Lead Opinion
Affirmеd by published opinion. Judge KING wrote the opinion, in which Judge SHEDD joined. Judge FLOYD wrote an opinion concurring in the judgment.
OPINION
Kevin Tyrelle Summers appeals his drug trafficking and firearm convictions, entered in the District of Maryland in accordance with the jury’s verdict. Summers contends that the district court erroneously admitted into evidence a jacket recovered from the vicinity of his arrest. He asserts further that the court compounded its error by declining to exclude, on Confrontation Clause grounds, expert evidence concerning DNA testing performed on the jacket, together with evidence documenting the jacket’s handling and custody during the testing process. Discerning no revеrsible error, we affirm.
I.
During the evening of November 18, 2004, Summers, wearing a black North Face-branded jacket, stood with another man near the corner of Glacier Avenue and Fable Street in Capitol Heights, Maryland. Corporal Patrick Hampson, a uniformed detective with the Prince George’s County Police Department, emerged from his cruiser to ask the pair about an exchange of gunfire that had occurred shortly before at the intersection. Both men fled, with Summers sprinting down Glacier Avenue past undercover detectives Chad Schmick and Kevin Morris, who were parked at the curb. Summers detoured through a couple of backyards on Kayak Avenue bеfore surrendering to Morris. By then, however, Summers was no longer wearing the jacket.
Hampson and Schmick found a black North Face jacket atop one of the houses along Summers’s flight path. Hampson placed the jacket and its contents — a Hi-Point Model C 9mm handgun, eleven rounds of ammunition unloaded from the pistol’s clip, and a large packet containing more than ninety grams of crack cocaine— inside separate evidence bags for transport in his cruiser. Hampson filled out property receipts on the items to catalog them and to direct forensic examination.
On March 7, 2005, Summers was indicted for possession with intent to distribute сrack, in violation of 21 U.S.C. § 841(a)(1) (“Count One”), and possession of a firearm by a felon, contravening 18 U.S.C. § 922(g) (“Count Two”). A superseding indictment of May 4, 2006, charged Summers with the additional offense of possession of a firearm during and in relation to a drug trafficking crime, conduct proscribed by 18 U.S.C. § 924(c) (“Count Three”).
Following the federal indictment, the county police sent a black jacket to the FBI’s Baltimore field office. The jacket was then forwarded to the agency’s laboratory in Quantico, Virginia, arriving at the Evidence Control Unit (the “ECU”) on May 11, 2005. The ECU routed the jacket to DNA Analysis Unit 1, where, according to an internal log, it was delivered to storage on May 13, 2005. The log shows that FBI analysts took possession of the jacket on May 18, 2005, to perform DNA testing, then shuttled it back to storage on May 26,
At trial, a black jacket was marked for identification as Government’s Exhibit 1. Asked whether he recognized the exhibit, Hampson answered that “[i]t looks like the black Northface coat the defendant was wearing.” J.A. 73.
The government’s case-in-chief otherwise featured the expert testimony of Brendan Shea, a forensiс examiner at the Quantico laboratory who supervises Unit l’s analysts and directs them to perform particular tests on evidence. After identifying Government’s Exhibit 1 as the coat submitted to the lab, Shea explained that he had directed his subordinate analysts to conduct two methods of polymerase chain reaction based, short tandem repeat typing on the jacket. The lab also performed DNA typing on buccal swabs taken from Summers’s mouth. Shea compared the typing data, testifying that although DNA from at least four different people was found on the jacket, Summers was the major contributor.
Shea documented the typing results and his conclusions in a three-page report. The report contained a table juxtaposing the numerical identifiers of the allele found at corresponding loci of the DNA extracted from the jacket and the buccal swabs, revealing an exact match. Shea stated “to a reasonable degree of scientific certainty” that Summers was the major DNA contributor, statistically calculating the probability of a random match as equal to or less than one in 280 billion. See J.A. 524-25. Shea signed the report, and no other lab employee was named therein or testified at trial. The report was admitted into evidence as Government’s Exhibit 25.
The government presented no evidence of the jacket’s whereabouts from the time Corporal Hampson placed it in his cruiser until it arrived at the FBI laboratory. While the jacket was at the lab, the internal log documented its movement within Unit 1. The log reflects that four lab employees signed for and took custody of the jacket at different times. Based on the varying legibility of their signatures, some of the employees’ identities are more susceptible than others of being ascertained. It is clear, however, that none of them were Shea, though he did initial the log at its bottom right corner. See J.A. 200. The log was admitted into evidence as part of Defendant’s Exhibit 3.
On cross-examination, Shea acknowlеdged that he could not confirm that the jacket he tested was the one that Hampson recovered. Though verifying the authenticity of the log, Shea could only speak in generalities concerning the jacket’s safekeeping during the time that it was housed at the lab, testifying that the jacket would have been subjected to the standard routing and inventory process. Arguing to the jury at closing, defense counsel emphasized Shea’s concession: “Brendan Shea told you, six or seven months, I don’t know what happened to that jacket. I can’t tell you that that jacket is the same jacket that was allegedly pulled off of Kevin Summers.” J.A. 504-05.
