Pendergrass v. State

PENDERGRASS, Richard

Appellant-Defendant, Indiana, Appellee-Plaintiff.

STATE 71A03-0712-CR-588.

No. Appeals Indiana.

Court of

July Kimmell,

Jeffrey Bend, IN, E. South Attorney Appellant. Carter,

Steve Attorney General of Indiana, Whitehead, Deputy J.T. Attorney General, IN, Indianapolis, Attorneys for Appellee.

OPINION RILEY, Judge. THE

STATEMENT OF CASE Appellant-Defendant, Richard Pender- grass (Pendergrass), his appeals conviction for two molesting, Counts of child A Class felonies, Ind.Code 35-42-4-3. Affirmed.

ISSUES Pendergrass raises two issues on appeal, which we restate as follows: (1) Whether the trial court abused its discretion admitting several ex- testimony hibits and related con- (DNA) cerning deoxyribonucleic acid results without the the laboratory technician per- who testing; formed the actual (2) Whether Pendergrass’ confrontation- al rights pursuant to the Sixth Amendment of the United States Constitution were violated when he was denied opportunity to con- front and cross-examine the labora- tory technician performed who analysis. FACTS AND PROCEDURAL HISTORY born on June daugh- (Mother) ter of D.W. and Pendergrass. parents divorced when she was ap- proximately one half years and one old. Originally, siblings C.P. and her lived with however, May Mother; pregnant. Day, was was On Mother’s when C.P. their C.P. informed her Mother that she children moved years age, eleven family pregnant was Pendergrass and his extended Bend, the father of her unborn child. Mother South in a residence located Joseph County notified Police De- and her the St. Pendergrass, Indiana. sister, J.P., partment, specifically speaking a to Detec- shared downstairs younger Metcalf). (Detective bed, tive slept Steven Metcalf Pendergrass bedroom. blankets on the girls slept the on while police As a Metcalf report, result floor. investigated Pendergrass. In June 2003, Mother, C.P., accompanied by her years was eleven old Pender- C.P. inappropriately. had an C.P.’s abor- Following to her grass started touch abortion. tion, took asleep possession time it C.P. was Detective Metcalf happened, The first testing. col- vagina her while the fetus for DNA He also Pendergrass touched and up told lected swab from C.P. and a blood clothed. woke buccal she was She complied. sample Pendergrass Af- test- stop. Pendergrass for DNA him to time, ing. gave pills tagged C.P. All the evidence was Pendergrass that ter believed to be stored the freezer located at every night which C.P. sister, County Al- Joseph to the St. Post. pills. According Police sleeping though “firmly Detective Metcalf believed drugs Pendergrass gave to C.P. were the “dumb, acting like that had sent these items to the that left pills [he] red C.P. (Tran- mentally. Laboratory],” Police he [Indiana or “slow” State dumbfounded” (Tr. 308). 277). gave actually p. never did so. It was Pendergrass also J.P. script p. medicine, not until 2006 that Met- Nyquil. May as Even Detective cold such gave calf his omission the evi- pills Pendergrass her discovered though n out,” to the Police usually her “black at dence was sent Indiana State would make (Tr. 76). DNA After test- times, up. Laboratory testing. for p. she would wake ing, given pa- it determined that Pendergrass sitting next was C.P. remembered results, ternity a 99.9999 touching vagina index there was her on the floor and her clothes, percent Pendergrass likelihood that inserting her sometimes his under of the fetus aborted vagina. put into her Whenever he father C.P. fingers vagina, her it made fingers his inside of filed an On June State 73-74). (Tr. “dirty.” On p. her feel sever- Information, with charging Pendergrass occasions, kiss al he would also her A molesting, two of child Class Counts mouth. tongue his in her There putting felonies, § 35-42-4-3. On Octo- Ind.Code up times woke Pender- were C.P. 1, 2007, trial Dur- jury commenced. ber bed, with clothes off and Pen- grass’ her admitted, trial, ing the trial court over top Although had dergrass on of her. C.P. counsel, objection three ex- of defense feeling anything, after- no recollection of testing concerning hibits wards, she notice an abnormal dis- would days la- thereto. Four testimony related in her charge underwear. ter, jury found on October No- thirteen, Pendergrass as On began guilty charged. feel- When she was C.P. 1, 2007, sentencing hearing, a vember ill and took her to see ing Pendergrass Pendergrass to trial sentenced court symptoms, doctor. Given her the doctor I and forty years incarceration on Count sample. Following asked C.P. a urine on twenty-five years incarceration Count sample, doctor the results the urine consecutively. II, to run Pendergrass that she sentences informed C.P. and appeals. Index, now Pendergrass Paternity Additional prepared as by Dr. necessary. as provided Conneally, facts will be which establishes a 99.9999% probability being the fetus’ AND DECISION DISCUSSION biological father. I. Admission Evidence Pendergrass’ overarching claim with re-

