State v. Norton

• Court: Court of Appeals of Maryland
• Decided: July 9, 2015
• Docket: 67/14
• Status: Published

Opinion

State of Maryland v. Harold Albert Norton, Jr., No. 67, Sept. Term 2014, Opinion by Battaglia, J.

CONSTITUTIONAL CRIMINAL PROCEDURE – CONFRONTATION CLAUSE – FORENSIC REPORTS

Inclusion of the language “within a reasonable degree of scientific certainty” in a Forensic DNA Case Report rendered the Report testimonial within the meaning of Williams v. Illinois, 567 U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), such that its admission into evidence required the testimony of the analyst who had performed the DNA testing and authored the Report. Circuit Court for Baltimore County, Maryland Case No. 03-K-07-4807, 06-3659 Argued: April 8, 2015

IN THE COURT OF APPEALS OF MARYLAND

No. 67 September Term, 2014

STATE OF MARYLAND v. HAROLD ALBERT NORTON, JR.

Barbera, C.J. *Harrell Battaglia Greene Adkins McDonald Watts, JJ.

Opinion by Battaglia, J. Harrell, J., joins in judgment only.

Filed: July 9, 2015

*Harrell, J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion but he retired from the Court prior to the filing of the opinion. 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

1 The mask was received in evidence as State’s Exhibit 9A. 2 “A buccal sample is obtained by swabbing the cheek area inside of a person’s mouth.” Derr v. State, 434 Md. 88, 99 n.6, 73 A.3d 254, 260 n.6 (2013) (“Derr II”) (internal quotation marks omitted). 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 22079 Phone 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.

3 Page three of the Report contains only “Table 1: Summary of Short Tandem Repeat Results” and has been omitted herein.

2 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 1020) from the Caucasian population; 1 in 1.5 Quintillion (1 in 1.5 X 1018) from the African American population; 1 in 18 Quintillion (1 in 1.8 X 1019) from the SW Hispanic population; 1 in 27 Quintillion (1 in 2.7 X 1019) from the SE Hispanic population.

Therefore, within a reasonable degree of scientific certainty, Harold Norton (2S06-062-01) is the major source of the biological material obtained from evidence item 2S06-062-02.

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

Report submitted by:

________/s/________ ________/s/________ Rachel E. Cline, MFS Susan Bach, MFS DNA Analyst III Forensic Casework Manager

(emphasis added to conclusion).

3 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.

4 In addition to armed robbery, Norton was also charged with attempted second degree murder, witness intimidation and lesser offenses, for which he had been indicted in 2007. 5 The questions before the intermediate appellate court were: I. Was [he] denied his constitutional, Sixth Amendment right of confrontation and cross-examination of Rachel Kline? II. Was it error to grant the State’s motion for joinder of charges?

4 211, 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).

6 In Derr I, we reversed Derr’s conviction, because we determined that the exhibits at issue were testimonial under Melendez-Diaz and Bullcoming. 422 Md. 211, 216, 29 A.3d 533, 536-37 (2011). The reports were testimonial, we said, because they contained solemn declarations of fact, reflected the functional equivalent of in-court testimony, and were prepared for later use at trial. We concluded, moreover, that admitting the documents only as the basis for the conclusion of the testifying expert who had not performed nor witnessed the analysis offended the Confrontation Clause, because the exhibits contained the conclusions of other analysts.

5 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

curium). 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

7 We granted certiorari in Norton I on October 21, 2013. 435 Md. 266, 77 A.3d 1084 (2013). The question presented at that time was: 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?

6 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

8 The Supreme Court, in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), “rewrote confrontation clause analysis”. 6A Lynn McLain, Maryland Evidence—State and Federal § 800:5 (3d ed. 2013). 9 The Sixth Amendment to the United States Constitution provides, in pertinent part: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; The Sixth Amendment was incorporated against the States through the Fourteenth Amendment in Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926 (1965) (“We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.”). 10 The terms “civil law” and “common law” refer to the legal system of continental Europe and that of England, respectively, that concurrently emerged during the Middle Ages. The Common Law and Civil Law Traditions, The Robbins Collection 1 (2010), https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf (continued . . . )

7 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, 129 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 before him face to face.’” Id., quoting

1 J. Stephen, History of the Criminal Law of England 326 (1883).

As Justice Scalia continued to review English history with respect to the

Confrontation Clause, he noted that ex parte pretrial examinations had become routine

during the sixteenth century reign of Queen Mary.11 Id. at 43, 124 S.Ct. at 1360, 158

L.Ed.2d at 188. Justices of the peace were appointed pursuant to then-enacted bail and

committal statutes to examine suspects and witnesses in felony cases and certify the

( . . . continued) (last visited July 7, 2015). Common law systems, most recognizable in American and British law, rely on an adversarial contest between two parties, which is moderated by a judge, with a jury of citizens who are not trained in the law deciding the facts. Id. The judge in a common law system then determines an appropriate sanction based on the jury’s verdict. Id. In contrast, a judge in a civil law system ordinarily “brings the formal charges, investigates the matter, and decides on the case [while] work[ing] within a framework established by a comprehensive, codified set of laws.” Id. 11 The coronation of Queen Mary occurred on October 1, 1553. John Edwards, Mary I, England’s Catholic Queen 123 (2011). She reigned until her death on November 17, 1558. Id. at 332.

8 results to the court; the certifications were used as evidence at trial.12 Id. at 44, 124 S.Ct.

at 1360, 158 L.Ed.2d at 188. One of the most notorious, and reviled, instances of the use

of the civil law judicial examination procedure in an English court, Justice Scalia

observed, occurred during the trial of Sir Walter Raleigh for treason in 1603. Id. at 44,

124 S.Ct. at 1360, 158 L.Ed.2d at 188.

According to Justice Scalia, an ex parte examination of Sir Walter Raleigh’s

alleged accomplice, Lord Cobham, was read to the jury during Sir Walter Raleigh’s trial,

at which Lord Cobham did not appear. Id. Sir Walter Raleigh had demanded that the

judges adhere to the common law tradition of allowing the accused to examine the

witnesses against him in court: “‘[t]he Proof of the Common Law is by witness and jury:

let Cobham be here, let him speak it. Call my accuser before my face . . . .’” Id., quoting

2 How. St. Tr., at 15-16. The judges refused, and Sir Walter Raleigh was convicted and

sentenced to death.13 Id.

Justice Scalia described the statutory and judicial reforms that developed

following Sir Walter Raleigh’s trial in order to limit the use of ex parte examinations. Id.

Treason statutes, for example, required witnesses to confront the accused at arraignments;

meanwhile, courts developed strict rules of unavailability and admitted ex parte

12 Cf. Crawford, 541 U.S. at 44, 124 S.Ct. at 1360, 158 L.Ed.2d at 188 (“It is doubtful that the original purpose of the examinations was to produce evidence admissible at trial.”). 13 “One of Raleigh’s trial judges later lamented that ‘the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.’” Crawford, 541 U.S. at 44, 124 S.Ct. at 1360, 158 L.Ed.2d at 188.

9 examinations only if the witness was demonstrably unable to testify in person. Id. at 44-

45, 124 S.Ct. at 1360, 158 L.Ed.2d at 188. Toward the end of the seventeenth century, in

response to a recurring question of whether an accused should be afforded the

opportunity to cross-examine witnesses against him, the Court of the King’s Bench

answered in the affirmative, ruling that, “even though a witness was dead, his

examination was not admissible where ‘the defendant not being present when [it was]

taken before the mayor . . . had lost the benefit of a cross-examination.’” Id. at 45, 124

S.Ct. at 1360-61, 158 L.Ed.2d at 189, quoting King v. Paine, 5 Mod. 163, 165, 87 Eng.