Counsel’s argument ultimately failed tо persuade the jury, which found Summers
II.
We review for abuse of discretion a trial court’s decision concerning the admissibility of evidence. See United States v. Myers,
III.
The Sixth Amendment affords a criminal defendant “the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Summers maintains that he was convicted by the testimony of witnesses whom he was not permitted to cross-examine, in derogation of the Confrontation Clause. According to Summers, the government was constitutionally compelled to produce at trial the laboratory employees who signed the internal log, along with the subordinate analysts who actually conductеd the DNA typing upon which Shea’s expert conclusions were premised.
A.
In Crawford v. Washington,
Crawford changed the law to condition the admission of such statements on (1) the witnеss being unavailable at trial, and (2) the defendant having had the prior opportunity to cross-examine the witness. Crawford applies whenever “testimonial evidence is at issue.”
The distinction between testimonial and nontestimonial statements came to the forefront in Davis v. Washington,
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution .... This is not to imply, however, that statements made in the absence of any interrogation are necessarily non-testimonial .... And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontatiоn Clause requires us to evaluate.
Davis,
About a year after the Supreme Court’s decision in Davis v. Washington, we had occasion to apply its teachings in United States v. Washington,
Next, in Melendez-Diaz v. Massachusetts,
Not long thereafter, we decided United States v. Johnson,
Most recently, the Supreme Court issued its opinion in Bullcoming v. New Mexico, — U.S. -,
The Supreme Court vacated the defendant’s conviction: “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the
Writing separately, Justice Sotomayor pointed out that Bullcoming “is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited сonnection to the scientific test at issue.”
B.
Against the backdrop of Crawford and the subsequent authorities applying it, we evaluate first the Confrontation Clause implications, if any, of the absence of trial testimony from the FBI lab employees who signed the internal log documenting custody of the jacket. Justice Scalia may well have had things like the log in mind when he spoke in Melendez-Diaz of evidence that “may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device.”
In this case, Summers caused the log to be admitted as part of Defendant’s Exhibit 3. Thus, to the extent that there could have been points to be scored with the jury by challenging the handling of the jacket at the FBI lab, it was incumbent upon the defense to subpoena the lab employees. Cf. Melendez-Diaz,
In deciding whether the jacket was admissible, the district court needed only to satisfy itself that it was “improbable that the original item had been exchanged with another or otherwise tampered with.” United States v. Jones,
At trial, Hampson, Schmick, and Morris each identified Government’s Exhibit 1 as the North Face jacket Summers wore the night he was arrested. The officers’ testimony was more than enough to put the issue before the jury, which heard in counterbalance Shea’s testimony on cross-examination that he had no idea where the jaсket had been prior to its receipt by the lab six or seven months following Summers’s arrest, or whether it had been tampered with. During the defense’s closing argument, counsel emphasized Shea’s admissions; absent any affirmative evidence of tampering, however, the jury simply declined to attribute much importance to the imperfections in the government’s documentation. Under the circumstances, the district court did not abuse its discretion in ruling that admission of the jacket into evidence satisfied the Rule 901(a) threshold.
C.
1.
? more substantial question is presented by the absence at trial of the analysts responsible for conducting the DNA tests on the jacket, the results of which provided the basis for Shea’s testimony and the preparation of his report. We perceive little difficulty with the admission of Shea’s testimony, given the predominance therein of his independent, subjective opinion and judgment relative to the lesser emphasis accorded the objective raw data generated by the analysts. See Fed. R.Evid. 703 (instructing that facts or data upon which an expert bases an opinion or inference, if of a type reasonably relied on by similar experts, “need not be admissible in evidence in order for the opinion or inference to be admitted”).
On the witness stand, Shea painstakingly explained the process whereby he, and he аlone, evaluated the data to reach the conclusion that, to a reasonable degree of
To a considerable extent, much the same can be said about Shea’s written report, which more or less mirrored his triаl testimony. The appearance of the analysts’ testing results within, however, gives us pause insofar as the table detailing those results constituted a more prominent part of the report than the underlying data did of the testimony. This is not to imply that the data was unimportant to Shea’s opinion, for of course it was crucial. The difference is that while Shea’s testimony focused upon the conclusions he drew from the data, the report invited the jurors’ attention to the data’s numerical identifiers. Admission of the report presented an unnecessary risk that the jury would improperly evaluate the DNA evidence based on its lay perceptions of what the data meant rather than on Shea’s expertise and any potential inaccuracies in his conclusions that might be developed on cross-examination. Cf. Fed.R.Evid. 703 (“Facts or data that are otherwise inadmissible shall not be disclosed to the jury ... unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.”).