Initially, Pendergrass contends gard to all three exhibits focuses on the abused its discretion purported hearsay statements contained admitted, objection, when it over his the within each document. With respect the DNA per results from Exhibits 1 and which were admitted at formed the Indiana State Police Labo through testimony of Lisa Black ratory related thereto. We (Black), supervisor Powers’ at the Indiana review a trial court’s decision to admit or State Police Laboratory, Pendergrass as- exclude evidence for an abuse of discre serts that the hearsay documents include Design, tion. Builders & Sullivan Inc. v. only statements and thus can be admitted Haven, Inc., Home Lumber New 834 if the of documents fall within one of the (Ind.Ct.App.2005), reh’g recognized hearsay exceptions. In this denied, trans. denied. An abuse of discre light, Pendergrass disputes the Exhibits’ tion occurs if a trial court’s decision is admissibility based on Indiana Evidence clearly against logic and effect of the 803(8)(a d) Rule through which prohibits facts and circumstances before the court. the introduction investigative reports by Id. Moreover we will not reverse the trial police and other law enforcement person- court’s admission of evidence absent a nel. With regard to the admission of showing prejudice. State’s Exhibit which was introduced through Dr. Conneally’s testimony, Pen-

Specifically, Pendergrass contests the dergrass objects that the document was exhibits, i.e., particular admission of three based completely almost “impermis- on the 1, 2, State’s Exhibits and 3. State’s Exhibit sible findings of (Ap- [Powers].” Analysis, is a prepared by Certificate of 5). pellant’s Br. p. hand, On the other (Pow- biologist, forensic Daun C. Powers State asserts that all three ers), Exhibits were employed by the Indiana State Police properly admitted under the business rec- Laboratory. The Exhibit reflects the re- ord exception to the hearsay rules. See sults of Powers’ DNA extraction from a 803(6). Ind. Evid. Rule sample fetus, tissue from the arm of the buccal swab taken from and Pen- the use of DNA has become dergrass’ sample. blood State’s Exhibit prevalent cases, in criminal it came as a Powers, also prepared by contains the de- surprise to this court that after a thorough velopment C.P.’s, Pendergrass’, and the law, review of the case no precedent exists fetus’ Paternity Analysis.” “Profiles for establishing how documents explaining the 2). (Appellant’s App. p. The pro- Exhibit underlying analysis of DNA testing may necessary vides the information to estab- be admitted at a criminal trial. We will paternity individuals, lish between the if discuss the admissibility of each Exhibit in any. This information was subsequently turn. submitted to Dr. Conneally, Michael M.D. A. State’s Exhibit (Dr. Conneally), a professor retired of hu- genetics, man human genetic before, disorders and As mentioned Exhibit is DNA at University Indiana Medical Cen- Analysis Certificate of which compiled ter in Indianapolis. State’s Exhibit 3 is the results of Powers’ DNA extraction the arm the asserts that ei- sample from is from a tissue an fetus, swab, investigative report ther excluded from buccal aborted (a) (b) or finding subsections a factual sample. Pendergrass’ blood Pender- (c) (d). admission, excluded subsections The arguing that grass contests this hand, on the other Ex- claims that was inadmissible under each the document hibit 1 803(8). admitted R. exceptions of Evid. the four 803(6), Evid R. regularly records of con- 803(8) Rule states: Indiana Evidence activity. ducted business following not excluded The are “DNA The words test results” are rule, though the declarant even which, uttered, not magic words once available as witness. open. cause the doors of (8) Reports. Public Records and Un- 35-37-4-13(b)1 Although Indiana Code the sources information or other less per makes DNA evidence se admissible lack of trustwor- circumstances indicate inquiry without into the evi an whether thiness, statements, records, reports, scientifically particu dence is in a reliable form, of compilations any pub- data case, statutory language merely lar the setting office or forth its agency, lic reliability establishes the of the evidence regularly re- regularly conducted introducing and the party the evidence will activities, matters corded or observed comply customary still need to the by to a pursuant duty imposed law rules of evidence. duty a to report, as to which there was Here, by compiled State’s Exhibit was resulting from an in- findings or factual through Powers at the and admitted trial authority to vestigation made Black, supervisor of at Powers’ by following law. The are granted Laboratory. the Indiana State Police this to the rule: exception within supervises Black that she nine