United States v. Katso
2014 CCA LEXIS 243
A.F.C.C.A.2014Background
- Victim (SrA CA) was heavily intoxicated, later woke to being raped and identified the appellant as her assailant; AFOSI collected biological samples from both.
- USACIL analyst Fisher performed DNA testing and produced a report linking the appellant to semen on the victim’s swabs; a second analyst, Davenport, performed a technical review.
- Fisher became unavailable to testify at trial; the Government offered Davenport as a surrogate to testify about the DNA results and his independent review.
- Defense objected under the Sixth Amendment Confrontation Clause, arguing Davenport would be repeating Fisher’s testimonial statements. The military judge allowed Davenport to testify.
- Davenport testified the lab followed protocol and (among other things) that the appellant’s DNA matched DNA in the victim’s samples; the written report was not admitted.
- The court of appeals concluded Davenport repeated testimonial hearsay (Fisher’s report) and that the error was not harmless beyond a reasonable doubt; it set aside convictions for sexual assault and housebreaking and dismissed the unlawful-entry specification for failure to state the terminal element.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether admitting substitute analyst’s testimony violated the Confrontation Clause | Davenport would repeat Fisher’s testimonial lab findings tying the appellant by name to the DNA and thus deny right to confront Fisher | Expert may rely on others’ lab work and state independent opinions; surrogate may testify about his independent conclusions | Court held Davenport impermissibly repeated testimonial hearsay from Fisher; Confrontation Clause violated |
| Whether error was harmless beyond a reasonable doubt | DNA testimonial error likely contributed to conviction and was not harmless | DNA evidence was cumulative and case against appellant strong (victim ID, circumstantial evidence) | Court found government failed to prove harmlessness; set aside convictions for Charges I & II |
| Whether unlawful entry specification stated the terminal element (Article 134) | Specification omitted terminal element, depriving appellant of notice | Government argued facts on the record cured the defect | Court found omission not extant or uncontroverted on the record; dismissed Charge III and its specification |
Key Cases Cited
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (Sup. Ct.) (lab report surrogate testimony may violate Confrontation Clause)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (Sup. Ct.) (certified lab reports are testimonial evidence requiring confrontation)
- Williams v. Illinois, 132 S. Ct. 2221 (Sup. Ct.) (fractured decision on whether out-of-court lab reports are testimonial; plurality and concurrences conflicted)
- Blazier v. United States, 69 M.J. 218 (C.A.A.F. 2010) (expert may rely on others’ work but may not be conduit for testimonial hearsay)
- Sweeney v. United States, 70 M.J. 296 (C.A.A.F. 2011) (statement is testimonial if objectively made to be available for later trial use)
- Chapman v. California, 386 U.S. 18 (Sup. Ct.) (harmless-error standard: prosecution must show error was harmless beyond a reasonable doubt)
- Kreutzer v. United States, 61 M.J. 293 (C.A.A.F. 2005) (de novo review of harmlessness for Confrontation Clause errors)