Presented with an analogous situation, the Seventh Circuit affirmed the defendant’s conviction for trafficking in crack cocaine, notwithstanding that the head of the lab unit testified in place of the analyst who actually tested the seized substance. See United States v. Turner,
Indeed, our Washington precedent controls the result in Summers’s case. The numerical identifiers of the DNA allele here, insofar as they are nothing more than raw data produced by a machine, are indistinguishable in character from the gas chromatograph data in Washington and the chromatograph and spectrometer results in Moon and Turner. Undoubtedly, the more sound practice would have been to excludе Shea’s report from evidence, in the same fashion that the foundational reports were treated in Washington and Turner, but the jury’s access to the report during deliberations in no way detracts from the validity of its verdict. See Moon,
The Supreme Court’s decisions in Melendez-Diaz and in Bullcoming do not compel a different result. The notarized certificates of analysis at issue in Melendez-Diaz revealed considerably more than raw data; they concluded that the sub
Bullcoming is distinguishable because it was patently not, as Justice Sotomayor stressed, a case contesting the Sixth Amendment implications of machine-generated results. Summers has nonetheless directed our attention to a case recently published by the Court of Appeals of Maryland, Derr v. State,
In so ruling, the Derr court concluded that “the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature,” with the result that the prosecution was obliged to produce the analysts who actually performed the testing.
To the extent that Derr ascribes testimonial significance to machine-generated results — a conclusion that cannot be squared with our own circuit precedent— we find its reasoning unpersuasive. Melendez-Diaz and Bullcoming each involved one or more absent expert’s “certification” with respect to the meaning of the underlying raw data, and no such certification is at issue here. The only evidence interpreting the raw data was provided by Shea via his report and live testimony, and he was strenuously cross-examined by the defense.
We are cognizant of the concerns attendant to excusing analysts and technicians from trials under such circumstances, such concerns being best expressed, perhaps, by our late colleague Judge Michael in dissent in United States v. Washington:
Finally, it is not for the majority to say that “there would be no value in cross-examining the lab technicians.” A defendant’s right to confront witnesses against him does not depend on whether a court believes that cross-examination would be useful. The strategic decision of whether to cross-examine a laboratory technician is one for the defendant tomake.... Forensic test reports are not always accurate. Testing errors are sometimes caused by technician inexperience, sample contamination, failure to follow laboratory protocols, or breaks in the chain of custody.... The best way to expose errors or falsification in testing is through cross-examination of the laboratory technician.
2.
Even were we not persuaded that our Washington precedent controls the result in this case, effectively rebutting Summers’s contention that he was entitled to confront the lab analysts at trial, his conviction need not be disturbed if the purported error was harmless beyond a reasonable doubt. See Chapman v. California,
More fundamentally, howеver, we cannot help but note that the government’s decision to introduce DNA evidence derived from the jacket had the unintended collateral effect of rendering a straightforward case significantly more complex. With respect to proving ownership of the jacket, the evidence introduced through Shea was scarcely more than the thin glaze on a dense cake baked to doneness by the officers’ largely unshakable testimony that: (1) Summers was wearing the jacket before he ran; (2) he was not wearing the jacket when he was caught; and (3) the jacket was found in the immediate vicinity of his flight path. Although we suppose that the jury could have been impressed that Quantico weighed in on the issue, we hardly think that the government needed to rely on the FBI’s star power to prevail in its open-and-shut case. Even had the district court’s admission of Shea’s report constituted error, it would surely be harmless beyond a reasonable doubt.
IV.
Pursuant to the foregoing, we affirm the district court’s entry of judgment on the jury’s verdict.
AFFIRMED
Notes
. Citations herein to "J.A. _” refer to the contents of the Joint Appendix filed by the parties to this appeal.
. Justice Scalia cautioned, however, that "we do not hold, and it is not the case, that anyone whose testimony may be. relevant in establishing the chain of custody, authenticity of the sample, or аccuracy of the testing device, must appear in person as part of the prosecution's case.” Melendez-Diaz,
. Because we conclude that the numerical identifiers in Shea's report are not statements implicating the Confrontation Clause, we need not consider whether an expert’s report is sufficiently "formalized” to satisfy Justice Thomas's definition of a testimonial statement as expressed in his concurring opinion providing the deciding vote in Melendez-Diaz.
Concurrence Opinion
concurring in the judgment:
Although I concur in the judgment, I respectfully disagree with the majority’s
As we recognized in Norfolk Southern Railway Co. v. City Of Alexandria,
Here, the majority states that any error in regards to a Confrontation Clause violation is harmless beyond a reasonable doubt. I agree with this determination. Hence, because I am of the opinion that it is unnecessary to resolve a thorny issue such as this in what is an evolving area of constitutional law, I would decline to address the alleged Confrontation Clause violation.