testified (a) investigative by police and reports the employees, testing process, reviews personnel, except other law enforcement general control of quality and oversees the by in a offered an accused criminal when laboratory. the work at performed the (b) case; reports prepared investigative technical provides and admin- She both office, government, public a by or for done testing istrative review of the DNA agency an it in a or when offered laboratory. gen- Black clarified (c) in factual party; case which it is jury testing procedures eral to the DNA government in findings offered specifically and stated that she reviewed cases; (d) findings factual criminal testing samples Powers’ taken DNA resulting investigation special fetus, C.P., Pendergrass. from C.P.’s case, incident, or particular complaint, In N.E.2d 789 except an accused in a Jenkins v. offered denied, denied, (Ind.1993), reh’g cert. criminal case. en- provides: agency ment of the law Code exercise 1. Indiana 35-37-4-13 defined; agency’s investigative function. forcement analysis” DNA "Forensic admissi- (b) hearing, re- bility In a criminal section, (a) As used in "forensic DNA analysis this DNA are admissible sults of forensic process analysis” means an identification expert tes- in evidence without an antecedent unique genetic an which the code of individu- provides a timony DNA that forensic deoxyri- carried al that is the individual’s identifying trustworthy and reliable method of (DNA) compared genetic acid bonucleic genetic ma- in an characteristics individual's bodily codes carried DNA found sub- terial. samples by a law stance obtained enforce- U.S. 115 S.Ct. 130 L.Ed.2d 21 the Indiana Laboratory State Police de- (1994), supreme our court was asked to pends on State’s Exhibit the Certificate laboratory decide whether a technician’s Analysis, operate its business. Rath- concerning testing was a by service offered the social services involved in DNA testing, admission is agency and report would become the by harmless because of use permanent property govern- of an external witness. Id. such, agency). ment State’s Exhibit 1 agree While we with the ultimate cannot be characterized as a record “kept result reached in admissibility of Jenkins — regularly course of a conducted will documents —we address the issue 803(6). activity.” business See Evid. R. disregarded by court, ie., the Jenkins’ glance, At first State’s Exhibit whether by documents created a laborato appears to fall squarely within ry the first technician at the Indiana State Police part public records Laboratory concerning exception as analysis are 803(8). stipulated by Evid. R. A exceptions admissible under the Certifi to the hearsay However, Jenkins, Analysis cate of prepared by rules. unlike employee an we do not believe the of the Indiana Laboratory business record ex State Police 803(6)2 ception pursuant clearly to Evid. R. a report public comes of a agency setting play. into It appear does not to us that forth factual findings resulting from an 803(6) dum, record, 2. provides Indiana Evidence Rule report, as compilation, or data all follows: as shown or affidavit of the witness, Regularly Records of qualified Conducted Ac- custodian or other Business unless memorandum, record, report, A tivity. or the source of information or the method or form, acts, events, compilation, any data in of preparation circumstances of indicate a lack conditions, diagnoses, opinions, or made at or of trustworthiness. The term "business” as by, near the time or from information trans- business, used in this Rule includes institu- by, person knowledge, kept mitted a if in tion, association, profession, occupation, and regularly the course of a conducted business kind, calling every whether or not conduct- activity, regular and if practice it was the profit. ed for activity that business to make the memoran- authority ings. findings Id. Factual investigation made are conclusions 10-13-6-6(2). by an investigator drawn from the granted by law. See I.C. facts. 803(8) Id. at 1051. This in However, would be contrast to Evid. R. continues listings, or “simple simple a excep- recordation of statements from its excludes some numbers and like.” Id. at 1054. If the rule. now tion report record or factual does contain find- trial have maintains that the court should then the ings, court must move on to step as it is found inadmissible three and whether the report determine to the exceptions under all four excluded prepared advocacy purposes for or in (a) re- public investigative rule: records If anticipation litigation. the report ports and other enforcement by police law advocacy or record was for prepared pur- by an ac- personnel, except when offered anticipation or in poses litigation, then it (b) case; investigative in a criminal cused hearsay. is