Rep. 584, 585 (1696).

Justice Scalia then reviewed the practices embraced by the English in pre-

revolutionary America, which continued the civil law tradition of ex parte examinations;

the Governor of Virginia, for example, “‘privately issued several commissions to

examine witnesses against particular men ex parte’”, which was met by protests from the

Virginia Council advocating for the common law approach of permitting the accused “‘to

be confronted with, or defend himself against his defamers.’” Id. at 47, 124 S.Ct. at

1362, 158 L.Ed.2d at 190, quoting A Memorial Concerning the Maladministrations of

His Excellency Francis Nicholson, reprinted in 9 English Historical Documents 253, 257

(D. Douglas ed. 1955). The purview of admiralty courts, which followed civil law, was

extended to offenses arising under the Stamp Act so that testimony by private judicial

examination from witnesses against accused colonists was admitted into evidence without

cross-examination. Id. at 47-48, 124 S.Ct. at 1362, 158 L.Ed.2d at 190.

10 Justice Scalia opined that in reaction to the use of such ex parte examinations the

declarations of rights adopted by many of the colonies around the time of the Revolution

guaranteed a right of confrontation. Id. at 48, 124 S.Ct. at 1362, 158 L.Ed.2d at 191,

citing, inter alia, Maryland Declaration of Rights § XIX (1776).14 The absence of a

comparable right in the proposed Federal Constitution, Justice Scalia continued, garnered

objections during the Massachusetts ratifying convention15 from those who criticized the

use of ex parte examinations as evidence during trial. Id. In response, the Bill of Rights

included in its Sixth Clause the language, “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him”. Id. at 49, 124

S.Ct. at 1363, 158 L.Ed.2d at 191; U.S. Const. amend. VI.

From this historical perspective, Justice Scalia extrapolated that the Confrontation

Clause embodied two essential premises: “First, the principal evil at which the

Confrontation Clause was directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence against the accused”; and,

14 Section Nineteen of the Maryland Declaration of Rights of 1776 provided, in relevant part: That, in all criminal prosecutions, every man hath a right . . . to be confronted with the witnesses against him; The same language is now memorialized in Article Twenty-One of the Maryland Declaration of Rights. 15 From January 9 to February 7, 1788, over three hundred delegates from Massachusetts convened to consider whether the commonwealth should ratify the United States Constitution. Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions As A Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457, 468, 472 (2009). During the debates, Anti-Federalists strongly objected to ratification, because the proposed constitution lacked a bill of rights. Id. at 472.

11 second, “that 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 50, 53-54, 124 S.Ct.

at 1363, 1365, 158 L.Ed.2d at 192, 194.

Deducing that the Framers intended, by the adoption of the mandate of the

Confrontation Clause, to eliminate the use of civil law ex parte examinations at the trial

of the accused, Justice Scalia concluded that the Clause adheres when “testimonial

hearsay” is being introduced at trial. Id. at 53, 124 S.Ct. at 1365, 158 L.Ed.2d at 194.

Justice Scalia posited that the text of the Confrontation Clause reflected such a focus,

because “witnesses”, as used therein, served to restrict the use of statements from those

who “bear testimony”. Id. at 51, 124 S.Ct. at 1364, 158 L. Ed. 2d at 192. To “bear

testimony”, Justice Scalia continued, involves making “‘[a] solemn declaration or

affirmation . . . for the purpose of establishing or proving some fact’”, (id., quoting 2 N.

Webster, An American Dictionary of the English Language (1828)); therefore, the

“primary object” of the Confrontation Clause is to limit the unfettered use of a statement

made for the purpose of establishing a fact against the accused at trial, which Justice

Scalia termed “testimonial hearsay”. Id. at 53, 124 S.Ct. at 1365, 158 L.Ed.2d at 194.

In Crawford, Justice Scalia’s application of the testimonial tenets gleaned from the

historical analysis yielded a conclusion that a wife’s statements implicating her husband

made during a police interrogation were testimonial and inadmissible without the wife’s

presence as a witness at trial. Id. at 65-68, 124 S.Ct. at 1372-74, 158 L.Ed.2d at 201-03.

The Crawford case had evolved from a Washington trial court judge permitting the

12 introduction of the wife’s statements, without her presence, because the “questioner [was]

neutral to her”. Id. at 66, 124 S.Ct. at 1373, L.Ed.2d at 202 (internal quotation marks and

alterations omitted). Although the Washington Court of Appeals reversed the trial court,

the Washington Supreme Court vacated the opinion of its intermediate appellate court

and reinstated Crawford’s conviction. Id. at 41, 124 S.Ct. at 1358, 158 L.Ed.2d at 186.

The United States Supreme Court reversed, because, as Justice Scalia recounted,

“[t]he Framers would be astounded to learn that ex parte testimony could be admitted

against a criminal defendant because it was elicited by ‘neutral’ government officers.”

Id. at 66, 124 S.Ct. at 1373, 158 L.Ed.2d at 202. Justice Scalia opined that the situation at

issue bore the “closest kinship” to the admission of the results of ex parte examinations at

trial, because the justices of the peace who conducted examinations under the bail and

committal statutes enacted during the reign of Queen Mary “had an essentially

investigative and prosecutorial function” and, therefore, bore a strong resemblance to the

police officers of the present day. Id. at 53, 124 S.Ct. at 1365, 158 L.Ed.2d at 193-94.

The wife’s statements, in Justice Scalia’s calculus, were, therefore, testimonial in any

sense of the term. Id. at 53, 124 S.Ct. at 1365, 158 L.Ed.2d at 194.

The Crawford holding, then, that testimonial hearsay is inadmissible at trial

without the accused having had the opportunity to cross-examine is foundational. Justice

Scalia, however, did not define “testimonial” nor identify its parameters. What we do

know is “that 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

13 defendant had had a prior opportunity for cross-examination.” Id. at 53-54, 124 S.Ct. at

1365, 158 L.Ed.2d at 194.

A number of inquiries can be derived from Crawford, however, to determine

whether hearsay would be considered “testimonial”. To whom the statement is made is a

key component, because the involvement of a government official, or one acting on the

government’s behalf, is strongly associated with what Justice Scalia emphasized as the

“core concern” of the Confrontation Clause, (id. at 53, 124 S.Ct. at 1365, 158 L.Ed.2d at

193-94); the involvement of government officers, Justice Scalia explained, “presents

unique potential for prosecutorial abuse . . . with which the Framers were keenly

familiar.” Id. at 56 n.7, 124 S.Ct. at 1367 n.7, 158 L.Ed.2d at 196 n.7.

Another inquiry would involve whether the statement had been solicited and, if so,

whether the solicitation occurred under circumstances that “would lead an objective

witness reasonably to believe that the statement would be available for use at a later

trial”. Id. at 52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193 (describing various valid

formulations of “testimonial”) (internal quotation marks omitted). Such an inquiry is

consistent with Crawford’s focus on the trial of Sir Walter Raleigh, which made clear

that ex parte statements solicited as part of a criminal investigation or prosecution are the

archetypal statements that demand confrontation. Id. at 44, 124 S.Ct. at 1360, 158

L.Ed.2d at 188.

Yet another question involves whether, when viewed objectively, the challenged

statement was made “for the purpose of establishing or proving some fact” in a criminal

prosecution or investigation. Id. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 188. Justice

14 Scalia drew a sharp distinction between hearsay made as part of a routine business

practice, as part of a casual conversation or to further a criminal conspiracy with hearsay

made in order to establish an individual’s role in the commission of a criminal act.16 Id.

at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193. When a statement, then, is made for a

non-prosecutorial purpose, it is less likely to be testimonial than one created as part of an

ongoing criminal investigation. Id.

