Carter v. Miller

1

ELLIOT CARTER, Petitioner, v. CHRISTOPHER MILLER, Superintendent of Great Meadow Correctional Facility, Respondent.

No. 21-CV-2680 (ER) (RWL)

United States District Court, S.D. New York

May 2, 2022

REPORT AND RECOMMENDATION TO HON. EDGARDO RAMOS HABEAS CORPUS

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE

Elliot Carter, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of first-degree rape by jury in the Supreme Court of the State of New York, New York County. Carter argues that his petition should be granted because the DNA evidence presented against him was improperly entered into evidence through a Criminalist who did not herself perform witness, supervise, or independently analyze the testing of the DNA samples. Carter contends that the admittance of this evidence violated his confrontation rights granted by the Sixth Amendment to the U.S. Constitution. For the reasons that follow, I recommend that Carter's petition be DENIED.

BACKGROUND

A. The Crime

In the early morning of May 5, 2015, the employer of CW,^[1]a part-time masseuse, directed her to an appointment at 315 West 61st Street. (7/21/2016 Tr. 67.^[2]) According to CW's testimony, she was let into the building by the building's security guard. (7/21/2016 Tr. 68, 80.) CW and the security guard were the only people in the lobby. (7/21/2016 Tr. 68.) The security guard told CW where to find the elevators, but as CW made her way in the direction of the elevators, the security guard followed. (7/21/2016 Tr. 69 82.) The security guard then grabbed CW by the hair, and using “very strong force,” pushed her into an unlit storage room. (7/21/2016 Tr. 69.) There, CW testified the security guard removed her underpants and raped her. (7/22/2016 Tr. 85-88.)

When the security guard finally let CW leave, she found her cell phone, left the building, and crossed the street. (7/21/2016 Tr. 89.) Once she was a relatively safe distance away, CW called a friend to tell her what had happened. (7/21/2016 Tr. 90.) CW then called her employer and the police. (7/21/2016 Tr. 90-91.) When the police arrived, CW put her hand under her skirt and showed the officers what appeared to be semen. (7/21/2016 Tr. 95; 7/25/2016 Tr. 164.) The security guard, Elliott Carter, was arrested, and CW was taken to St. Luke's Hospital. (7/18/2016 Tr. 21-22; 7/21/2016 Tr. 96.)

While at the hospital, a sexual assault forensic examiner nurse examined and interviewed CW. (7/25/2016 Tr. 15-33, 48-49.) During the course of her examination, the nurse documented and photographed CW's injuries and collected samples from CW's underwear and vagina, which she placed in a sexual assault forensic examination evidence kit and gave to Officer Zhang Chen of the New York City Police Department (“NYPD”). (7/25/2016 Tr. 22-35, 165-66.) That kit was received by the New York City Office of the Chief Medical Examiner (“OCME”) as a vouchered piece of evidence from the NYPD. (7/25/2016 Tr. 115.) Several months after samples were collected from CW, an NYPD detective took and vouchered a buccal swab from Elliott Carter. (7/25/2016 Tr. 234, 237-39.) That sealed sample was also sent to the OCME. (7/25/2016 Tr. 120, 240.)

B. Trial

At trial, The People introduced several exhibits through CW's testimony, including a 911 call from CW, photos of CW's injuries, and a surveillance video of the incident. (7/21/2016 Tr. 107-14, 121, 123-26.) The surveillance video depicted a “struggle” between CW and Carter, during which Carter “grabbed [CW's] hair” as she attempted to “take charge to the door,” and pushed her into the closet.^[3] (7/21/2016 Tr. 116-17.)

The People also called several witnesses in addition to CW. Officer Chen testified that when he responded to the scene, CW was upset and showed him “a handful of semen or body fluid” from under her skirt. (7/25/2016 Tr. 164.) Testimony about that night, from both an NYPD detective with the Special Victims Division and the sexual assault forensic examiner nurse from St. Luke's Hospital, described injuries on CW consistent with sexual activity and that CW appeared upset. (7/21/2016 Tr. 39; 7/25/2016 Tr. 17, 22-30, 33-34, 74.)

