State v. Walker ( 2019 )

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STATE OF CONNECTICUT v. EUGENE L. WALKER
(SC 20101)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Mullins and Ecker, Js.
Syllabus
Convicted of the crimes of felony murder, manslaughter in the first degree
with a firearm, attempt to commit robbery in the first degree, and
criminal possession of a pistol or revolver in connection with the shoot-
ing death of the victim, the defendant appealed to the Appellate Court,
claiming that his federal constitutional right to confront the witnesses
against him had been violated by the admission of certain evidence
connecting him to the shooting. At trial, a supervisory forensic analyst
employed by the state, D, testified that the defendant was a major
contributor to the DNA on a bandana that had been found at the crime
scene and that allegedly had been worn by the person who shot the
victim. In conjunction with D’s testimony, the state also introduced into
evidence a written report signed by D containing specific numerical
DNA profiles from the bandana and a postarrest buccal swab of the
defendant’s mouth that had previously been conducted pursuant to a
court order. D testified that, although she analyzed the DNA on the
bandana and conducted the ultimate comparison, the numerical DNA
profile from the defendant’s buccal swab had been generated by another
forensic analyst or analysts. Although D had neither participated in nor
observed the analysis of the defendant’s buccal swab, D testified that
she had received paperwork showing that standard laboratory proce-
dures had been followed and explicitly swore to the accuracy of the
resulting numerical DNA profile. On appeal to the Appellate Court, the
defendant claimed that the evidence regarding the numerical DNA profile
that had been presented through D contained testimonial hearsay and
that he had been deprived of his right to confrontation because the state
had failed to call a witness with personal knowledge of the testing of
the buccal swab. The Appellate Court rejected that claim, concluding
that, because D had conducted the ultimate analysis and made the
resulting findings that connected the defendant’s DNA to the bandana,
and because D testified and was subjected to cross-examination at trial,
the defendant’s right to confrontation had not been violated. Although
the Appellate Court vacated the defendant’s manslaughter conviction
on a separate ground, it affirmed the trial court’s judgment in all other
respects. On the granting of certification, the defendant appealed to
this court, claiming that the introduction of evidence concerning his
numerical DNA profile through D’s testimony violated his right to con-
frontation. Held that the Appellate Court incorrectly concluded that the
admission of D’s testimony concerning the numerical DNA profile from
the defendant’s buccal swab did not violate the defendant’s right to
confrontation, and, because the state did not advance a claim of harmless
error, the defendant was entitled to a new trial: D’s testimony, which
did not consist merely of her own independent opinion, introduced to
the jury the other analyst’s or analysts’ out-of-court statements about
the defendant’s numerical DNA profile, as D had explicitly referred to,
relied on, and vouched for the accuracy of work by the other analyst
or analysts that she did not perform or otherwise observe, and such
evidence constituted hearsay in light of the state’s concession that it
was offered to prove the truth of the matter asserted; moreover, the
evidence relating to the defendant’s numerical DNA profile was testimo-
nial in nature because it was created for the primary purpose of establish-
ing the defendant’s guilt at trial, as the buccal swab was performed after
the defendant had been arrested and charged with various crimes, was
obtained by court order for comparison with any DNA found on the
bandana discovered at the crime scene, and was processed in such a
way that the evidentiary purpose of the buccal swab analysis would
have been readily apparent to the analyst or analysts who conducted
it; furthermore, although all analysts who participate in the process of
generating a DNA profile need not testify, the state must call as a
witness an analyst with personal knowledge concerning the accuracy of
a numerical DNA profile, and, because D simply relayed to the jury the
DNA profile that had been provided to her by the analyst or analysts
and did not possess such knowledge with respect to the processing of
the defendant’s buccal swab, D was not a sufficient substitute witness
for purposes of the right to confrontation.
Argued January 23—officially released August 13, 2019
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, manslaughter in the first
degree with a firearm, attempt to commit robbery in
the first degree, conspiracy to commit robbery in the
first degree, and criminal possession of a pistol or
revolver, brought to the Superior Court in the judicial
district of Ansonia-Milford and tried to the jury before
Markle, J.; verdict and judgment of guilty of felony
murder, manslaughter in the first degree with a firearm,
attempt to commit robbery in the first degree, and crimi-
nal possession of a pistol or revolver, from which the
defendant appealed to the Appellate Court, Alvord,
Kahn and Bear, Js., which affirmed in part and reversed
in part the judgment of the trial court and remanded
the case for resentencing, and the defendant, on the
granting of certification, appealed to this court.
Reversed in part; new trial.
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Margaret E. Kelley, state’s
attorney, Cornelius Kelly, senior assistant state’s attor-
ney, and Rocco A. Chiarenza, assistant state’s attorney,
for the appellee (state).
Opinion
MULLINS, J. The sole issue in this certified appeal
is whether Appellate Court correctly concluded that
the defendant, Eugene L. Walker, failed to establish a
violation of his right under the sixth amendment to the
United States constitution to confront witnesses against
him. Specifically, the defendant asserts that the state
violated his right to confrontation by introducing evi-
dence at trial that his DNA profile, which had been
generated from a postarrest buccal swab, matched the
DNA found on evidence from the crime scene without
calling as a witness the analyst who processed the buc-
cal swab and generated the DNA profile used in that
comparison.
The defendant’s DNA profile was created after his
arrest in aid of an ongoing criminal investigation and
under circumstances objectively indicating that it was
created for the primary purpose of being used as evi-
dence in the defendant’s criminal case. In addition, the
sole analyst who testified about the DNA evidence at
trial neither performed nor observed the analysis of
the buccal swab that produced the DNA profile and,
therefore, was not a sufficient substitute witness to
satisfy the defendant’s right to confrontation. We con-
clude that, under the specific circumstances of this
case, the defendant has established a violation of his
right to confrontation. As a result, we reverse in part
the judgment of the Appellate Court.
The Appellate Court’s decision sets forth the follow-
ing relevant facts, which the jury reasonably could have
found. ‘‘On the night of October 28, 2012, Anthony
Adams, the codefendant in this consolidated trial, tele-
phoned Alexis Morrison to ask if she knew ‘somebody
that could sell him some weed.’ Morrison called Neville
Malacai Registe, the victim, to arrange for him to meet
with Adams in the parking lot of her West Haven resi-
dence. When the victim received Morrison’s telephone
call, he was with his friend, Stephon Green, at his moth-
er’s home in New Haven. After some time, the victim
and Green left in the victim’s Acura. As they approached
the designated parking lot, the victim called Morrison.
Morrison then telephoned Adams to tell him that the
victim ‘was there.’ Adams replied that he had already
left because the victim ‘took too long . . . and that
Day-Day and GZ [were] going to get the weed.’ ‘Day-
Day’ and ‘GZ’ were nicknames for Daquane Adams, who
is Anthony Adams’ cousin, and the defendant, respec-
tively, both of whom Morrison knew.