Another query from Crawford is whether the statement under scrutiny was made

in a formal context. During Justice Scalia’s textual analysis of the Confrontation Clause,

he noted that a testimonial statement is one that is “formal”, and a “core class” of such

declarations is one contained within an affidavit, deposition, prior testimony or

confession. Id. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193. As such, an inquiry with

respect to formality may turn on the form of the statement as well as other circumstances

involving the creation of the statement, such as if it was offered in the confines of a

police interview room. See id. at 52-53, 124 S.Ct. at 1364-65, 158 L.Ed.2d at 193-94.

A final inquiry involves whether there is historical authority for the admission of

the challenged statement, despite its testimonial nature. Justice Scalia reflected upon at

least two situations in which such historical precedent exists: when the statement is a

dying declaration as that term is understood by the rules of evidence pertaining to

16 Justice Scalia specifically described business records and statements in furtherance of a conspiracy as hearsay, but not testimonial and, therefore, outside the purview of the Confrontation Clause, because such statements are not created for the purpose of a criminal prosecution or investigation. Crawford, 541 U.S. at 56, 124 S.Ct. at 1367, 158 L.Ed.2d at 196-97.

15 hearsay, (id. at 56 n.6, 124 S.Ct. at 1367 n.6, 158 L.Ed.2d at 195 n.6), and when the

witness is unavailable due to the wrongdoing of the defendant, (id. at 62, 124 S.Ct. at

1370, 158 L.Ed.2d at 199).

Following Crawford, refining what is “testimonial” has been the gravamen of a

number of Supreme Court cases, most notably for our analysis, Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming v.

New Mexico, 564 U.S. __, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); and Williams v.

Illinois, 567 U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

In Melendez-Diaz, Melendez-Diaz was charged with distributing cocaine. 557

U.S. at 308, 129 S.Ct. at 2530, 174 L.Ed.2d at 320. During trial, three “certificates of

analysis” were received in evidence,17 which contained the results of forensic testing

17 The three reports received in evidence were identical in form, which appeared as follows, followed by an attestation by a notary public, which we have omitted: The Commonwealth of Massachusetts Executive Office of Health and Human Services Department of Public Health State Laboratory Institute 305 South Street Boston, MA 02130-3597 617-983-6622

DATE RECEIVED: 11/19/2001 DATE ANALYZED: 11/28/2001 No. 615742 I hereby certify that the substance Contained in 2 plastic bags MARKED: 615742 Submitted by P.O. FRANK MCDONOUGH of the BOSTON POLICE DEPT.

Has been examined with the following results: (continued . . . )

16 performed by a state laboratory in response to a police request as required by

Massachusetts law. Id. at 308, 129 S.Ct. at 2531, 174 L.Ed.2d at 320. The technicians

who had performed the testing swore to the results of their testing before a notary public.

Id.

Melendez-Diaz was convicted and the Massachusetts intermediate appellate court

affirmed. Id. at 309, 129 S.Ct. at 2527, 174 L.Ed.2d at 320. The State Supreme Judicial

Court denied review, but the United States Supreme Court granted certiorari and

reversed, holding that the laboratory certificates fell “within the ‘core class of testimonial

statements’” and, therefore, were inadmissible. Id. at 310, 129 S.Ct. at 2532, 174

L.Ed.2d at 321, quoting Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at

193. Justice Scalia, again writing for the majority, emphasized the formality of the

exhibits as indicative of their testimonial nature. Id. at 311, 129 S.Ct. at 2532, 174

L.Ed.2d at 321. He noted that, although denominated as “certificates”, the exhibits were

“quite plainly affidavits” in that they were declarations of fact sworn to by the declarant

before an officer authorized to administer oaths and, therefore, the documents fell within

( . . . continued) The substance was found to contain: Cocaine, a derivative of Coca leaves, as defined in Chapter 94 C, Controlled Substance Act, Section 31, Class B.

NET WEIGHT: 2.41 grams DEFENDANT: MONTERO, ELIS A. ET AL __________________/s/_____________________/s/______________ Assistant Analysts Della Saunders Michael Lawler The two other reports varied with respect only to the amount “Contained” and the specimen’s “NET WEIGHT”.

17 the “core class” of testimonial statements. Id. at 310, 129 S.Ct. at 2532, 174 L.Ed.2d at

321.

The second point of emphasis, Justice Scalia observed, was that the reports were

created specifically to resolve a fact in question, “that the substance found in the

possession of Melendez-Diaz . . . was, as the prosecution claimed, cocaine”. Id. The sole

purpose of the certificates, Justice Scalia opined, was to provide evidence to be used at

trial against Melendez-Diaz and, therefore, it was clear that he should have been afforded

an opportunity to cross-examine the analysts who created the certificates. Id. at 311, 129

S.Ct. at 2532, 174 L.Ed.2d at 321. In essence, the certificates were functionally identical

to live testimony and were created to do “‘precisely what a witness does on direct

examination.’” Id., quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266,

2278, 165 L.Ed.2d 224, 242 (2006).

Justice Scalia then rejected a number of arguments raised by the State, (id. at 313-

28, 129 S.Ct. at 2533-42, 174 L.Ed.2d at 323-32), and, in so doing, refined “testimonial

hearsay” as it pertains to forensic documents. He opined that a voluntary statement could

be testimonial, thereby rejecting the State’s argument to the contrary. Id. at 316-17, 129

S.Ct. at 2535, 174 L.Ed.2d at 325. Justice Scalia continued that, even were an inquiry

from the police to be required for a statement to be testimonial, the fact that investigators

had requested the analysis of the substance found in Melendez-Diaz’s possession was a

sufficient:

As we have explained, “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open- ended questions than they were to exempt answers to detailed

18 interrogation.” Davis, supra, at 822-823, n. 1. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a “‘witness against’ the defendant,” Brief for Respondent 26, than one who is responding to interrogation. In any event, the analysts’ affidavits in this case were presented in response to a police request. See Mass. Gen. Laws, ch. 111, §§ 12-13. If an affidavit submitted in response to a police officer’s request to “write down what happened” suffices to trigger the Sixth Amendment’s protection (as it apparently does, see Davis, 547 U.S., at 819-820; id., at 840, n. 5 (THOMAS, J., concurring in judgment in part and dissenting in part)), then the analysts’ testimony should be subject to confrontation as well.

Id. at 316-17, 129 S.Ct. at 2535, 174 L.Ed.2d at 325.

The later case of Bullcoming v. New Mexico, 564 U.S. __, 131 S.Ct. 2705, 180

L.Ed.2d 610 (2011), represents the next refinement of the word testimonial in the context

of a forensic document. More specifically, the question addressed in Bullcoming was

“whether the Confrontation Clause permits the prosecution to introduce a forensic

laboratory report containing a testimonial certification—made for the purpose of proving

a particular fact—through the in-court testimony of a scientist who did not sign the

certification or perform or observe the test reported in the certification.” Id. at__, 131

S.Ct. at 2710, 180 L.Ed.2d at 616. The issue had arisen during Bullcoming’s trial for

aggravated driving while intoxicated, when the State failed to call the analyst from the

Scientific Laboratory Division of the New Mexico Department of Health who had

quantified Bullcoming’s blood alcohol concentration level. Id. The sample had been

forwarded to the Laboratory along with information that Bullcoming was stopped and

arrested because of an accident. Id. The analyst recorded the results onto “a standard

[Scientific Laboratory Division] form titled ‘Report of Blood Alcohol Analysis’” and

19 certified18 that Bullcoming’s blood alcohol concentration was above the threshold for

supporting a charge of aggravated driving while intoxicated.19 Id. at __, 131 S.Ct. at

2710, 2711, 180 L.Ed.2d at 616, 617. The Report was offered as a business record at

Bullcoming’s trial during the testimony of another scientist from the Laboratory, who had

neither observed nor reviewed the analyst’s work. Id. at __, 131 S.Ct. at 2712, 180

L.Ed.2d at 618. The Court of Appeals of New Mexico, as well as the Supreme Court of

New Mexico, affirmed Bullcoming’s conviction. Id. at __, 131 S.Ct. at 2712-13, 180

L.Ed.2d at 618-19.