Carter's defense counsel called no witnesses. During cross-examination of CW, defense counsel asked whether CW was paid on the night in question and whether her services were advertised on Backpage.com. (7/21/2016 Tr. 129, 138.) On summation, Carter's lawyer focused on CW's attire and behavior, suggested that sex with Carter was consensual, and heavily implied that CW was a prostitute rather than a masseuse. (7/25/2016 Tr. 261, 265, 270-71)

C. The Testimony Of Jaheida Perez

The People also called Jaheida Perez, a Criminalist III^[4] at OCME and an expert on DNA analysis. (7/25/2016 Tr. 76-77, 80.) Perez testified that the DNA profile generated by the sample taken from Carter matched the profile of “Male Donor A,” which was generated from multiple samples taken from CW's vagina and underwear. (7/25/2016 Tr. 120, 128.) First, however, Perez explained the processes of DNA analysis at OCME and her role in testing the relevant samples in this case.

Perez testified to the following: When DNA is tested, analysts test for 15 locations (“loci”) along the DNA strand and find alleles (identified with numbers) at each locus. Every individual has two alleles, or numbers, per locus - one received from the person's mother and the other from their father. The DNA profile of a person is the collected series of those numbers and is specific to each individual person. (7/25/2016 Tr. 83.)

Perez then testified to OCME's protocols. First, a sign-in specialist receives an item of evidence, reviews the case information, and designates the item to be examined. Then, a Criminalist IV^[5]assigns the case to a group for examination. Once the case and evidence are received by the group, a Criminalist examines the packaging and vouchers that the evidence is consistent with case information. Then, the evidence is examined for any biological material from which a DNA sample can be extracted. That sample is sent on for extraction, through which the DNA is removed from the cell. After extraction comes quantitation, where a Criminalist determines if there is enough DNA in the sample to be further examined. After the amount of DNA is determined to be enough, copies of the DNA are made by a process called amplification. Finally, samples of the DNA are placed into a machine called a “genetic analyzer,” which separates the DNA and presents it to a Criminalist through a software called “G-Mapper.” (7/25/2016 Tr. 85-86.)

The G-Mapper software translates the results of the genetic analysis into a visual that a Criminalist can analyze and “edit.” The DNA results appear as peaks in the visual, with each peak representing an allele. A Criminalist reviews the results of the genetic analysis and, if necessary, performs “edits” on the data. For instance, during the genetic analysis, a smaller peak (called a “stutter”) might appear in the visual before or after the “true” identifying peak, and the software may mistakenly label that peak as an allele number. The Criminalist, seeing the stutter, can “edit” the visual to remove the false label and restore the “true representation” of the DNA sample. (7/25/2016 Tr. 88-93).

After one Criminalist performs an analysis of the data in the G-Mapper, a second Criminalist (an “SDR reviewer”) performs an “independent analysis” of the same data, and either accepts or rejects the first Criminalist's edits. After the SDR Reviewer's assessment, all relevant data produced for the case is assigned to a reporting and interpreting Criminalist, who does a third “independent review” of all the data provided to them. That analyst reviews every individual paper in the file, including PDF printouts of the exact screen the first two Criminalists viewed on the G-Mapper and the edits the previous Criminalists may have made, and performs the third independent analysis of the original data and previous edits. After reviewing the data, the reporting and interpreting Criminalist interprets the sample for the first time, and if possible, assigns a DNA profile to a particular person. For all of the aforementioned procedures, OCME protocols demand that each step be reviewed and documented, and all reports, notations and records be kept. (7/25/2016 Tr. 93-96.)

In this case, Perez was the interpreting and reporting Criminalist for both the samples collected from CW and the buccal swab collected from Elliott Carter. (7/25/2016 Tr. 94-95, 124.) For the samples collected from CW, Perez testified that when she received the case file, she reviewed the G-Mapper results generated by the previous two analysts but “essentially [did] that work again,” making her own “independent conclusions” of which peaks should or should not be labeled. (7/25/2016 Tr. 95-96.) Then, Perez went through every DNA location, interpreted the results (for the first time), and finally assigned a DNA profile. (7/25/2016 Tr. 96, 120.) For the buccal swab collected from Carter, Perez again testified that she not only performed an independent analysis and interpretation of the data but also testified that she was the SDR reviewer. (7/25/2016 Tr. 124-26.) For the buccal swab, Perez again assigned a DNA profile. (7/25/2016 Tr. 127.) She compared that profile to the one generated from the samples taken from CW. The two matched. (7/25/2016 Tr. 128.) As Perez testified, the statistical probability of the profile appearing in two different people was one in 6.8 trillion. (7/25/2016 Tr. 133-34.)

At trial in the New York Supreme Court, Carter objected to the admission of OCME case files and the testimony of Jaheida Perez. Carter's counsel contended that...