‘‘When the victim and Green arrived in the parking
lot, the victim backed his car into a parking space.
Green, who was rolling a marijuana joint in the front
passenger seat, looked up and noticed two men
approaching the Acura. He returned his attention to his
task, and the victim opened the driver’s door to talk to
one of the men. [That] man, who was wearing a black
bandana and who was later identified as the defendant,
held a revolver inside the car and said, ‘run it,’ meaning,
‘give me it. It’s a robbery . . . .’ A physical altercation
ensued. The second man, later identified as Daquane
Adams, stepped away from the Acura and placed a cell
phone call to someone. A Toyota arrived, and a third
man exited that car and asked the defendant for the
gun.1 The struggle over the gun continued inside the
victim’s Acura, and someone knocked Green into the
backseat. Daquane Adams and the third man pulled the
defendant out of the [Acura] and, as Green was climbing
back into the front passenger seat, a shot was fired.
Green heard the victim say, ‘oh, shit,’ and then heard
a second shot.
‘‘The defendant, Daquane Adams, and the third man
got in the Toyota and drove toward the parking lot exit.
With the victim slumped over in the driver’s seat, Green
pursued the Toyota. He caught up to it at the end of
the street and rammed the Acura into the back of the
Toyota. The victim’s Acura was disabled, but the Toyota
was able to be driven away. The victim died of a gunshot
wound to his head.’’ (Footnote in original.) State v.
Walker, 180 Conn. App. 291, 296–97, 183 A.3d 1 (2018).
The record reveals the following additional relevant
facts and procedural history. In December, 2012, the
defendant was arrested and charged with felony murder
in violation of General Statutes (Rev. to 2013) § 53a-
54c, conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 (a) and 53a-
134, and attempt to commit robbery in the first degree
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-134 (a) (2). Anthony Adams and Daquane Adams
also were arrested in December, 2012, and were subse-
quently charged with various offenses.
After the defendant’s arrest, the state continued its
investigation into the respective roles played by the
defendant, Anthony Adams, and Daquane Adams in the
shooting. During their initial investigation, the police
recovered from the Acura the black bandana that Green
identified as having been worn by the man who shot
the victim. The police sent the bandana to a laboratory
run by the Division of Scientific Services of the Depart-
ment of Emergency Services and Public Protection to
be analyzed for DNA. In June, 2013, the state filed a
motion in the present case requesting that the defendant
submit to a buccal swab of his mouth2 ‘‘for purposes
of obtaining a DNA sample.’’ The state argued that the
DNA ‘‘will be of material aid in determining whether
the defendant committed the crime of felony murder.’’
The court granted the state’s motion, and Tammy Mur-
ray, a detective in the West Haven Police Department,
took the defendant’s buccal swab on June 19, 2013.
Murray also took buccal swabs from Anthony Adams
and Daquane Adams.3 Those three buccal swabs, as
well as a sample of the victim’s blood, were then sent
to the laboratory to be analyzed.
At the laboratory, Heather Degnan, a supervisory
forensic analyst, received the three buccal swabs and
the victim’s blood sample and sent them to the ‘‘known
processing group’’—a group within the laboratory that
processes all known DNA samples to be used in compar-
isons—to be analyzed. The known processing group
generated a DNA profile from each sample and provided
the profiles to Degnan. Degnan generated DNA profiles
from the bandana, which she then compared with the
known profiles that had been provided to her. As a
result of that comparison, Degnan determined that the
defendant was a major contributor to the DNA on the
bandana. The victim, Anthony Adams, and Daquane
Adams were eliminated as potential contributors. Deg-
nan memorialized her findings in a ‘‘DNA Report’’ dated
August 28, 2013 (report).
After Degnan issued her report linking the defendant
to the bandana believed to have been worn by the
shooter, the state filed an amended substitute informa-
tion charging the defendant with the additional crimes
of manslaughter in the first degree with a firearm in
violation of General Statutes §§ 53a-55 (a) (1) and 53a-
55a (a), and criminal possession of a pistol or revolver
in violation of General Statutes (Rev. to 2013) § 53a-
217c (a) (1).
The envelope containing the defendant’s buccal swab
that Murray submitted to the laboratory was admitted
into evidence. A review of that exhibit reveals that the
envelope is labeled with the defendant’s name, his right
thumbprint, and the words ‘‘DNA Buccal Swab Kit.’’
The envelope lists ‘‘West Haven P.D.’’ as the submitting
agency and displays a notation reading ‘‘Incident: Homi-
cide.’’ The envelope identifies the defendant’s address
as the MacDougall-Walker Correctional Institution.
Following Murray’s testimony, the state called Deg-
nan to testify. She began by explaining the standard
DNA typing techniques used by the laboratory in gener-
ating DNA profiles. She testified that the process
involves four steps: (1) extracting DNA from the sample
and purifying it of contaminants; (2) quantitating the
DNA, i.e., determining the amount of DNA that has
been extracted; (3) amplifying the DNA using a thermal
cycler machine, i.e., creating many copies of different
regions of the DNA; and (4) interpreting the data gener-
ated from these steps and constructing the numerical
DNA profile, which consists of a series of numbers to
designate the ‘‘alleles.’’4
Degnan further testified about her analysis and find-
ings. Degnan testified that she personally analyzed the
bandana using standard DNA typing techniques. She
isolated DNA from both sides of the bandana and gener-
ated DNA profiles of at least two contributors, a major
contributor and a minor contributor. With respect to the
buccal swabs and the victim’s blood sample, however,
Degnan testified that she did not generate those DNA
profiles herself. Degnan explained that the swabs and
blood sample were sent to the known processing group,
which generated DNA profiles from the samples and
then ‘‘provided’’ those profiles to her for comparison
with the DNA from the bandana.
Before Degnan testified as to the results of her com-
parison, defense counsel objected to the admission of
this evidence on the ground that Degnan had not been
qualified as an expert. During voir dire examinations
conducted in the jury’s presence, Degnan admitted that
she neither participated in the known processing
group’s analysis of the defendant’s buccal swab nor
observed the analysis being conducted.
Nonetheless, when asked whether she was ‘‘swearing
to the accuracy’’ of the DNA profile provided to her,
Degnan responded by saying ‘‘[y]es.’’ Degnan further
testified that, in addition to the profile itself, the known
processing group provided her with ‘‘paperwork’’ indi-
cating that ‘‘all of the checkboxes were check[ed]’’—
that is, that the analyst or analysts who processed the
known samples ‘‘did it properly, followed standard
operating procedures.’’ Degnan confirmed, however,
that she ‘‘wasn’t there’’ when the known processing
group analyzed the defendant’s buccal swab.
Ultimately, the trial court overruled the objection and
permitted Degnan to testify to the results of her analysis.