The Supreme Court reversed Bullcoming’s conviction and held that introduction

of the Report through the testimony of a technician in the Laboratory who had neither

performed nor witnessed the testing did not meet the requirements of the Confrontation

Clause. Id. at __, __, 131 S.Ct. at 2710, 2713, 180 L.Ed.2d at 616, 619. Justice Ruth

Bader Ginsburg, writing for the Court, emphasized that the exhibit resembled those in

Melendez-Diaz, because it was created to “assist in police investigations” and it was

18 The “Certificate of Analyst” stated, in relevant part: I certify that I followed the procedures set out on the reverse of this report, and the statements in this block [relating to the integrity of the sample and the analyst’s ultimate conclusion] are correct. The concentration of alcohol in the sample is based on the grams of alcohol in one hundred milliliters of blood. 19 In New Mexico, the threshold for aggravated driving while intoxicated is 0.16 grams per hundred milliliters; the analyst certified that Bullcoming’s blood alcohol level was 0.21 grams per hundred milliliters. Bullcoming v. New Mexico, 564 U.S. __, __, 131 S.Ct. 2705, 2711, 180 L.Ed.2d 610, 617-18 (2011).

20 “‘formalized’ in a signed document . . . headed a ‘report’”, which brought it within the

bounds of the Confrontation Clause:

In all material respects, the laboratory report in this case resembles those in Melendez-Diaz. Here, as in Melendez-Diaz, a law-enforcement officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the analysts in Melendez-Diaz, [the] analyst [in Bullcoming] tested the evidence and prepared a certificate concerning the result of his analysis. Like the Melendez-Diaz certificates, [the Bullcoming] certificate is “formalized” in a signed document, Davis, 547 U.S., at 837, n. 2, 126 S.Ct. 2266 (opinion of THOMAS, J.), headed a “report[.]” . . . In sum, the formalities attending the “report of blood alcohol analysis” are more than adequate to qualify [the analyst’s] assertions as testimonial. The absence of notarization does not remove his certification from Confrontation Clause governance. The New Mexico Supreme Court, guided by Melendez-Diaz, correctly recognized that [the analyst’s] report “fell within the core class of testimonial statements”, described in this Court’s leading Confrontation Clause decisions: Melendez-Diaz, 557 U.S., at __, 129 S.Ct., at 2531-2532; Davis, 547 U.S., at 830, 126 S.Ct. 2266; Crawford, 541 U.S., at 51-52, 124 S.Ct. 1354.

Id. at __, 131 S.Ct. at 2717, 180 L.Ed.2d at 624 (some internal citations omitted). Justice

Ginsburg emphasized that, although the Report in Bullcoming was unsworn, as

differentiated from those in Melendez-Diaz, it would be untenable for the definition of

“testimonial statements” to turn on whether the individual making the statement had done

so under oath. Id. at __, 131 S.Ct. at 2717, 180 L.Ed.2d at 623.

Most recently, in Williams v. Illinois, 567 U.S. __, __, 132 S.Ct. 2221, 2229, 183

L.Ed.2d 89, 100 (2012), the Court was faced with a DNA profile produced by a private

laboratory, Cellmark, located in Germantown, Maryland. The DNA profile had been

solicited by the Illinois State Police from a vaginal swab collected from a rape kit. Id.

Analysts at Cellmark determined that the DNA profile belonged

21 to a male;20 there was no suspect identified at the time. Id. The profile was then

compared to the DNA database in Illinois by an Illinois State Police forensic specialist

and Williams’s DNA developed as a result of a prior, unrelated, arrest was a match. Id.

The Cellmark DNA profile was later received in evidence during Williams’s

bench trial during the testimony of the police specialist and not the Cellmark analyst. Id.

at __, 132 S.Ct. at 2227, 183 L.Ed.2d at 98. The State posited that the Cellmark profile

was not admitted for its truth, rather, that it only served to explain the underlying facts the

20 The “RESULTS AND CONCLUSIONS” produced by the Cellmark analyst appeared as follows: RESULTS AND CONCLUSIONS: DNA testing using the Polymerase Chain Reaction (PCR) and the AmpFISTR Profiler PlusTM and AmpFISTR COfilerTM Amplification Kits was performed on the [vaginal swab and a standard obtained from the victim, L.J.]. The loci tested and the results obtained for each tested sample are listed in Table 1. Additional information regarding possible male contributor(s) is listed in Table 2.

The DNA obtained from the epithelial cell fraction of the vaginal swab is from a female and matches the profile obtained for L.J.

The DNA obtained from the sperm fraction of the vaginal swab is a mixture from a male and a female. Types present in the mixture are consistent with the types obtained from L.J. Assuming that the mixture contains DNA from only two sources and L.J. is one of the sources, the possible types of the male donor are listed in Table 2.

DISPOSITION: In the absence of specific instruction, evidence will be returned to the submitting agency by Federal Express or another appropriate carrier.

Reviewer: _____/s/_____ Reviewer: _____/s/_____ Robin W. Cotton, Ph.D. Jennifer E. Reynolds, Ph.D. Laboratory Director Laboratory Director Forensic Laboratory Forensic Laboratory

22 specialist had relied upon in reaching her expert opinion. Id. at __, 132 S.Ct. at 2227-28,

183 L.Ed.2d at 98.

The plurality opinion authored by Justice Samuel Alito and joined by Chief Justice

John Roberts and Justices Anthony Kennedy and Stephen Breyer,21 set forth two

rationales for concluding that Williams’s right of confrontation was not violated by

admission of the Cellmark profile. Justice Alito posited that the profile was not offered

for its truth and, therefore, was outside the scope of the Confrontation Clause. Id. at __,

132 S.Ct. at 2228, 183 L.Ed.2d at 99. Alternatively, Justice Alito stated that the Cellmark

profile was not testimonial, because it was not produced for “the primary purpose of

accusing a targeted individual”, unlike that which had occurred in Melendez-Diaz and

Bullcoming. Id. at __, __, 132 S.Ct. at 2228, 2243, 183 L.Ed.2d at 99, 115.

Justice Clarence Thomas concurred only in the judgment and provided his own

opinion. Id. at __, 132 S.Ct. at 2255, 183 L.Ed.2d at 129. In his view, introducing the

Cellmark profile through the testimony of the police specialist did not encumber

Williams’s cross-examination rights, “because Cellmark’s statements lacked the requisite

‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the

Confrontation Clause.” Id. Justice Thomas opined that “Cellmark’s report, in substance,

21 A plurality opinion occurs when five or more Justices agree on the result of a case, but no single opinion garners five votes. James F. Spriggs II & David R. Stras, Explaining Plurality Decisions, 99 Geo. L.J. 515, 515 (2011). The opinion authored by Justice Alito is, however, criticized by a majority of the Court. See Williams v. Illinois, 567 U.S. __, __, 132 S.Ct. 2221, 2265, 183 L.Ed.2d 89, 139 (Kagan, J., dissenting); id. at __, 132 S.Ct. at 2255, 183 L.Ed.2d at 129 (Thomas, J., concurring in judgment but disavowing the reasoning).