inadmissible Id. Even if the reports government, or a prepared trial court determines that the record or office, public an agency or when offered hurdle, report clears final the record (c) party; it in a case which it is a report may or be if it inadmissible is not findings government offered factual if probative relevant or its value is sub- (d) cases; findings criminal factual stantially outweighed by danger of un- of a resulting special investigation issues, prejudice, fair confusion of the or incident, case, ex- particular complaint, misleading jury. Evid. R. 402 See in a cept offered an accused criminal case. Applying Ealy step first to the facts “factual supreme analyzed Our case, of this we that the conclude Certifi- findings government offered Analysis cate does not relate to mate- Ealy depth criminal cases” exclusion in rially contested issue before the court. (Ind.1997) 685 N.E.2d 1047 compilation State’s Exhibit is a of data determining three-step test for crafted derived from the DNA of the fe- under tus, C.P., and This Pendergrass. mere subpart. Ealy The has since been is compilation not contested Pender- in to all of the exclusions listed extended the grass. inquiry step As into the first is 803(8). State, R. Shepherd Evid. See in negative, answered the 1 State’s Exhibit 318, 2 690 326 n. (Ind.Ct.App.1997), N.E.2d hearsay grounds. is not inadmissible on denied; Bailey v. trans. 806 However, proceeding even to the second 329, (Ind.Ct.App.2004), de 333-34 trans. 1 find Exhibit step, we that State’s does nied. as findings not contain factual defined Application Ealy of the test mandates Rather, Ealy. Powers detailed State’s that a court first determine whether the Exhibit the evidence received from the report findings that ad- or record contains Department for Joseph County St. Police materially dress a contested issue analysis the further and recorded results If the Ealy, fetus, case. 685 N.E.2d at 1054. DNA on the analysis of the inquiry step in the first answered in the swab, is Pendergrass’ blood as buccal negative, analysis such, and the ends there her. observed contested report record or is rendered inadmissi- a recording physical exhibit is conditions Otherwise, hearsay grounds. ble they on were observed Powers akin to a as step, proceed simple must the second recordation numbers and there- Ealy if admissible test. requires which court to determine fore under Con- we that the trial court report sequently, factual find- conclude record contains by admitting its decision did not abuse C. State’s Exhibit 3 State’s' Exhibit 1. See Sullivan Builders & represents State’s Exhibit 3 Inc., N.E.2d at 133. Design, Index, Paternity as prepared Dr. Con- neally, which percent establishes a 99.9999 B. Exhibit 2 State’s probability Pendergrass being the fetus’ prepared Exhibit also State’s biological father. This document was ad at through and admitted Powers at trial through testimony mitted of its testimony, develop contains the Black’s author, Conneally. Dr. His clari C.P.’s, Pendergrass’, ment of and the fetus’ although fied that he authored the Paterni Paternity Analysis.” (Appel “Profiles for ty Index and calculated the probability 8). The App. p. specifies lant’s Exhibit score, entirely this result was upon based present sixteen markers an individual’s his interpretation of the numerical values Here, numerical sample as a value. contained in State’s Exhibit the Profiles too, Pendergrass contests the admission of Paternity Analysis. Pendergrass dis asserting it the document falls within one putes of Exhibit claim public exceptions records rule ing may that the “State expert not use an 803(8). of Evid. R. as a hearsay conduit to introduce the statements of another witness that it has As with State’s Exhibit State’s Exhib- 7). produce.” failed to (Appellant’s Br. p. it 2 properly Appli- admitted trial. Initially, we note that State’s Exhibits 1 Ealy cation of the test indicates first and 2 were admitted as excep- Paternity Analysis the Profiles for does tions to the rule pursuant to Evid. materially not relate to a contested issue 803(8). R. These exhibits had been admit- before the trial court. State’s Exhibit is prior Conneally ted to Dr. taking the numerical, compilation uncontested Accordingly, stand. Conneally Dr. did not data from the DNA derived introduce statements when dis- fetus, C.P., Pendergrass. theAs first cussing expert opinion concerning his Pen- inquiry step into the first is answered dergrass’ probability of being the fetus’ negative, not inad- biological father. However, hearsay grounds. on missible Furthermore, regard tes- even applying step, the second we find that timony, Indiana’s Rule of Evidence 703 State’s Exhibit does not contain factual specifies: Rather, findings by Ealy. defined as The facts or data in particular assigns