Degnan testified that, based on her analysis and DNA
comparison, the defendant was a major contributor to
the DNA found on both sides of the bandana. Degnan’s
report was admitted into evidence.5 In the report, Deg-
nan explained that the buccal swab was analyzed in
accordance with standard laboratory procedures. The
report also contains a table setting forth the numerical
profiles generated from the defendant’s buccal swab,
the bandana, and the victim’s blood sample. On the
basis of a comparison of these profiles, Degnan con-
cluded that the defendant ‘‘is included as a contributor
to the DNA profiles’’ obtained from the bandana. The
report was signed by Degnan and Dahong Sun, a ‘‘tech-
nical reviewer’’ who reviewed Degnan’s work and con-
firmed the accuracy of her conclusions. The final page
of the report, just above Degnan’s and Sun’s signatures,
provides: ‘‘This report reflects the test results, conclu-
sions, interpretations, and/or the findings of the analyst
as indicated by their signature below.’’6 No one from
the known processing group testified at trial.
The jury found the defendant guilty of felony murder,
manslaughter in the first degree with a firearm, attempt
to commit robbery in the first degree, and criminal
possession of a pistol or revolver.7 State v. Walker,
supra, 180 Conn. App. 297. The court imposed a total
effective sentence of forty-five years incarceration to
be followed by ten years of special parole. Id.
The defendant then appealed to the Appellate Court,
claiming, inter alia, that he was deprived of his sixth
amendment right to confront witnesses against him
because the trial court admitted the evidence of Deg-
nan’s comparison without requiring an analyst from
the known processing group who generated the known
DNA profile used in that comparison to testify. Id.,
297–98. The Appellate Court first concluded that,
despite the defendant’s failure to raise the confrontation
clause as an objection at trial, the claim was reviewable
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989). State v. Walker, supra, 180 Conn. App.
301–302.
The Appellate Court further concluded, however, that
the defendant’s claim failed under Golding because the
admission of the DNA evidence did not violate his con-
stitutional right to confrontation. Id., 302. The Appellate
Court reasoned principally that Degnan, the analyst
who ‘‘conducted the critical analysis and made the
resulting findings’’ that connected the defendant to the
bandana from the crime scene, testified and was avail-
able for cross-examination at trial regarding her analy-
sis and findings. Id.8
Upon our grant of certification to appeal, the defen-
dant claims that the Appellate Court incorrectly con-
cluded that the introduction of the evidence concerning
his DNA profile did not violate his confrontation rights.9
Because the defendant failed to raise a confrontation
clause objection in the trial court, we review this claim
pursuant to Golding. See, e.g., State v. Smith, 289 Conn.
598, 620–21, 960 A.2d 993 (2008). Under Golding, ‘‘a
defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Newton, 330 Conn. 344, 353, 194 A.3d 272 (2018); see
also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015) (modifying third prong of Golding).
The first two prongs of Golding are satisfied here.
The record is adequate for review, and the defendant’s
claim is of constitutional magnitude because it impli-
cates his sixth amendment right to confrontation. Fur-
thermore, the state does not attempt to meet its burden
of establishing that the error was harmless beyond a
reasonable doubt. Accordingly, the sole issue in this
appeal concerns the third prong of Golding—namely,
whether the defendant has established a violation of
his sixth amendment confrontation rights.
The defendant claims that his right to confrontation
was violated because the DNA profile generated from
his postarrest buccal swab and provided to Degnan for
use in a comparison was testimonial hearsay, and the
analyst who generated the profile was not made avail-
able for cross-examination at trial. As support for this
claim, the defendant contends that the evidence of his
DNA profile was offered for its truth and was generated
for the primary purpose of providing evidence against
him in his criminal case. In response, the state contends
that the evidence admitted concerning Degnan’s DNA
comparison was neither hearsay nor testimonial in
nature. Alternatively, the state contends that, even if the
DNA profile were testimonial hearsay, the defendant’s
right to confrontation was satisfied because he had the
opportunity to cross-examine Degnan, who personally
processed the bandana and made the comparison, and
who was familiar with the laboratory’s standard proce-
dures for conducting DNA analyses. We agree with the
defendant that, under the circumstances of this case,
the admission of the evidence concerning his DNA pro-
file violated his sixth amendment right to confrontation.
The sixth amendment to the United States constitu-
tion, applicable to the states through the fourteenth
amendment,10 provides in relevant part: ‘‘In all criminal
prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .’’
U.S. Const., amend. VI. ‘‘In Crawford v. Washington,
[541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)],
the [United States] Supreme Court substantially revised
its approach to confrontation clause claims. Under
Crawford, testimonial hearsay is admissible against a
criminal defendant at trial only if the defendant had a
prior opportunity for cross-examination and the witness
is unavailable to testify at trial. . . . In adopting this
‘categorical’ approach, the court overturned existing
precedent that had applied an ‘open-ended balancing
[test]’ . . . conditioning the admissibility of out-of-
court statements on a court’s determination of whether
the proffered statements bore ‘adequate indicia of relia-
bility.’ . . . Although Crawford’s revision of the court’s
confrontation clause jurisprudence is significant, its
rules govern the admissibility only of certain classes
of statements, namely, testimonial hearsay.’’ (Citations
omitted.) State v. Buckland, 313 Conn. 205, 212–13, 96
A.3d 1163 (2014), cert. denied, U.S. , 135 S. Ct.
992, 190 L. Ed. 2d 837 (2015). Accordingly, the threshold
inquiries in a confrontation clause analysis ‘‘are whether
the statement was hearsay, and if so, whether the state-
ment was testimonial in nature . . . .’’ State v. Smith,
supra, 289 Conn. 618–19. These are questions of law
over which our review is plenary. Id., 619.
With these principles in mind, we address the three
components of the defendant’s confrontation clause
claim: (1) whether the evidence was hearsay, (2)
whether the evidence was testimonial, and (3) whether
the defendant’s cross-examination of Degnan was suffi-
cient to satisfy the confrontation clause.
I
The defendant first contends that the evidence of his
known DNA profile, which Degnan testified she utilized
in making her comparison to the DNA on the bandana,
was hearsay. The defendant notes that Degnan neither
participated in nor observed the analysis of his buccal
swab that yielded the profile but, instead, relied upon
the profile provided to her by the known processing
group in conducting her comparison. Therefore, the
defendant maintains, Degnan’s testimony necessarily
introduced the known processing group’s hearsay state-
ments about the numerical profile.
In response, the state concedes that the evidence of
the defendant’s DNA profile was offered for its truth
but nonetheless contends that the evidence was not
hearsay because Degnan, an expert witness, testified
in court to her own independent opinion that the DNA
profile was accurate. In other words, the state contends
that Degnan’s testimony did not introduce any out-of-
court statements concerning the profile because Deg-
nan adopted any such statements as her own and was
cross-examined about them at trial. We agree with the
defendant that the evidence of his DNA profile was
hearsay.