23 certifies nothing.” Id. at __, 132 S.Ct. at 2260, 183 L.Ed.2d at 134. When considering

the question of the purpose of the Cellmark profile, Justice Thomas iterated that, when a

statement is created under circumstances that indicate it is to be used in a criminal

prosecution or investigation, the statement may be testimonial. Id. at __, 132 S.Ct. at

2261, 183 L.Ed.2d at 135. The purpose for creating the statement is not enough,

however, under Justice Thomas’s rationale, because the statement must also have the

requisite “formality and solemnity” to be considered testimonial.22 Id.

In Derr II, we were called upon to apply the tenets of Williams and did so by

“appl[ying] the standard articulated by the Supreme Court in Marks v. United States, 430

U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260, 266 (1977)”, that being, “When a

fragmented Court decides a case and no single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court may be viewed as that position taken by

22 Justice Elena Kagan authored a dissent, which was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Sonia Sotomayor. Id. at __, 132 S.Ct. at 2264, 183 L.Ed.2d at 138. Justice Kagan lamented the splintered viewpoints among the Justices: The Court today disagrees [that Williams’s confrontation rights were violated], though it cannot settle on a reason why. Justice ALITO, joined by three other Justices, advances two theories—that the expert’s summary of the Cellmark report was not offered for its truth, and that the report is not the kind of statement triggering the Confrontation Clause’s protection . . . . [I]n all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. Justice THOMAS, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers. Id. at __, 132 S.Ct. at 2265, 183 L.Ed.2d at 139 (citations omitted). On the merits of the case, Justice Kagan determined that the report was created to serve as evidence in a criminal trial, putting it squarely within the realm of testimonial statements. Id. at __, 132 S.Ct. at 2275, 183 L.Ed.2d at 151.

24 those Members who concurred in the judgments on the narrowest grounds.” Id. at 114,

73 A.3d at 269 (internal quotation marks omitted). The narrowest grounds, we opined,

were provided by Justice Thomas’s concurrence:

The plurality opinion expressed that statements are testimonial when they both have “the primary purpose of accusing a targeted individual of engaging in criminal conduct” and are “formalized statements such as affidavits, depositions, prior testimony, or confessions.” 567 U.S. at __, 132 S.Ct. at 2242, 183 L.Ed.2d at 116 (plurality). Justice Thomas’s concurrence expressed that for statements to be testimonial both “the declarant must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution,” 567 U.S. at __, 132 S.Ct. at 2261, 183 L.Ed.2d at 135 (Thomas, J., concurring in judgment) (citation omitted), and the statements must “bear[ ] [an] indicia of solemnity.” 567 U.S. at __, 132 S.Ct. at 2259, 183 L.Ed.2d at 133 (Thomas, J., concurring in judgment) (quotation omitted). Those statements, Justice Thomas explained, include “formalized testimonial materials, such as depositions, affidavits, and prior testimony, or statements resulting from formalized dialogue, such as custodial interrogation.” 567 U.S. at __, 132 S.Ct. at 2260, 183 L.Ed.2d at 133 (Thomas, J., concurring in judgment) (citations and quotation omitted). The common point of agreement between the plurality opinion and Justice Thomas’s concurring opinion is that statements must, at least, be formalized, or have “indicia of solemnity” to be testimonial. Therefore, using the Marks approach, we conclude that the narrowest holding of Williams is that a statement, at a minimum, must be formalized to be testimonial.

Id. at 114-15, 73 A.3d at 270. By embracing Justice Thomas’s opinion we emphasized

the formality of a statement or its “indicia of solemnity”. Id. at 115, 73 A.3d at 270.

In Derr II we had been asked to determine whether three exhibits received in

evidence were testimonial. The first exhibit “appear[ed] to be the notes from the bench

work of the serological examiner”, which were compiled during the 1985 investigation of

the underlying rape, and were the result of an examination of physical evidence collected

at the scene. Id. at 118, 73 A.3d at 272. We opined that the notes, because they lacked

25 any “signed statements or any other indication that the results or the procedures used to

reach those results were affirmed by any analyst”, were not sufficiently formalized to be

considered testimonial, (id. at 119, 73 A.3d at 272); therefore, the admission of the

exhibit without the testimony of the analyst who had created it did not violate Derr’s right

of confrontation.

With respect to the second exhibit, which was a DNA profile created in 2002 from

biological material obtained via a vaginal swab of the victim, we observed that it

“display[ed] a series of numbers and lines, and on the bottom of the documents [were] the

initials of two parties. No statements, however, appear[ed] anywhere on the results

attesting to their accuracy or that the analysts who prepared them followed any prescribed

procedures.” Id. at 119, 73 A.3d at 272-73. The initials, we said, certified nothing and,

thus, we concluded that the second exhibit was not sufficiently formalized to meet the

standard in Williams.

The third exhibit was created when “a match was discovered between Derr’s

existing profile in CODIS[23] and the profile generated in 2002”, which led investigators

to create a reference DNA sample from Derr’s buccal swab. Id. at 99, 73 A.3d at 260.

The third exhibit was “almost identical in form to the test results from the 2002 DNA test

of biological material” obtained from the victim, except that there were no initials on the

bottom of the third exhibit. Id. at 120, 73 A.3d at 273. The report itself, attached hereto

23 CODIS is short for Combined DNA Index System, which “connects DNA laboratories” at all jurisdictional levels to assist law enforcement agencies in identifying DNA found at crime scenes. Maryland v. King, 569 U.S. __, __, 133 S.Ct. 1958, 1968, 186 L.Ed.2d 1, 18-19 (2013).

26 as Appendix B, reflected no conclusions authored by the analyst and graphically

represented only the makeup of the DNA under analysis. The third set of results, we

determined, was not sufficiently formalized, and the analyst who had derived the DNA

test results was not required to testify. In conclusion, we rejected each of Derr’s

challenges based on the Confrontation Clause, having determined that the exhibits were

not formalized and, thus, were not testimonial.24

Since Derr II was decided, many other courts also have struggled to interpret

Williams and apply its tenets. E.g., State v. Michaels, 95 A.3d 648, 666 (N.J.), cert.

denied, __ U.S. __, 135 S.Ct. 761, 190 L.Ed.2d 635 (2014) (“We find Williams’s force,

as precedent, at best unclear.”). The essence of the confusion, according to our sister

courts, is that none of the opinions in Williams articulated what could be described as the

“narrowest” ground for the opinion, nor did the plurality and concurring opinions provide

overlapping rationales. See, e.g., State v. Dotson, 450 S.W.3d 1, 69 (Tenn. 2014), cert.

24 In Cooper v. State, 434 Md. 209, 73 A.3d 1108 (2013), cert. denied, __ U.S. __, 134 S.Ct. 2723, 189 L.Ed.2d 762 (2014), we continued to apply the tenets derived from Justice Thomas’s opinion. A semen specimen from a napkin had been sent by the Baltimore City Police Department to The Bode Technology Group from which a DNA profile was developed. A Baltimore City Police Department Crime Lab technician later compared the DNA profile for the specimen found on the napkin with a profile created from a buccal swab of Cooper and found them to be a match. The DNA profile only identified an “unspecified male” as the contributor of DNA found in the sample and did not include any “indication that the results [were] sworn to or certified”. Id. at 217, 236, 73 A.3d at 1111-13, 1124. We determined that the DNA profile lacked formality and, ergo, was not testimonial. Id. at 236, 73 A.3d at 1124.

27 denied, __ U.S. __, 135 S.Ct. 1535, 191 L.Ed.2d 565 (2015) (“The Marks rule[25] ceases

to function as it was intended where Williams is concerned because the two opinions that

resulted in the judgment share no common denominator rationale.”); Young v. United

States, 63 A.3d 1033, 1043 (D.C. 2013) (“We do not get very far applying Marks [to

Williams], for the two opinions of the Justices who concurred in the judgment in Williams

lack the necessary common denominator.”); Michaels, 95 A.3d at 666 (“In short, each of

those three opinions in Williams embraces a different approach to determining whether

the use of forensic evidence violates the Confrontation Clause, and there is no narrow

rule that would have the support of a majority of the Supreme Court that we can discern

from the opinions in Williams.”); State v. Griep, 863 N.W.2d 567, 579 (Wis. 2015) (“As

no opinion overlaps with another, the Marks narrowest grounds rule does not apply to

Williams v. Illinois.”).

