United States v. Katso

74 M.J. 273, 2015 CAAF LEXIS 588, 2015 WL 4076669
CourtCourt of Appeals for the Armed Forces
DecidedJune 30, 2015
Docket14-5008/AF
StatusPublished
Cited by26 cases

This text of 74 M.J. 273 (United States v. Katso) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Katso, 74 M.J. 273, 2015 CAAF LEXIS 588, 2015 WL 4076669 (Ark. 2015).

Opinions

Judge RYAN delivered the opinion of the Court.

Appellee was convicted, contrary to his pleas, by a general court-martial composed of officer and enlisted members of one specification of aggravated sexual assault, one specification of burglary, and one specification of unlawful entry, in violation of Articles 120, 129, and 134, UCMJ, 10 U.S.C. §§ 920, 929, 934, United States v. Katso, 73 M.J. 630, 632 (A.F.Ct.Crim.App.2014). Appellee was sentenced to confinement for ten years, a dishonorable discharge, and forfeiture of all pay and'allowances. Id, The convening authority approved the sentence. Id. The United States Air Force Court of Criminal Appeals (CCA) set aside and dismissed the findings and sentence, holding that the testimony of a Government expert witness was based on a testimonial report written by an out-of-court declarant, thereby violating Ap-pellee’s right to confrontation under the Sixth Amendment of the United States Constitution. Id. at 638-40, 642.

The Judge Advocate General of the Air Force certified the following issue to this Court:

WHETHER THE AIR FORCE COURT OF' CRIMINAL APPEALS ERRED WHEN IT FOUND APPELLEE’S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE PERMITTED, [275]*275OVER DEFENSE OBJECTION, THE TESTIMONY OF THE GOVERNMENT’S DNA EXPERT, AND THAT THE ERROR WAS NOT HARMLESS.

This ease requires us to examine the application of the Sixth Amendment to testimony relating the results of forensic analysis that was the product of collaboration among a number of laboratory employees. When an expert’s knowledge and opinions are based in part on tests performed by others, what may the expert tell the factfinder without violating the defendant’s right to confrontation? To answer this question, we apply the frameworks developed by the Supreme Court and by this Court to a set of facts that neither court has considered.

We hold that the testimony of the Government’s forensic expert witness, David Davenport, did not violate Appellee’s right to confrontation. Unlike the experts in Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 2715, 180 L.Ed.2d 610 (2011), and United States v. Blazier (Blazier II), 69 M.J. 218, 226 (C.A.A.F.2010), Mr. Davenport’s personal knowledge regarding the derivation of the evidence at issue made him neither a “surrogate” expert, Bullcoming, 131 S.Ct. at 2715, nor a mere “conduit” for the testimonial statements of another. Blazier II, 69 M.J. at 225; see also Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 2241, 183 L.Ed.2d 89 (2012). Mr. Davenport conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the eviden-tiary samples, and -the quality control measures. He personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions. Much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, Mr. Davenport did not act as a mere conduit for the report. See Memorandum from Robert Fisher, Forensic DNA Examiner, to Commander; Air Force Office of Special Investigations, Detachment 320 (Jan. 28, 2011) [hereinafter Final Report]. The military judge’s denial of Appellee’s motion to exclude the expert’s testimony was not an abuse of discretion, and the decision of the CCA is reversed.

I. FACTS

A Collecting and Analyzing the DNA Evidence

On the morning of December 11, 2010, Senior Airman (SrA) CA reported that she had been raped, and identified Appellee as the perpetrator. Agents from the Air Force Office of Special Investigations (AFOSI) promptly brought SrA CA to the hospital for an examination. A Sexual Assault Nurse Examiner (SANE) testified that she collected, among other items, vaginal, oral, and rectal swabs from SrA CA a blood sample, and debris from SrA CA’s clothing. The nurse examiner handed these samples to an AFOSI agent. Another SANE testified that she collected Appellee’s blood and saliva, obtained penile and scrotal swabs, and handed the samples to an AFOSI agent.'