‘‘Hearsay’’ is ‘‘a statement, other than one made by
the declarant while testifying at the proceeding, offered
in evidence to establish the truth of the matter
asserted.’’ (Emphasis added.) Conn. Code Evid. § 8-1
(3). The confrontation clause ‘‘does not bar admission
of a statement so long as the declarant is present at
trial to defend or explain it.’’ Crawford v. Washington,
supra, 541 U.S. 60 n.9.
Because the state concedes that the evidence of the
numerical DNA profile generated from the defendant’s
buccal swab was offered for its truth, the sole issue in
our hearsay analysis is whether Degnan’s testimony
introduced into evidence the known processing group’s
out-of-court statements about the profile, as the defen-
dant contends, or merely presented her own, indepen-
dent opinion that the profile provided to her was
accurate.
As a general matter, we acknowledge that expert
witnesses such as Degnan may base their testimony on
information provided to them by other sources without
their testimony necessarily being regarded as introduc-
ing hearsay. Indeed, § 7-4 (b) of the Connecticut Code
of Evidence provides in relevant part: ‘‘The facts in the
particular case upon which an expert bases an opinion
may be those perceived by or made known to the expert
at or before the proceeding. The facts need not be
admissible in evidence if of a type customarily relied
on by experts in the particular field in forming opinions
on the subject. . . .’’ The ‘‘[i]nadmissible facts upon
which experts customarily rely in forming opinions can
be derived from sources such as conversations, infor-
mal opinions, written reports and data compilations.’’
(Internal quotation marks omitted.) Milliun v. New Mil-
ford Hospital, 310 Conn. 711, 726, 80 A.3d 887 (2013),
quoting Conn. Code Evid. (2009) § 7-4 (b), commentary.
Accordingly, ‘‘[w]hen the expert witness has consulted
numerous sources, and uses that information, together
with his own professional knowledge and experience,
to arrive at his opinion, that opinion is regarded as
evidence in its own right and not as hearsay in dis-
guise.’’ (Emphasis added; internal quotation marks
omitted.) Milliun v. New Milford Hospital, supra,
726–27.
Nonetheless, the underlying information upon which
the expert’s opinion is based may not itself be admitted
into evidence for its truth. Indeed, § 7-4 (b) of the Con-
necticut Code of Evidence further provides in relevant
part: ‘‘The facts relied on [by the expert] pursuant to
this subsection are not substantive evidence, unless
otherwise admissible as such evidence.’’ This language
‘‘expressly forbids the facts upon which the expert
based his or her opinion to be admitted for their truth
unless otherwise substantively admissible under other
provisions of the Code. Thus, [§ 7-4] (b) does not consti-
tute an exception to the hearsay rule or any other exclu-
sionary provision of the Code.’’ (Emphasis in original;
internal quotation marks omitted.) Milliun v. New Mil-
ford Hospital, supra, 310 Conn. 726, quoting Conn. Code
Evid. (2009) § 7-4 (b), commentary. Accordingly, the
testimony of an expert witness improperly introduces
hearsay when the out-of-court statements upon which
it is based are themselves admitted into evidence to
prove the truth of what they assert. See, e.g., id., 728
(observing that physician’s report offered for substan-
tive purposes would be barred if it ‘‘include[d] hearsay
statements’’); Farrell v. Bass, 90 Conn. App. 804, 817–19,
879 A.2d 516 (2005) (concluding that trial court properly
precluded expert witness from testifying about hearsay
contents of article that supported his opinion where
article itself was not admitted into evidence).
In criminal cases, the admission of expert testimony
that is based upon an out-of-court statement may impli-
cate the confrontation clause if the underlying state-
ment itself is testimonial. Acknowledging these con-
cerns, courts have held that expert witnesses may base
their opinions on the testimonial findings of other
experts without violating the confrontation clause if
those underlying findings are not themselves put before
the jury. See Williams v. Illinois, 567 U.S. 50, 71, 132
S. Ct. 2221, 183 L. Ed. 2d 89 (2012) (plurality opinion)
(no confrontation clause violation where testifying
expert ‘‘made no . . . reference to the [nontestifying
analyst’s] report, which was not admitted into evidence
and was not seen by the trier of fact,’’ and did not
testify to ‘‘anything that was done at the [nontestifying
expert’s] lab [or] vouch for the quality of [the] work’’);
Bullcoming v. New Mexico, 564 U.S. 647, 673, 131 S.
Ct. 2705, 180 L. Ed. 2d 610 (2011) (Sotomayor, J., concur-
ring in part) (concluding that admission of testimonial
report violated confrontation clause but noting that
‘‘[w]e would face a different question if asked to deter-
mine the constitutionality of allowing an expert witness
to discuss others’ testimonial statements if the testimo-
nial statements were not themselves admitted as evi-
dence’’); United States v. Locascio, 6 F.3d 924, 937–38
(2d Cir. 1993) (expert’s opinion that was based upon
information gleaned from ‘‘countless nameless inform-
ers and countless tapes not in evidence’’ did not violate
hearsay bar or confrontation clause [emphasis added;
internal quotation marks omitted]), cert. denied, 511
U.S. 1070, 114 S. Ct. 1645, 128 L. Ed. 2d 365 (1994);
State v. Griep, 361 Wis. 2d 657, 682–83, 863 N.W.2d
567 (2015) (no confrontation clause violation where
nontestifying analyst’s ‘‘testimonial statements do not
come into evidence, i.e., where the testimonial forensic
report is not admitted and the expert witness who testi-
fies at trial gives his or her independent opinion after
review of laboratory data’’), cert. denied, U.S. ,
136 S. Ct. 793, 193 L. Ed. 2d 709 (2016); Paredes v.
State, 439 S.W.3d 522, 526 (Tex. App. 2014) (‘‘a testifying
expert may rely on unadmitted data generated by a
[nontestifying] analyst . . . without violating the
[c]onfrontation [c]lause’’), aff’d, 462 S.W.3d 510 (Tex.),
cert. denied, U.S. , 136 S. Ct. 483, 193 L. Ed. 2d
354 (2015).