The District of Columbia Court of Appeals, in Young v. United States, opined that

“the two opinions of the Justices who concurred in the judgment in Williams lack the

necessary common denominator” to allow the court to synthesize the narrowest grounds

for affirming Williams’s conviction. 63 A.3d at 1043. The Young court explained that a

statement could be accusatory and, therefore, be testimonial under Justice Alito’s test, but

without being formal enough to satisfy Justice Thomas’s test. Id. A statement,

25 The “Marks Rule” instructs lower courts that, when the Supreme Court issues a plurality opinion, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260, 266 (1977) (internal quotation marks omitted).

28 conversely, could be formal under Justice Thomas’s test, according to the District of

Columbia Court of Appeals, but without accusing or targeting a particular suspect and,

therefore, not be testimonial under Justice Alito’s opinion. Id. The Young court distilled,

nevertheless, a “logically coherent” position that requires, at a minimum, that the

statement have an “evidentiary purpose” and “either the plurality’s targeted accusation

requirement or Justice Thomas’s formality criterion”:

There is an intermediate position. By analogy to Marks, it can be argued that while Justice Alito’s rationale and Justice Thomas’s rationale may not be includible within each other, the different tests they utilize to determine whether a statement is testimonial are subsumed within and narrower than the dissenters’ test. That is so because Justice Alito and Justice Thomas each added an additional requirement to the basic “evidentiary purpose” test espoused by Justice Kagan. If the four-Justice plurality would deem a statement testimonial under the targeted accusation test, the four dissenting Justices surely would deem it testimonial under the broader evidentiary purpose test. Similarly, if Justice Thomas would deem a statement testimonial employing his formality criterion along with the evidentiary purpose test, the four dissenting Justices necessarily would deem it testimonial using the evidentiary purpose test alone. It therefore is logically coherent and faithful to the Justices’ expressed views to understand Williams as establishing—at a minimum—a sufficient, if not a necessary, criterion: a statement is testimonial at least when it passes the basic evidentiary purpose test plus either the plurality’s targeted accusation requirement or Justice Thomas’s formality criterion. Otherwise put, if Williams does have precedential value as the government contends, an out- of-court statement is testimonial under that precedent if its primary purpose is evidentiary and it is either a targeted accusation or sufficiently formal in character.

63 A.3d at 1043-44.

Other of our sister state supreme courts have declined to apply Williams and have

retreated, instead, to Melendez-Diaz and Bullcoming. The Supreme Court of

Pennsylvania, in Commonwealth v. Yohe, 79 A.3d 520, 537 (2013), cert. denied, __ U.S.

29 __, 134 S.Ct. 2662, 189 L.Ed.2d 209 (2014), observed that the plurality and concurring

opinions in Williams “regarded the Cellmark report as non-testimonial, and not analogous

to the reports admitted in Melendez-Diaz and Bullcoming.” The Pennsylvania court,

similarly, distinguished the report at issue in Yohe from that in Williams and, therefore,

determined that Williams was “of little assistance in deciding the matter”. Id.

The Supreme Court of New Jersey, in State v. Michaels, 95 A.3d at 666, asserted

that, “there is no narrow rule that would have the support of a majority of the Supreme

Court that we can discern from the opinions in Williams” and that, “Williams advances a

wholly new approach to when a forensic document will be deemed testimonial,” which

“diverges from the primary purpose test that had been applied previously.” The Michaels

court continued that, because Williams did not explicate that it was abandoning the

primary purpose test from Crawford, it, too, would not alter the approach promulgated by

Crawford to the extent that it was refined by Melendez-Diaz and Bullcoming. Id. at 666-

68.

The United States Court of Appeals for the Fifth Circuit in United States v. Duron-

Caldera, 737 F.3d 988, 994 (2013), refused to follow the Williams’s plurality opinion

and, similarly, criticized the case for abandoning Crawford and its progeny. The Fifth

Circuit opined that, “five Justices expressly rejected [the plurality’s] test” and that,

therefore, it “would not be controlling under Marks”. Id. Continuing, the court

concluded that the plurality’s test, which required that a statement “accuse” a specific

individual to be testimonial, was unsupported by Confrontation Clause precedent,

because the concern of the clause is the creation of “statements one ‘would reasonably

30 expect to be used prosecutorially . . . [or] at a later trial.’” Id. at 995, quoting Crawford,

541 U.S. at 51-52, 124 S.Ct. at 1354, 158 L.Ed.2d at 193 (emphasis and alterations added

by Duron-Caldera court). The Fifth Circuit, finally, criticized the Williams’s plurality

for relying “on an overly-narrow view of the rationale behind confrontation”, because it

assumed “that the Confrontation Clause is designed to protect only against a defendant-

related motive to behave dishonestly.” Id. at 995-96 (internal quotation marks omitted).

The Duron-Caldera court, instead, continued to apply Confrontation Clause

jurisprudence as defined through Bullcoming and Melendez-Diaz.26 Id. at 993.

It is noteworthy that no other state supreme court nor federal circuit court of

appeals has solely relied upon Justice Thomas’s concurrence. In light of what has

transpired since Williams and Derr II, which we have fleetingly summarized, we take this

opportunity to better refine our own analysis. When this Court is addressing a federal

constitutional question we recognize that we “are responsible for executing” the “policy

directives” issued by the Supreme Court. Lawrence Baum, Implementation of Judicial

Decisions: An Organizational Analysis, 4 Am. Pol. Q. 86, 89 (1976). We cannot alter the

message conveyed by the Supreme Court, unlike our own common law, but we, like our

26 Other courts, such as those cited by the State, have avoided Williams by relying on their own jurisprudence. E.g., Commonwealth v. Greineder, 984 N.E.2d 804, 815 n.15 (Mass. 2013) (noting that the Massachusetts rules of evidence are fundamentally different from those of Illinois, which were involved in Williams and, therefore, Williams did not alter Massachusetts’s jurisprudence); Jenkins v. State, 102 So.3d 1063, 1067 n.2 (Miss. 2012) (noting that Williams had no bearing on the case and relying on the Court’s own precedent).

31 sister state supreme courts, strive to “carry out” Supreme Court precedent “accurately and

faithfully.” Id.

By examining the way in which sister courts have applied Williams we have the

opportunity to explore how best to accurately and faithfully implement the Supreme

Court’s pronouncement on the issue of the Confrontation Clause in the context of

forensic documents, when “other [courts] have persuasively argued” a different

application. Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d

871, 876 (D.C. Cir. 1992). We, therefore, examine Williams’s tenets, as applied by our

sister courts, to ensure that Derr II, “which seems superficially relevant to resolving [the]

dispute, is not applied to the facts of a case that would not be well resolved under the

prior decision.” Robert S. Summers, Precedent in the United States (New York State), in

Interpreting Precedents 391 (D. Neil MacCormick & Robert S. Summers eds., 1997).

Doing so does not overrule our decision in Derr II, but serves to expand our application

of Williams in an attempt to adhere as accurately and faithfully as we can to the Supreme

Court precedent. In so doing, we are respectful of the adoption of Justice Thomas’s

concurrence in Derr II, but recognize that we need to refine the analysis required in the

determination of what is testimonial in the forensic document framework.