AFOSI Special Agent (SA) Richard Blair testified at trial that he received the samples from the two agents who had been at the hospital. The samples were combined into two separate “sexual assault kits,” containing samples from Appellee and SrA CA respectively. SA Blair explained that the agents who received the samples prepared a set of documents to accompany each kit, which SA Blair reviewed. SA Blair sent this evidence and documents to the United States Army Criminal Investigation Laboratory (USA-CIL), enclosing a request form that described each piece of evidence and listed identifying numbers for the evidence.1

[276]*276B. Mr. Davenport’s Testimony on the Motion to Suppress

Robert Fisher, the USACIL employee responsible for the initial analysis of the sexual assault kits, was in Florida during the court-martial to be by his mother’s side while she underwent major surgery. The Government notified the defense that it would elicit testimony about the forensic analysis from Mr. Davenport, who conducted the technical review of Mr. Fisher’s analysis. At the time of the trial, Mr. Davenport had worked as a forensic DNA examiner at USACIL for more than six years. Appellee made a motion in limine to exclude Mr. Davenport’s testimony, arguing that such testimony would violate his right to confrontation. In an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), session, Mr. Davenport testified both about the steps that USACIL technicians follow to process evidence in cases of alleged sexual assault and his own role in reviewing and testing the evidence in this case.

i. USACIL’s Procedure for Processing Evidence

Testifying during the healing on the motion to suppress, Mr. Davenport described the path of sexual assault kits through USA-CIL. First, employees in the evidence processing section receive the evidence. They then scan and save an electronic copy of the forms accompanying the evidence into a “case file” on the laboratory’s computer system. The “case examiner” checks the evidence out of the evidence processing section, breaks the seal on the evidence, and checks the forms that accompanied the package against the evidence to ensure that the lab received all items reflected therein. The examiner then inventories the evidence, verifies that the evidence was properly sealed, and notes any irregularities with the evidence. The examiner is required to document any accidents or mistakes that occurred during the tests.

The case examiner performs a serological examination, which entails looking for traces of semen on the evidence collected from the victim. Various steps of this exam require the examiner to record his visual observations.2

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Mooty
Air Force Court of Criminal Appeals, 2025
United States v. Hagen
Air Force Court of Criminal Appeals, 2025
United States v. Davis
Court of Appeals for the Armed Forces, 2025
United States v. Goodwater
Air Force Court of Criminal Appeals, 2024
United States v. Anderson
Air Force Court of Criminal Appeals, 2022
State v. Carr
502 P.3d 546 (Supreme Court of Kansas, 2022)
United States v. Schmidt
Navy-Marine Corps Court of Criminal Appeals, 2020
United States v. Baas
Court of Appeals for the Armed Forces, 2020
United States v. Rodriguez
Air Force Court of Criminal Appeals, 2019
United States v. Mancini
Air Force Court of Criminal Appeals, 2018
State v. Brian Watson
Supreme Court of New Hampshire, 2018
United States v. Katso
Court of Appeals for the Armed Forces, 2018
United States v. Hutchins
Navy-Marine Corps Court of Criminal Appeals, 2018
United States v. Katso
76 M.J. 704 (Air Force Court of Criminal Appeals, 2017)
United States v. Hudson
Air Force Court of Criminal Appeals, 2017
United States v. Canada
Air Force Court of Criminal Appeals, 2016
United States v. Dockery
Air Force Court of Criminal Appeals, 2015
United States v. Specialist DANIEL C. BAILEY
75 M.J. 527 (Army Court of Criminal Appeals, 2015)
United States v. Weisleder
Air Force Court of Criminal Appeals, 2015
United States v. Stevenson
Air Force Court of Criminal Appeals, 2015

Cite This Page — Counsel Stack

Bluebook (online)
74 M.J. 273, 2015 CAAF LEXIS 588, 2015 WL 4076669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-katso-armfor-2015.