On the other hand, where the testifying expert explic-
itly refers to, relies on, or vouches for the accuracy of
the other expert’s findings, the testifying expert has
introduced out-of-court statements that, if offered for
their truth and are testimonial in nature, are subject to
the confrontation clause. As the District of Columbia
Court of Appeals explained in Young v. United States,
63 A.3d 1033 (D.C. 2013), a testifying expert ‘‘relayed
hearsay’’ when she testified ‘‘that she matched a DNA
profile derived from [the defendant’s] buccal swab with
male DNA profiles derived from [the victim’s] vaginal
swabs and her discarded tissue. Because [the testifying
expert] was not personally involved in the process that
generated the [DNA] profiles, she had no personal
knowledge of how or from what sources the profiles
were produced. She was relaying, for their truth, the
substance of out-of-court assertions by absent lab tech-
nicians that, employing certain procedures, they
derived the profiles from the evidence furnished by
[the victim] or [the defendant]. Those assertions were
hearsay.’’ Id., 1045; see also United States v. Pablo, 696
F.3d 1280, 1288 (10th Cir. 2012) (‘‘[i]f an expert simply
parrots another individual’s out-of-court statement,
rather than conveying an independent judgment that
only incidentally discloses the statement to assist the
jury in evaluating the expert’s opinion, then the expert
is, in effect, disclosing that out-of-court statement for
its substantive truth; the expert thereby becomes little
more than a backdoor conduit for an otherwise inadmis-
sible statement’’); United States v. Dukagjini, 326 F.3d
45, 59 (2d Cir. 2003) (expert’s opinion about interpreta-
tion of coded language in recorded conversations vio-
lated hearsay bar and confrontation clause because tes-
timony explicitly referred to conversations between
expert and informants as bases for expert’s opinion),
cert. denied sub nom. Griffin v. United States, 541
U.S. 1092, 124 S. Ct. 2832, 159 L. Ed. 2d 259 (2004);
Commonwealth v. Barbosa, 457 Mass. 773, 783–86, 933
N.E.2d 93 (2010) (confrontation rights were violated
by analyst’s testimony that other analyst agreed with
testifying analyst’s opinion regarding DNA testing, and
by admission into evidence of table showing nontesti-
fying analyst’s findings), cert. denied, 563 U.S. 990, 131
S. Ct. 2441, 179 L. Ed. 2d 1214 (2011).
Therefore, as courts consistently have recognized,
expert witnesses cannot be used as conduits for the
admission into evidence of the testimonial statements
of others. This would permit testifying experts to simply
relay the findings of other experts while immunizing
those underlying findings from scrutiny on cross-exami-
nation. The state cannot ‘‘rely on [the testifying wit-
ness’] status as an expert to circumvent the [c]onfronta-
tion [c]lause’s requirements.’’ Williams v. Illinois,
supra, 567 U.S. 126 (Kagan, J., dissenting); see United
States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)
(‘‘[a]llowing a witness simply to parrot out-of-court tes-
timonial statements of cooperating witnesses and confi-
dential informants directly to the jury in the guise of
expert opinion would provide an end run around Craw-
ford’’ [internal quotation marks omitted]); Common-
wealth v. Barbosa, supra, 457 Mass. 784 (admission of
second expert’s opinion through testifying expert would
violate confrontation clause ‘‘because the opinion of
the second expert would not be subject to cross-exami-
nation’’); People v. John, 27 N.Y.3d 294, 309, 52 N.E.3d
1114, 33 N.Y.S.3d 88 (2016) (‘‘[T]hese critical analysts
who engaged in an independent and qualitative analysis
of the data during the DNA typing tests—none of whom
was claimed to be unavailable—were effectively insu-
lated from cross-examination. [The testifying analyst],
instead, was permitted to parrot the recorded findings
that were derived from the critical witnesses’ subjective
analyses.’’); see also United States v. Meises, 645 F.3d
5, 22 (1st Cir. 2011) (prosecutors ‘‘cannot be permitted
to circumvent the [c]onfrontation [c]lause by introduc-
ing the same substantive testimony in a different form’’
[internal quotation marks omitted]).
In the present case, Degnan testified at trial to her
opinion that the defendant was a contributor to the
DNA on the bandana recovered from the crime scene.
She based this testimony on her comparison of the
DNA profiles she derived from the bandana to the DNA
profile generated by the known processing group from
the defendant’s buccal swab. Degnan performed the
analysis of the bandana and conducted the ultimate
comparison herself. She was not, however, involved in
the analysis of the buccal swab, which was an essential
component of the comparison making her opinion pos-
sible. There was no comparison without the buccal
swab analysis. Rather, the known processing group con-
ducted this analysis and provided the resulting DNA
profile to Degnan for her to use in her comparison.
Degnan neither participated in nor observed this analy-
sis. There is also no evidence contained within the
record indicating that the known processing group pro-
vided Degnan with the raw machine data generated
from the preliminary stages of the analysis such that
Degnan could independently verify that the DNA profile
had accurately been constructed.11 Despite having been
uninvolved in the analysis, Degnan relied on that known
profile in order to complete her analysis and testified
that she was ‘‘swearing to the accuracy’’ of the DNA
profile that the known processing group had provided
to her.
We agree with the defendant that Degnan’s testimony
at trial necessarily introduced the out-of-court state-
ments of the known processing group and did not con-
sist merely of her own independent opinion. To be clear,
Degnan’s testimony about the DNA profiles she gener-
ated from the bandana was not hearsay because she
conducted these analyses herself. Rather, Degnan
explicitly referred to, relied on, and vouched for the
quality of work that she did not perform and, in so
doing, relayed to the jury the known processing group’s
out-of-court statements about the defendant’s numeri-
cal DNA profile. See People v. Austin, 30 N.Y.3d 98,
105, 86 N.E.3d 542, 64 N.Y.S.3d 650 (2017) (‘‘Although
the criminalist [who testified at trial] may have had
some level of involvement in [the laboratory’s] handling
of some of the . . . crime scene swabs, he had no role
whatsoever in the testing of [the] defendant’s post-accu-
satory buccal swab. His testimony was, therefore,
merely a conduit for the conclusions of others . . . .’’
[Citation omitted; internal quotation marks omitted.]).
These assertions were hearsay.
Moreover, Degnan introduced the known processing
group’s out-of-court statements by including in her
report, which was admitted into evidence without limi-
tation, the allele numbers comprising the defendant’s
DNA profile that the known processing group had pro-
vided to her. See Commonwealth v. McCowen, 458
Mass. 461, 482–83, 939 N.E.2d 735 (2010) (concluding
that testifying analyst introduced hearsay by admitting
chart into evidence that compared alleles from DNA
taken from victim, which analyst generated herself, and
alleles from defendant’s known sample, which were
generated by another analyst). The report provides that
the DNA was extracted from the defendant’s buccal
swab and analyzed according to standard laboratory
procedure. The report then states that ‘‘[t]he following
results were obtained on the amplified items’’ and lists
the alleles generated by the known processing group.
The report further contains Degnan’s conclusion that,
based on the comparison of the alleles from the buccal
swab and the profiles she generated from the bandana,
the defendant was a contributor to the DNA on the
bandana. Finally, just above Degnan’s signature, the
report contains the following language: ‘‘This report
reflects the test results, conclusions, interpretations,
and/or the findings of the analyst as indicated by their
signature below,’’ with no disclaimer that Degnan was
not involved in generating the known profile.
We therefore do not agree with the state’s contention
that Degnan’s testimony did not introduce any out-of-
court statements. In order for Degnan to reach her
conclusion that the defendant was a match to the DNA
found on the bandana, she had to rely on and incorpo-
rate the known processing group’s findings into her
own. Moreover, the underlying findings of the known
processing group upon which she relied were them-
selves admitted into evidence in multiple forms.