As the District of Columbia in Young v. United States recognized, an approach to

Williams can be constructed by formulating a test that, if satisfied, would result in

adherence to the opinions of a majority of the Justices. The Young court opined that, if a

forensic document is testimonial under either Justice Thomas’s or Justice Alito’s

rationale, then it, necessarily, is testimonial under the rule advocated by Justice Kagan’s

32 dissent, because each of the plurality’s opinions narrows the broader rule urged by the

dissent. 63 A.3d at 1043-44. This is so, according to the District of Columbia Court of

Appeals, because Justice Thomas provides a strict rule requiring that, to be testimonial, a

forensic document must have been created with the purpose of serving as evidence in a

criminal trial and that it must be sufficiently “formal”. Id. at 1043, quoting Williams, 567

U.S. at __, 132 S.Ct. at 2255, 183 L.Ed.2d at 129. Justice Alito posits a test that is,

instead, more limited with respect to the document’s purpose: that a forensic document is

testimonial if it has “the primary purpose of accusing a targeted individual.” 27 Id. at

1040, quoting Williams, 567 U.S. at __, 132 S.Ct. at 2243, 183 L.Ed.2d at 115. The

Young court’s test is satisfied, then, when either Justice Thomas’s or Justice Alito’s

opinion is fulfilled. Id. at 1044.

By embracing both Justice Thomas’s and Alito’s opinions, we guide our trial

courts, when reviewing the admissibility of forensic documents under the Confrontation

Clause, to consider first, whether the report in issue is formal, as analyzed by Justice

Thomas, (Williams, 567 U.S. at __, 132 S.Ct. at 2255, 183 L.Ed.2d at 129); or, if not,

whether it is accusatory, in that it targets an individual as having engaged in criminal

conduct, under Justice Alito’s rationale, (id at __, 132 S.Ct. at 2243, 183 L.Ed.2d at 115).

This expanded approach to Williams requires that we, like our brethren on the trial courts,

27 Justice Kagan’s dissent in Williams, 567 U.S. at __, 132 S.Ct. at 2264-77, 183 L.Ed.2d at 138-52, is broader than Justices Thomas’s and Alito’s opinions, according to the Young court, because it urges a test that drops Justice Thomas’s “formality” requirement and with a more general purpose than that proposed by Justice Alito, that a forensic document is testimonial if it was created with the primary purpose of serving as evidence in a criminal trial. Young v. United States, 63 A.3d 1033, 1043 (D.C. 2013).

33 first determine if the forensic report at issue reflects the “‘solemnity of an affidavit or

deposition’”, (Derr II, 434 Md. at 113, 73 A.3d at 268, quoting Williams, 567 U.S. at __,

132 S.Ct. at 2260, 183 L.Ed.2d at 133 (Thomas, J., concurring)), which would satisfy

Justice Thomas’s inquiry. Such formality does not require that the document contain

specific words of attestation, but that the report, in substance, functions as a certification.

Cf. Williams, 567 U.S. at __, 132 S.Ct. at 2260, 183 L.Ed.2d 134 (asserting that

“Cellmark’s report, in substance, certifies nothing”) (Thomas, J., concurring) (emphasis

added).

Should there be a determination that the document in issue was not formal, the

next inquest would be whether the report has “the primary purpose of accusing a targeted

individual of engaging in criminal conduct”. Id. at __, 132 S.Ct. at 2242, 183 L.Ed.2d at

114. (Alito, J.). If the report was generated before the defendant was a named suspect in

the investigation, then the report could not be accusatory. Id. at __, 132 S.Ct. at 2228,

183 L.Ed.2d at 99. Similarly, when a report is created as a “reference” to “verify” the

accuracy of a previous document, (e.g., Derr II, 434 Md. at 99, 73 A.3d at 260), it is not

accusatory. The forensic document, to be testimonial pursuant to the Williams plurality,

must contain a conclusion that connects the defendant to the underlying crime.

Under the paradigm so articulated, the Forensic DNA Case Report at issue in the

instant case is testimonial. With respect to Justice Thomas’s formality inquiry, the

Report contains a certification in the phrase “within a reasonable degree of scientific

certainty”. The inclusion of such language, “within a reasonable degree of scientific

certainty”, in a DNA report identifying a match between a defendant’s profile with that of

34 a perpetrator is key to the acceptance of the expert’s testimony into evidence in

Maryland. Young v. State, 388 Md. 99, 120, 879 A.2d 44, 56 (2005). Without this

language certifying the result, the testimony is without foundation. Id. The phrase, then,

of “within a reasonable degree of scientific certainty”, constitutes such “talismanic

words” that, without them, the testimony cannot cross the threshold of acceptance by the

judge as gatekeeper.28 See Mayor & City Council of Baltimore v. Theiss, 354 Md. 234,

261, 729 A.2d 965, 980 (1999) (Rodowsky, J., concurring).

The Report in issue, thus, is testimonial pursuant to Justice Thomas’s concurring

opinion in Williams, because it was certified and was signed by the analyst who had

performed the test, indicating that the analyst’s results had been validated according to

federal standards, even if unsworn.29 It may not be within the “core class” of sworn

documents, such as affidavits, to which Justice Scalia referred in Crawford, 541 U.S. at

51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193, but it does come within “formalized

28 In Derr II, we had occasion to consider whether a specific jury instruction was generated by the use of the phrase “to a reasonable degree of scientific certainty”. 434 Md. 88, 132, 73 A.3d 254, 280 (2013). Although we did not have occasion to opine about its meaning, its use in Derr II, another DNA case in which expert testimony was received, is illustrative of its usage to certify profile matches between a defendant and the crime. 29 A contrary conclusion requiring such magic words as “certification” would elevate form over substance, which this Court is loath to do, especially when constitutional rights are in issue. E.g., In re Spalding, 273 Md. 690, 703, 332 A.2d 246, 253 (1975) (“it is clear that labels are not controlling in determining the applicability of the Due Process Clause to juvenile proceedings”); see also Williams, 567 U.S. at __, 132 S.Ct. at 2260, 183 L.Ed.2d at 134 (“Cellmark’s report, in substance, certifies nothing”) (Thomas, J., concurring) (emphasis added).

35 testimonial materials” to which Justice Thomas made reference and gave non-exclusive

examples, (Williams, 567 U.S. at __, 132 S.Ct. at 2260, 183 L.Ed.2d at 133).

The Report before us is testimonial under Justice Alito’s plurality opinion as well,

because it was created with “the primary purpose of accusing a targeted individual of

engaging in criminal conduct”. Williams, 567 U.S. at __, 132 S.Ct. at 2242, 183 L.Ed.2d

at 114. The language “within a reasonable degree of scientific certainty, Harold Norton .

. . is the major source of the biological material obtained from [the] evidence” clearly

“accus[es] a targeted individual of engaging in criminal conduct”. See id.

The result we reached in Derr II, whereby the three exhibits were not testimonial,

does not change, however, under our enunciated inquiry. Although Derr II was decided

by the application of Justice Thomas’s rationale, even under Justice Alito’s plurality, the

three forensic reports would not have been considered testimonial, because they were not

created to accuse “a targeted individual of engaging in criminal conduct”. Williams, 567

U.S. at __, 132 S.Ct. at 2242, 183 L.Ed.2d at 114. In Derr II we noted that the first report

reflected “the notes from the bench work of the serological examiner”, contained no

statement regarding the accuracy of the procedures the analyst had used to reach the

results and was created before a suspect had been identified in the investigation. Derr II,

434 Md. at 118-19, 73 A.3d at 272. Nothing about the first report accused an individual

of engaging in criminal conduct and, therefore, it would not have been considered

testimonial by the Williams plurality. See Williams, 567 U.S. at __, 132 S.Ct. at 2228,

183 L.Ed.2d at 99 (“The report was sought not for the purpose of obtaining evidence to

36 be used against [Williams], who was not even under suspicion at the time, but for the

purpose of finding a rapist who was on the loose.”).

