising (1) Confrontation Clause violation (expert presented other analysts’ results without calling them), (2) discovery denial (request for CODIS coincidental‑match data), (3) insufficiency of evidence (reliance on database trawl and product‑rule RMP without accounting for database trawl or lab error), and (4) refusal to define “reasonable degree of scientific certainty” for the jury.
This Court (after prior reversal, U.S. Supreme Court vacatur and Williams v. Illinois) affirmed: (1) no Confrontation Clause violation because the out‑of‑court forensic results were not “testimonial” under the narrow Marks/Williams reading (formalized statements required), (2) trial court properly denied Derr’s request to compel CODIS trawl data, (3) evidence was legally sufficient, and (4) no error in refusing the proposed instruction.

Issues

Issue	Derr’s Argument	State’s Argument	Held
1. Confrontation Clause — admissibility of forensic reports via a testifying expert who did not perform/supervise all tests	Admission violated Sixth Amendment and Article 21 because analysts who produced reports were not called and Derr had no prior opportunity to cross‑examine them	Williams permits admission here; the reports were not testimonial under the narrowest Williams rationale so Clause not implicated	No violation — the serology notes and DNA results were not sufficiently formalized (not “testimonial”) so admission through Luttman did not offend confrontation rights
2. Discovery — compelled CODIS pairwise match data / database trawl numbers	Derr needed CODIS coincidental‑match counts to impeach RMP and explain database trawl risk; court should compel FBI/State to produce or search CODIS	Request would compel the government/federal agency to perform a research project; no evidence State possessed undisclosed CODIS match data; Brady/Rule 4‑263 do not require creation of new data or unfettered CODIS access	Denial affirmed — no Brady violation or Rule 4‑263 breach; State not required to create or produce nationwide CODIS matches or grant database access
3. Sufficiency of evidence — can a database trawl + RMP alone identify perpetrator?	RMP was misleading because it didn’t quantify lab error or increased coincidental‑match probability from database trawling; conviction unsupported without corroboration	Challenges to methodology and error rates go to weight, not legal sufficiency; DNA match plus other circumstantial evidence suffices	Evidence sufficient — a rational juror could find Derr was source beyond a reasonable doubt based on Luttman’s testimony and other circumstantial proof
4. Jury instruction — definition of “reasonable degree of scientific certainty”	Jury required a definition to evaluate expert opinion; refusal prejudiced Derr because expert opinion was sole identification evidence	Proposed instruction unnecessary; existing pattern instructions adequately covered credibility and weighing of expert testimony	No error — pattern instructions on expert credibility and weighing scientific evidence sufficiently covered the issue

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (establishes testimonial hearsay framework for Confrontation Clause)
Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (forensic certificates can be testimonial; declarant must be available for cross‑examination)
Bullcoming v. New Mexico, 564 U.S. 647 (surrogate testimony about lab report results can violate Confrontation Clause)
Williams v. Illinois, 132 S. Ct. 2221 (plurality/ fractured decision narrowing “testimonial” for forensic reports; Marks analysis applied)
Marks v. United States, 430 U.S. 188 (framework for extracting controlling rationale from fragmented Supreme Court opinions)
Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence review)
Brady v. Maryland, 373 U.S. 83 (prosecutorial suppression of favorable, material evidence violates due process)
Armstead v. State, 342 Md. 38 (Maryland acceptance of product‑rule methodology for DNA RMP calculations)