Because the state concedes that this evidence was
offered for its truth—a concession we think unavoid-
able—it is hearsay and, if testimonial in nature; see part
II of this opinion; implicates the defendant’s confronta-
tion rights. Concluding otherwise merely because Deg-
nan is an expert witness would immunize from cross-
examination the analyst or analysts of the known pro-
cessing group who made the critical findings upon
which Degnan’s comparison was based.
Finally, we note that the Appellate Court concluded
that the evidence of the defendant’s DNA profile was
not offered for its truth but, rather, to explain the
assumptions upon which Degnan based her opinion that
the defendant’s DNA profile matched the DNA found
on the bandana. State v. Walker, supra, 180 Conn. App.
307. As support for this conclusion, the Appellate Court
cited the plurality opinion in Williams v. Illinois, supra,
567 U.S. 50, and, specifically, the plurality’s observation
that ‘‘[o]ut-of-court statements that are related by the
expert solely for the purpose of explaining the assump-
tions on which that opinion rests are not offered for
their truth and thus fall outside the scope of the [c]on-
frontation [c]lause.’’ Id., 58. We have recognized this
evidentiary principle in other contexts. See State v.
Copas, 252 Conn. 318, 328, 746 A.2d 761 (2000)
(‘‘[a]lthough some of the facts considered by the experts
. . . may not [be] substantively admissible . . . the
parties [are] not precluded from examining the experts
about those facts insofar as they related to the basis
for the experts’ opinions’’ [citations omitted]).
As previously noted, however, on appeal to this court
the state has conceded, and we agree, that the evidence
of the defendant’s known DNA profile was offered for
its truth. The present case therefore does not involve
a situation in which the evidence was offered ‘‘solely’’
for the purposes of explaining an expert’s assumptions,
as the plurality believed to be the case in Williams. We
note, moreover, that five justices in Williams rejected
the plurality’s hearsay analysis and instead concluded
that the evidence of the DNA profile used as part of a
comparison was offered for its truth because it lacked
any relevance to the case apart from its truth. See Wil-
liams v. Illinois, supra, 567 U.S. 106 (Thomas, J., con-
curring in judgment); id., 126–27 (Kagan, J., dissenting);
see also United States v. James, 712 F.3d 79, 95 (2d
Cir. 2013) (‘‘[t]he Williams plurality’s first rationale—
that the laboratory report there was offered as basis
evidence, and not for its truth—was roundly rejected
by five [j]ustices’’), cert. denied, 572 U.S. 1134, 134 S.
Ct. 2660, 189 L. Ed. 2d 208 (2014); Young v. United
States, supra, 63 A.3d 1045 (evidence of known DNA
profiles necessarily were offered for their truth
because, without nontestifying analysts’ assertions
regarding accuracy of profiles, ‘‘what would have been
left of [the testifying analyst’s] testimony—that she
matched two DNA profiles she could not herself iden-
tify—would have been meaningless’’). Because the evi-
dence was offered for its truth, we need not address
the question of whether such DNA evidence could, in
other circumstances, be admitted for a nonhearsay
purpose.
II
The defendant next contends that the evidence of his
numerical DNA profile was testimonial because it was
created for the primary purpose of establishing his guilt
at trial. We agree with the defendant that, under the
circumstances of this case, the known DNA profile
was testimonial.
We begin with the general principles governing our
analysis. ‘‘[T]he confrontation clause applies only to
statements that are testimonial in nature. . . . As a
general matter, a testimonial statement is typically [a]
solemn declaration or affirmation made for the purpose
of establishing or proving some fact. . . . Although the
United States Supreme Court did not provide a compre-
hensive definition of what constitutes a testimonial
statement in Crawford, the court did describe three
core classes of testimonial statements: [1] ex parte in-
court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-
examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially
. . . [2] extrajudicial statements . . . contained in for-
malized testimonial materials, such as affidavits, depo-
sitions, prior testimony, or confessions [and] . . . [3]
statements that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a later
trial . . . .’’ (Citations omitted; internal quotation
marks omitted.) State v. Smith, supra, 289 Conn. 622–
23. The present case concerns only this third category
form of testimonial statements.
‘‘[I]n Davis v. Washington, [547 U.S. 813, 822, 126 S.
Ct. 2266, 165 L. Ed. 2d 224 (2006)], the United States
Supreme Court elaborated on the third category and
applied a ‘primary purpose’ test to distinguish testimo-
nial from nontestimonial statements given to police offi-
cials, holding: ‘Statements are nontestimonial when
made in the course of police interrogation under cir-
cumstances objectively indicating that the primary pur-
pose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prose-
cution.’ . . .
‘‘In State v. Slater, [285 Conn. 162, 172 n.8, 939 A.2d
1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L.
Ed. 2d 822 (2008)], we reconciled Crawford and Davis,
noting: ‘We view the primary purpose gloss articulated
in Davis as entirely consistent with Crawford’s focus
on the reasonable expectation of the declarant. . . .
[I]n focusing on the primary purpose of the communica-
tion, Davis provides a practical way to resolve what
Crawford had identified as the crucial issue in determin-
ing whether out-of-court statements are testimonial,
namely, whether the circumstances would lead an
objective witness reasonably to believe that the state-
ments would later be used in a prosecution.’ ’’ (Citations
omitted.) State v. Smith, supra, 289 Conn. 623–24.
With these background principles in mind, our analy-
sis of the testimonial nature of the DNA evidence at
issue in the present case requires a review of the trilogy
of United States Supreme Court cases applying these
principles in the context of forensic evidence—Melen-
dez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009), Bullcoming v. New Mexico,
supra, 564 U.S. 647, and Williams v. Illinois, supra, 567
U.S. 50.
In Melendez-Diaz, during the defendant’s trial on nar-
cotics violations, the prosecution introduced into evi-
dence three laboratory ‘‘ ‘certificates of analysis’ ’’ stat-
ing that the substance seized from the defendant was
cocaine. Melendez-Diaz v. Massachusetts, supra, 557
U.S. 308. The United States Supreme Court held that the
certificates were within the ‘‘core class of testimonial
statements’’ because they were ‘‘made under circum-
stances which would lead an objective witness reason-
ably to believe that the statement would be available
for use at a later trial.’’ (Internal quotation marks omit-
ted.) Id., 310. The court explained that the analysts’
reports were ‘‘quite plainly’’ affidavits, that is, ‘‘declara-
tion[s] of facts written down and sworn to by the declar-
ant before an officer authorized to administer oaths,’’
and were ‘‘functionally identical to live, in-court testi-
mony.’’ (Internal quotation marks omitted.) Id., 310–11.
The court also noted that, under Massachusetts law,
the ‘‘sole purpose’’ of the affidavits was to establish
the composition, quality and weight of the substance
believed to be cocaine and that it could be ‘‘safely
assume[d]’’ that the analysts ‘‘were aware of the affida-
vits’ evidentiary purpose, since that purpose . . . was
reprinted on the affidavits themselves.’’ Id., 311.
