State v. Norton

443 Md. 517

117 A.3d 1055

STATE of Maryland

v.Harold Albert NORTON, Jr.

No. 67, Sept. Term, 2014.

Court of Appeals of Maryland.

July 9, 2015.

Gary E. O'Connor, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Bradford C. Peabody, Asst. Pub. Def. (Paul B. DeWolfe, Pub. Def. of Maryland, Baltimore, MD), on brief, for Respondent.

Leonard R. Stamm, Esq., Goldstein & Stamm, P.A., Greenbelt, MD, Charles R. Koster, Esq., White & Case, LLP, Dana N. Delger, Esq., M. Chris Fabricant, Esq., David Loftis, Esq., New York, NY, Seth Miller, Esq., Tallahassee, FL, for Amicus Curiae brief of the Innocence Network in support of Respondent.

Argued before: BARBERA, C.J., HARRELL,^* BATTAGLIA, GREENE, ADKINS, McDONALD, and WATTS, JJ.

BATTAGLIA, J.

This case presents us with the question of whether a Forensic DNA Case Report, not executed under the penalty of perjury, but containing the language of “within a reasonable degree of scientific certainty”, was testimonial within the meaning of Williams v. Illinois, 567 U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

The testimonial issue was queued up when DNA was found on a mask that, according to witnesses, had been used in a robbery; the mask later was identified as potentially belonging to Harold Norton, Jr.¹ A small piece of the mask that contained saliva, from which a DNA sample was extracted, was sent to The Bode Technology Group, Inc., a commercial DNA testing company, “based” in Wharton, Virginia, along with a buccal swab² obtained from Norton for DNA comparison.

An analyst at Bode Technology created and executed a Forensic DNA Case Report, which was comprised of three pages on the lab's letterhead addressed to the Baltimore County Police Department, which contained the results of her comparison of a “ ‘buccal swab from suspect Harold Norton’ ” and a “ ‘cutting from ski mask[’]”. On the second page, above her signature, the analyst documented her ultimate conclusion, that “within a reasonable degree of scientific certainty, Harold Norton (2S06–062–01) is the major source of the biological material obtained from [the mask]”. The Report reflected the following:³

[First page]

Bode Technology 10430 Furnace Road Lorton, VA 22079Phone 703–644–1200_________________________Forensic DNA Case Report September 28, 2006

To:	BODE Case# : 2S06–062
Laura Pawlowski	Agency Case# : 06–188–1852/06–4567
Baltimore County Police Department
Forensic Services
700 East Joppa Road
Towson, MD 21286

List of Evidence Received on August 29, 2006 for DNA analysis:

BODE	# Agency ID	Description
2S06–062–01	3521–001.1	Labeled as “buccal swab from suspect Harold Norton”
2S06–062–02	4257–010.1	Labeled as “cutting from ski mask (+ amylase phadebas dark blue)”

CASE REVIEW AND RESULTS:

The items listed above were processed for DNA typing by analysis of the 13 CODIS Short Tandem Repeat (STR) loci and the gender determination locus, Amelogenin. Appropriate positive and negative controls were used concurrently throughout the analysis. The results of the analysis are summarized in Table 1.

1. A mixed DNA profile was obtained from evidence item 2S06–062–02.

2. A complete DNA profile was obtained from reference item 2S06–062–01.

The DNA profiles reported in this case were determined by procedures that have been validated according to standards established by the Scientific Working Group on DNA Analysis Methods (SWGDAM) and adopted as Federal Standards.

[Second page]

BODE Case # : 2S06–062	Date: September 28, 2006
Agency Case# : 06–188–1852/06–4567

CONCLUSIONS AND STATISTICS:

1. The DNA profile that was obtained from evidence item 2S06–062–02 is a mixture that includes a major component male DNA profile. The major component male DNA profile matches the DNA profile obtained from the reference item from Harold Norton (2S06–062–01).

The probability of randomly selecting an unrelated individual with this DNA profile is:

1 in 900 Quintillion (1 in 9.0 x 10 ²⁰ ) from the Caucasian population;

1 in 1.5 Quintillion (1 in 1.5 x 10 ¹⁸ ) from the African American population;

1 in 18 Quintillion (1 in 1.8 x 10 ¹⁹ ) from the SW Hispanic population;

1 in 27 Quintillion (1 in 2.7 x 10 ¹⁹ ) from the SE Hispanic population.

Therefore, within a reasonable degree of scientific certainty, Harold Norton (2506–062–01) is the major source of the biological material obtained from evidence item 2506–062–02.

The evidence and extracts will be returned to the Baltimore County Police Department.

Report submitted by:

________/s/________

Rachel E. Cline, MFS

DNA Analyst III

________/s/________

Susan Bach, MFS

Forensic Casework Manager

(emphasis added to conclusion).