State’s Exhibit Powers numeri- case upon which an expert opinion bases an cal values to the sixteen markers found in may or inference be fetus, C.P., perceived by those the DNA of the samples or made known to at or be- Pendergrass. does not interpret She hearing. Experts may fore the values, testify any- reach a conclusion or infer to opinions based on inadmissible hear- thing such, enumeration. say, provided that it is of the type rea- is, contested Exhibit like State’s Exhibit sonably upon experts relied recording physical a mere conditions as field. they were observed Powers and there- Ealy

fore under the admissible test. Con- Here, only it statutorily is not enacted in sequently, we conclude that the trial court I.C. 35-37-4-13 that “forensic DNA did not by admitting abuse its discretion analysis provides trustworthy and reli- State’s Exhibit 2. See Sullivan Builders & able method of identifying characteristics Inc., Design, material,” 834 N.E.2d at 133. in an genetic individual’s but Dr. However, the only App.2006), that the meth- trans. denied. testified Conneally also existing did comment on Supreme Court reliance calculating paternity od of hearsay exceptions, stating hear “[m]ost 1 and 2. to State’s Exhibits and reference say exceptions covered statements that universally method is clarified that this He their nature were not testimonial —for ex community. Ac- the scientific used within ample, business records or statements conclude that State’s cordingly, we Crawford, furtherance of a conspiracy.” at trial. properly admitted 3 was 56, 124 541 U.S. S.Ct. Rights II. Confrontation deciding Even without whether the contends that Lastly, Pendergrass 803(8) exception of Evid. R. public records admitting evidence erred the trial court hearsay exceptions existing is one of the right his Sixth Amendment in violation of statements, that covers non-testimonial we examine witnesses to confront and cross that Exhibits 1 and are not find State’s Washington, 541 v. Crawford subject It is to the strictures Crawford. L.Ed.2d 177 124 S.Ct. U.S. that well established Confrontation (2004). that as In he maintains particular, apply does not to statements admit Clause 1 and 2 are testimonial Exhibits State’s proving ted for other than reasons nature, have been the documents should matter Id. at 59 n. truth of the asserted. trial testimo through Powers’ introduced (citing 124 S.Ct. 1354 Tennessee that had established ny, unless State Street, 409, 414, 105 471 U.S. S.Ct. testify and Pender- she was unavailable (1985)). Here, L.Ed.2d 425 State’s Exhib opportunity for cross- grass prior had a prove 1 and 2 were not admitted to its examination. they molested instead of the Sixth merely provided The Confrontation Clause context for Dr. Conneal that, clarify all crimi- provides ly’s opinion. “[i]n Amendment Both documents enjoy parental the accused shall for the prosecutions, procedures nal and basis with the Dr. right percentage ... to be confronted as calculated probability Crawford, sum, In against Conneally. him.” In we conclude that the witnesses Supreme Court determined Exhibits did United States admission of State’s right Clause bars “admis- to con implicate Pendergrass’ that the Confrontation not statements of a witness him. against sion of testimonial front the witnesses at trial unless he appear [does] who CONCLUSION testify, and the defen- unavailable to [is] foregoing, we conclude Based on the prior opportunity had a for cross- dant had admitted 53-54,124 the trial Id. at S.Ct. 1354. examination.” 1, 2, and 3 and related essence, Exhibits drew a line between In Crawford analysis and testimony concerning DNA and non-testimonial testimonial tes- result without the subsequent a definition of testimoni- providing without laboratory technician who evidence,3 timony granting the State latitude al testing; and Pender- the actual performed laws in relation to developing their rights pursuant to confrontational hearsay. grass’ Richardson non-testimonial See (Ind.Ct. States State, Amendment of the United the Sixth v. (2006), believe but do not expanded 165 L.Ed.2d has been 3. We note that Crawford upon v. result in the instant and clarified Hammon decisions affect our those together with Davis v. which was decided case. Washington, S.Ct. 547 U.S. implicated Constitution were he opportunity