In Bullcoming v. New Mexico, supra, 564 U.S. 663,
the court held that the admission at trial of a lab report
certifying that the defendant’s blood alcohol content
exceeded the threshold for the offense of aggravated
driving while intoxicated violated the confrontation
clause. Emphasizing that ‘‘[a] document created solely
for an ‘evidentiary purpose’ . . . made in aid of a police
investigation, ranks as testimonial,’’ the court con-
cluded that the report, although not sworn or notarized,
closely resembled the reports at issue in Melendez-
Diaz. Id., 664. That is, law enforcement had provided
seized evidence to a state laboratory for testing, an
analyst tested the evidence and prepared a certificate
concerning the results, and the certificate was formal-
ized in a signed document entitled ‘‘ ‘report,’ ’’ which
contained a reference to local rules concerning the
admission of certified blood alcohol test results. Id.,
665. These circumstances, the court concluded, were
‘‘more than adequate’’ to qualify the analyst’s report as
testimonial. Id. Furthermore, the court held that the
testimony of a surrogate witness, who was familiar with
the device used in the test and the laboratory’s testing
procedures but who did not conduct or observe this
particular test, was insufficient to satisfy the confronta-
tion clause. Id., 661–62.
Finally, in Williams v. Illinois, supra, 567 U.S. 59,
an outside laboratory provided the police with a DNA
profile generated from semen found on a vaginal swab
of the victim of a rape. The police entered the profile
into its DNA database and received notification of a
cold hit with the defendant’s DNA profile, which had
been entered into the database due to an unrelated
arrest. Id. The defendant was arrested and charged with
the victim’s rape. Id., 59–60. At trial, the prosecution
called the analyst who prepared the defendant’s DNA
profile in connection with the unrelated arrest, as well
as the analyst who compared that profile to the DNA
generated by the outside laboratory from the victim’s
vaginal swab. Id., 60–62. No one from the outside labora-
tory who generated the profile from the vaginal swab,
however, testified at trial. Id., 62.
Five justices agreed that the profile from the vaginal
swabs relied upon by the analyst to make her compari-
son was not testimonial but the fifth justice rejected
the plurality’s ‘‘flawed analysis’’; id., 104 (Thomas, J.,
concurring in judgment); as did the four dissenting jus-
tices. Id., 135–38 (Kagan, J., dissenting). The plurality
opinion, written by Justice Alito, concluded that the
evidence was not testimonial because ‘‘the primary pur-
pose of the [outside laboratory’s] report, viewed objec-
tively, was not to accuse [the defendant] or to create
evidence for use at trial. When the [police] sent the
sample to [the outside laboratory], its primary purpose
was to catch a dangerous rapist who was still at large,
not to obtain evidence for use against [the defendant],
who was neither in custody nor under suspicion at that
time.’’ Id., 84. The plurality reasoned that, because no
one from the outside laboratory could have known the
profile would inculpate the defendant—or anyone else
whose DNA profile was in the police database—‘‘there
was no prospect of fabrication and no incentive to pro-
duce anything other than a scientifically sound and
reliable profile.’’12 (Internal quotation marks omitted.)
Id., 84–85.
Justice Thomas authored a separate opinion concur-
ring in the judgment reiterating his view that the con-
frontation clause covers only ‘‘formalized testimonial
materials, such as depositions, affidavits, and prior tes-
timony, or statements resulting from formalized dia-
logue, such as custodial interrogation.’’ (Internal quota-
tion marks omitted.) Id., 111. He reasoned that the
primary purpose test, as articulated in Davis, was a
necessary but insufficient criterion to render a state-
ment testimonial because statements often serve more
than one purpose. Id., 114. He concluded that the report
at issue was not sufficiently formal to be testimonial
because it was not sworn or certified. Id., 111. Justice
Thomas and the four dissenting justices, however,
rejected the plurality’s view that a statement must have
the primary purpose of accusing a targeted individual
of criminal conduct in order to be testimonial. Id., 114.
(Thomas, J., concurring in judgment); id., 135 (Kagan,
J., dissenting).
Justice Kagan, writing for the four dissenting justices,
concluded that the court’s prior decisions in Melendez-
Diaz and Bullcoming compelled the conclusion that
the DNA profile in the outside laboratory’s report was
testimonial because it was ‘‘a statement [that] was made
for the primary purpose of establishing past events
potentially relevant to later criminal prosecution—in
other words, for the purpose of providing evidence.’’
(Internal quotation marks omitted.) Id., 135. The dis-
senting justices rejected Justice Thomas’ view that the
statements were not testimonial because they were not
sworn or certified, arguing that, similar to the reports
deemed testimonial in the court’s prior cases, the report
was ‘‘an official and signed record of laboratory test
results, meant to establish a certain set of facts in legal
proceedings.’’ Id., 139 (Kagan, J., dissenting).
Due to the fractured nature of the Williams decision,
courts have struggled to determine the effect of Wil-
liams, if any, on the legal principles governing confron-
tation clause claims. See United States v. James, supra,
712 F.3d 95–96 (applying previous case law because
Williams yielded no single, useful holding); see also
Williams v. Illinois, supra, 567 U.S. 141 (Kagan, J.,
dissenting) (‘‘[t]he five [j]ustices who control the out-
come of today’s case agree on very little’’ and ‘‘have left
significant confusion in their wake’’). In ascertaining the
effect of Williams, we note that, ‘‘[w]hen a fragmented
Court decides a case and no single rationale explaining
the result enjoys the assent of five [j]ustices, the holding
of the [c]ourt may be viewed as that position taken by
those [m]embers who concurred in the judgments on
the narrowest grounds.’’ (Internal quotation marks
omitted.) Marks v. United States, 430 U.S. 188, 193, 97
S. Ct. 990, 51 L. Ed. 2d 260 (1977). As we recently
observed, the court in Williams ‘‘made it impossible to
identify the narrowest ground because the analyses of
the various opinions are irreconcilable.’’ State v. Sin-
clair, 332 Conn. 204, 225, A.3d (2019). Conse-
quently, we explained in Sinclair that ‘‘we must rely
on Supreme Court precedent before Williams to the
effect that a statement triggers the protections of the
[c]onfrontation [c]lause when it is made with the pri-
mary purpose of creating a record for use at a later
criminal trial.’’ (Internal quotation marks omitted.)
State v. Sinclair, supra, 225, quoting United States v.
James, supra, 712 F.3d 95–96; see also United States
v. Duron-Caldera, 737 F.3d 988, 994 and n.4 (5th Cir.
2013).
The issue in the present case does not concern the
testimonial nature of Degnan’s report or DNA compari-
son. Degnan made the comparison herself and was
cross-examined about it at trial. Instead, we must deter-
mine whether the defendant’s known DNA profile,
which was obtained from a postarrest buccal swab and
provided to Degnan for her to use in making a compari-
son to DNA found on crime scene evidence, ranks as tes-
timonial.
As to this specific question, we find persuasive a
series of decisions from the New York Court of Appeals.