The second report at issue in Derr II, similarly, was developed when the Charles

County “Sheriff’s Office submitted the rape kit to the FBI laboratory for additional

forensic analysis.” 434 Md. at 98, 73 A.3d at 260. As such, it was composed before Derr

was a suspect in the investigation and it was created “for the purpose of finding a rapist

who was on the loose.” Williams, 567 U.S. at __, 132 S.Ct. at 2228, 183 L.Ed.2d at 99.

The third of the Derr II reports was developed after it was discovered that Derr’s

existing profile in CODIS matched the previous report developed during the

investigation. The final document, generated in order to “create a new ‘reference DNA

sample’ and to verify that Derr’s profile in CODIS was accurate”, appeared only as a

graphic representation of test results, which did not contain even the name of the

individual from whom the DNA was sampled, much less any accusatory statements.

Derr II, 434 Md. at 99, 73 A.3d at 260; Appendix B. The third report, which the majority

in Derr II determined was non-testimonial, would also have been so rendered under

Justice Alito’s plurality opinion, because nothing in the report “accus[es] a targeted

individual of engaging in criminal conduct”. Williams, 567 U.S. at __, 132 S.Ct. at 2242,

183 L.Ed.2d at 114.

Even assuming arguendo that we were not able to discern a viable framework

from Williams to apply in the present case, we would note, alternatively, that the instant

report is testimonial under Supreme Court precedent prior to Williams as akin to the

report presented in Bullcoming, which five Justices, including Justice Thomas,

37 determined to be testimonial.30 See State v. Stanfield, 347 P.3d 175, 184 (Idaho 2015)

(“Because no position [in Williams] received support from a majority of the justices,

Williams does not provide us a governing legal principle and this Court views the

decision as limited to the unique set of facts presented in that case.”).

In Bullcoming, Bullcoming’s blood sample was sent to the Scientific Laboratory

Division of the New Mexico State Police to be analyzed for Bullcoming’s blood alcohol

concentration. 564 U.S. at __, 131 S.Ct. at 2710, 180 L.Ed.2d at 616. The Report

indicated that the sample was submitted by the arresting officer to be checked for blood

alcohol concentration, implicitly for a suspected driving under the influence charge. Id.

The Report then contained a section titled “Certificate of Analyst”, which embodied the

result of the analyst’s test—that Bullcoming’s blood alcohol concentration was above the

legal limit—and an assertion that the proper procedures were followed.31

The present Report reflects a DNA profile, produced by an analyst at Bode

Technology, from a piece of fabric taken from the mask identified as the one worn by the

30 Reliance upon Bullcoming is appropriate, because the Forensic DNA Case Report is distinguishable from the Cellmark Report in Williams, attached hereto as Appendix C. See Commonwealth v. Yohe, 79 A.3d 520, 537 (Pa. 2013), cert. denied, __ U.S. __, 134 S.Ct. 2662, 189 L.Ed.2d 209 (2014) (“As explained below, we view the Toxicology Report at issue in this case as similar to the scientific reports in Melendez–Diaz [] and Bullcoming, and, guided by these opinions, hold that it is likewise testimonial. We therefore find Williams distinguishable, and of little assistance in deciding the matter before us.”). The instant Report, unlike the Cellmark Report, contains a certification, identifies a specific individual as the culprit and reflects the statistical likelihood that the identified person is the guilty party in the underlying case. 31 The first page of the Report at issue in Bullcoming is attached at the end of this opinion as Appendix A.

38 assailant. That Report materially is identical to the one in Bullcoming. The Report was

made to establish “some fact in a criminal proceeding”—here, the identity of the

assailant, (id. at __, 131 S.Ct. at 2716, 180 L.Ed.2d at 623 (internal quotation marks

omitted)), and details the results of forensic testing on evidence gathered by the police.

Viewed side-by-side with the Bullcoming Report, the Bode Technology analysis also

describes the relevant samples, test methodology, and results; includes the signatures of

laboratory officials; and contains a certification that proper procedures were followed in

reaching the ultimate conclusion identifying the suspect, named to the analyst as “suspect

Harold Norton”, as the perpetrator of a criminal offense. Under the Supreme Court’s

prior analysis, therefore, the substance of the Report could come into evidence only if

Norton had a chance to cross-examine the responsible analyst.32

32 We have concluded that admission of the Report without the analyst’s testimony violated Norton’s Sixth Amendment right of confrontation, so that the question of whether the supervisor was the proper conduit for testimony about the Report is answered negatively. See Bullcoming, 564 U.S. at __, 131 S.Ct. at 2716, 180 L.Ed.2d at 623 (“[W]hen the State elected to introduce [the analyst’s] certification, [the analyst] became a witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other way. See Melendez-Diaz, 557 U.S., at __, 129 S.Ct., at 2545 (KENNEDY, J., dissenting) (Court’s holding means ‘the . . . analyst who must testify is the person who signed the certificate’).”). The cases cited by the State to the contrary are inapposite, because those courts either first determined that the forensic document at issue was not testimonial, (see People v. Barba, 155 Cal.Rptr.3d 707, 730 (Cal. Ct. App.), cert. denied, __ U.S. __, 134 S.Ct. 628, 187 L.Ed.2d 407 (2013) (“The primary purpose of the DNA reports was not testimonial”.)), or the testifying expert was a witness with respect to his or her own analysis, review and certification, (see Marshall v. People, 309 P.3d 943, 947 (Colo. 2013) (“[The testifying expert] synthesized the tests performed by two different analysts . . . [t]hen she reviewed the data generated by the scientific instruments to ensure that the controls show[ed] the instruments were working properly. . . . Finally, she reviewed the analysts’ notes to conclude that they followed lab protocol throughout the testing process. (continued . . . )

39 In the event that a trial court has occasion to review a forensic document that is

analogous to the report discussed in Bullcoming, application of Bullcoming is appropriate

to determine the impact of the accused’s right of confrontation on the item’s

admissibility. A report may be considered so analogous when it includes the signatures

of laboratory officials, identifies the accused as the culprit in the underlying investigation,

conveys conclusory statements and certifies that proper procedures were followed in

reaching the ultimate conclusion.

The reports at issue in Derr II, for example, were not analogous to that in

Bullcoming, because the Derr II reports did not include, substantially, a certification nor

did they contain any language referring to a specific individual as being connected with

the underlying offense. Compare Appendix A (report from Bullcoming), with Appendix

B (third report from Derr II, which, we said, was identical to the second report in that

case).

In conclusion, the Forensic DNA Case Report in the instant case is testimonial

within Williams v. Illinois, 567 U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

( . . . continued) Only after she performed all of these steps did she certify the test results and sign the form that was sent back to [investigators]. In other words . . . she testified as to her own involvement in the process”.) (internal footnote omitted); State v. Lopez, 45 A.3d 1, 13 (R.I. 2012) (The testifying expert therein “was integrally involved in the entire process of DNA testing, analysis, and certification, and he formulated the allele table and provided expert testimony at trial concerning the conclusions he drew therefrom.”)). State v. Manion, 295 P.3d 270, 277 (Wash. Ct. App. 2013), also cited by the State in support of its averment that the supervisor’s testimony was admissible despite the testimonial nature of the Forensic DNA Case Report, is factually distinguishable from the instant case, as well as Bullcoming and Williams, because, in Manion, “[the analyst’s] draft report was testimonial but never admitted into evidence.”

40 JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

Judge Harrell joins the judgment only.

41 APPENDIX A APPENDIX B

2 3 APPENDIX C

4 5 6 7 8 9 10 11 12 13 14 15 16