was denied the to confront and laboratory

cross-examine the technician analysis. performed

who the DNA

Affirmed.

ROBB, J., concurs. C.J.,

BAKER, concurs in result with

separate opinion.

BAKER, Judge, concurring Chief re-

sult.

I concur in the result reached

majority it applied separately

reach that I result. write Pendergrass challenge

add that raises no Therefore, testimony.

to C.P.’s even if the

exhibits at had issue been admitted erro-

neously, I believe that the error would

have been harmless because C.P.’s testi-

mony molested her

would, own, on its have been sufficient to

support Pendergrass’s conviction.

Thomas WILLIAMS Sanford

Kelsey, Appellants-

Plaintiffs,

Kelly Eugene Papa THARP and John’s

U.S.A., Inc., Appellees-Defendants.

No. 29A02-0707-CV-625. Appeals

Court of of Indiana.

July 2008.

Rehearing Sept. Denied notes fall within er, report is compiled for the sole exception the business record to the hear- benefit of the pursue State to an action say rule where the trial court admitted the against Pendergrass. Unlike financial through documents super- technician’s statements, inventory records, or other ad- testimony. pur- visor’s Id. 794. For operational ministrative or tra- documents poses analysis, its Jenkins’ court ditionally allowed under the business rec- argument assumed “for the sake of ords exception, State’s Exhibit 1 appears laboratory notes do not fall under the to be a product substantive end aof ser- exception.” business record Instead vice offered the Indiana State Police investigating of the tech- Laboratory government to a agency and notes, supreme nician’s court focused which permanent becomes the property of on opinion who based his on the See, that agency. e.g., In re Termination contested notes and stated that ex- “[a]n E.T., Parent-Child Relationship pert is allowed an opinion to base on facts (Ind.2004) (report com- or data that are not admissible evidence piled by social agency services describing if they type are of the reasonably relied home visits and supervised visits are not upon by experts Thus, in the field.” Id. admissible under the business records ex- the court concluded as these laborato- ception to rule report as this ry by every supervisor notes are used

Case Details

Case Name: Pendergrass v. State

Court Name: Indiana Court of Appeals

Date Published: Jul 8, 2008

Citation: 889 N.E.2d 861

Docket Number: 71A03-0712-CR-588

Court Abbreviation: Ind. Ct. App.