Norton's first trial in which he was charged with armed robbery ended in a mistrial. During a second trial,⁴ the State attempted to introduce the Forensic DNA Case Report into evidence through the testimony of a Bode Technology supervisor, without calling the analyst who had authored and signed the Report. The supervisor testified, ultimately, that he had “reviewed all the materials, all of the notes, the lab notes, all of the data that was generated, the paperwork and the final report.”

Before the Report was admitted, however, Norton's counsel raised two issues, one of which related to discovery, which is not before us. The other objection forms the gravamen of the present dispute—that the Confrontation Clause would be violated were the Report to be admitted under the umbrella of the testimony of the supervisor, because the original analyst, then, could not be cross-examined. The State retorted that Norton had waived the objection, because his counsel had stipulated to the Report's admissibility during the first trial. At the second trial, the Report was admitted as State's Exhibit 10A.

Norton appealed to the Court of Special Appeals.⁵ In an unreported opinion, our intermediate appellate court held that admission of the Report without the analyst's testimony violated Norton's ability to confront his accuser under Derr v. State, 422 Md. 211, 29 A.3d 533 (2011) (“Derr I ”).⁶ Norton v. State, No. 2382, slip op. at 13–15 (Md.App. Nov. 21, 2011) (“Norton I ”). Subsequently, the Supreme Court granted certiorari in Derr I and ultimately vacated its mandate in light of Williams v. Illinois, 567 U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), and remanded the case to us for further proceedings. Maryland v. Derr, ––– U.S. ––––, 133 S.Ct. 63, 183 L.Ed.2d 700 (2012).

In Derr II, after having heard arguments, we concluded that the three exhibits in issue that identified Derr as the source of DNA found on the victim, about which testimony had been elicited from someone other than the analyst, had not violated Derr's right of confrontation. Derr v. State, 434 Md. 88, 118–20, 73 A.3d 254, 272–73 (2013) (“Derr II ”). There was no Confrontation Clause violation, we held, because the exhibits, one of which contained the analyst's bench notes while the others were DNA profiles consisting only of “a series of numbers and lines”, “[were] neither a sworn nor a certified declaration of fact” and, thus, were not “testimonial”. Id. at 119, 73 A.3d at 272 (internal quotation marks omitted).

In light of Derr II, we vacated Norton I⁷ and remanded it to the Court of Special Appeals for further proceedings. State v. Norton,

435 Md. 322, 77 A.3d 1116 (2013) (per curiam). In a reported opinion, our intermediate appellate court once again reversed Norton's conviction, holding that Norton's right of confrontation was violated when the Circuit Court admitted the Report without the analyst's testimony. Norton v. State, 217 Md.App. 388, 390, 94 A.3d 110, 111 (2014) (“Norton II ”). We granted the State's petition for certiorari to consider the following question:

Did the Court of Special Appeals err in determining that Norton's right to confrontation under the federal constitution was violated where a DNA expert testified regarding the work of another DNA analyst, and that expert was a supervisor in the same lab, reviewed the work of the other analyst, and came to his own conclusion that was consistent with the conclusion of the other analyst, but the analyst herself did not testify?

State v. Norton, 440 Md. 114, 99 A.3d 778 (2014).

We shall hold that the language “within a reasonable degree of scientific certainty” in the Forensic DNA Case Report rendered the Report testimonial within Williams, 567 U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89.

Our analysis regarding the admission of a forensic document absent the testimony of its author begins with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).⁸ In Crawford, Justice Antonin Scalia, writing for the Court, explored the history of the Sixth Amendment Right of Confrontation;⁹ he concluded that the Clause was an attempt to eviscerate the “use of ex parte examinations as evidence against the accused”. Id. at 50, 124 S.Ct. at 1363, 158 L.Ed.2d at 192. As such, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53–54, 124 S.Ct. at 1365, 158 L.Ed.2d at 194.

Justice Scalia's analysis in Crawford was steeped in the history of England, which, two centuries before the Revolution, according to Justice Scalia, began to incorporate “elements of the civil-law practice” of continental Europe into its “common-law tradition.”¹⁰

Id. at 43, 124 S.Ct. at 1359, 158 L.Ed.2d at 187–88. One such practice was to allow justices of the peace to examine suspects and witnesses before criminal trials, such that the results of the examination would, at times, be read in court, without hearing from the witness at trial. Id. at 43, 124 S.Ct. at 1359, 158 L.Ed.2d at 188. Justice Scalia observed that the practice of receiving ex parte statements of accusers at the trial of the accused in English courts “ ‘occasioned frequent demands by the prisoner to have his ‘accusers,’ i.e. the witnesses against him, brought...