In People v. John, supra, 27 N.Y.3d 297–98, the defendant
was charged with illegal possession of a firearm arising
from an incident in which he allegedly pointed a gun
at another individual. The police swabbed the firearm
found in the basement of the defendant’s apartment
building and submitted the swabs to the crime labora-
tory to be analyzed for DNA. Along with the swabs, the
police sent an evidence request listing the defendant
as the arrestee and providing, as the reason for the
request, ‘‘ ‘PERP HANDLED THE FIREARM.’ ’’ Id., 298.
Following his indictment, the defendant submitted to
a court-ordered buccal swab. Id., 299. The laboratory
generated a report listing the numerical DNA profiles
from the firearm and the buccal swab in a comparison
table, showing an identical match. Id.
The New York Court of Appeals concluded: ‘‘[T]he
laboratory reports as to the DNA profile generated from
the evidence submitted to the laboratory by the police
in a pending criminal case were testimonial. The DNA
profiles were generated in aid of a police investigation
of a particular defendant charged by an accusatory
instrument and created for the purpose of substantively
proving the guilt of a defendant in his pending criminal
action.’’ Id., 308. In addition, the court observed that
‘‘the primary purpose of the laboratory examination on
the gun swabs could not have been lost on the . . .
analysts’’ in light of the accompanying evidence request
indicating that the basis for the request was that the
firearm had been handled by the defendant. Id.
The New York Court of Appeals’ subsequent decision
in People v. Austin, supra, 30 N.Y.3d 98, is squarely
analogous to the present case. In that case, the crime
laboratory generated DNA profiles from blood recov-
ered from the scene of multiple burglaries. Id., 100. The
police uploaded one of the profiles into their database
and returned a ‘‘match’’ for the defendant. Id., 100–101.
The defendant was subsequently charged with the bur-
glaries. Id., 101. At trial, the prosecutor opted not to
call as a witness the analyst who prepared the profile
from the database. Instead, the prosecutor had the
defendant submit to a buccal swab, which yielded a
DNA profile determined to match the DNA from the
crime scene evidence. Id. At trial, the prosecution’s sole
forensic witness was a criminalist who testified that he
reviewed the DNA profiles prepared by the analysts
and determined that they matched. Id. The analysts who
generated the DNA profiles from the buccal swab and
the crime scene evidence did not testify. Id.
The New York Court of Appeals held that the admis-
sion of the criminalist’s testimony concerning the DNA
profile generated from the defendant’s postarrest buc-
cal swab ‘‘easily satisfies the primary purpose test.’’ Id.,
104. The court reasoned that, in establishing that the
defendant’s DNA matched the DNA from the crime
scene, the prosecution relied ‘‘solely on the evidence
of the DNA profile generated from [the] buccal swab,
which was developed during the course of a pending
criminal action and was created in order to prove [the
defendant’s] guilt at trial. . . .’’ (Citation omitted.) Id.
Therefore, the court explained, ‘‘the buccal swab was
obtained and the resulting profile was compared with
the DNA profile generated from the . . . burglaries,
with the primary (truly, the sole) purpose of proving
a particular fact in a criminal proceeding—that [the]
defendant . . . committed the crime [with] which he
was charged . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Id.
We also find instructive the decision of the Supreme
Judicial Court of Massachusetts in Commonwealth v.
McCowen, supra, 458 Mass. 461, which involves facts
nearly identical to those of the present case. In McCo-
wen, the defendant, who was a suspect in a rape and
murder investigation, submitted to a buccal swab,
which yielded a DNA profile that the police later deter-
mined matched the DNA derived from swabs taken
from the victim. Id., 465. At trial, the sole analyst called
to testify had developed the DNA profiles from the
samples taken from the victim and conducted the com-
parative analysis but had not been involved in the gener-
ation of the profile from the defendant’s buccal swab.
Id., 482–83. The analyst testified to her opinion that the
defendant was a contributor to the DNA found on the
victim, and illustrated her analysis with a chart that
made a side-by-side comparison of the allele numbers
generated from the victim and those from the defen-
dant’s buccal swab. Id., 483.
The Supreme Judicial Court concluded that ‘‘the
allele numbers derived from the testing of the known
samples by another analyst that were included in [the
testifying analyst’s] chart were testimonial hearsay,
because these were factual findings made by a nontesti-
fying witness for the purpose of investigating the mur-
der.’’ Id., 483; see also Young v. United States, supra,
63 A.3d 1047–48 (The court held that a DNA profile
generated from the defendant’s buccal swab, which was
taken after the defendant was identified as a suspect,
was ‘‘generated for the primary purpose of establishing
or proving a past fact relevant to later criminal prosecu-
tion, namely the identity of [the victim’s] assailant.
Under the basic ‘evidentiary purpose’ test, that is
enough to render the test results testimonial.’’).13
In light of the foregoing case law, we conclude that
the DNA profile was generated from the defendant’s
buccal swab for ‘‘the primary purpose of creating a
record for use at a later criminal trial.’’ (Internal quota-
tion marks omitted.) State v. Sinclair, supra, 332 Conn.
225. The police took the buccal swab after the defendant
was arrested and charged with various crimes in con-
nection with his participation in the murder. The state
obtained court authorization to conduct the buccal
swab by filing a motion in the defendant’s criminal case
representing that the buccal swab and resulting DNA
profile ‘‘will be of material aid in determining whether
the defendant committed the crime of felony murder.’’
The purpose of obtaining the defendant’s known DNA
profile was to compare it with DNA from the bandana
found at the crime scene, which Green indicated had
been worn by the person who shot and killed the victim.
The defendant’s DNA profile was, therefore, generated
in aid of an ongoing police investigation for the pri-
mary—indeed, the sole—purpose of proving a fact in
his criminal trial, namely, that his DNA was found on
the bandana worn by the shooter. Indeed, after Degnan
received the defendant’s DNA profile from the known
processing group and determined that it matched the
DNA from the bandana, thereby implicating the defen-
dant as the shooter, the state charged the defendant
with the additional crimes of manslaughter in the first
degree with a firearm and criminal possession of a pistol
or revolver.
We further conclude that the analyst or analysts of
the known processing group who processed the defen-
dant’s buccal swab reasonably could have expected
that the resulting DNA profile would later be used for
prosecutorial purposes. See Ohio v. Clark, U.S.
, 135 S. Ct. 2173, 2181–82, 192 L. Ed. 2d 306 (2015)
(analyzing primary purpose of individuals who elicited
statements, as well as primary purpose of declarant,
in determining whether statements were testimonial);
State v. Slater, supra, 285 Conn. 172 (analysis of testi-
monial nature of statement ‘‘focuse[s] on the reason-
able expectation of the declarant that, under the cir-
cumstances, his or her words later could be used for
prosecutorial purposes’’). The known processing group
is a component of the Division of Scientific Services,
which is required by statute to assist law enforcement
in ongoing investigations. General Statutes § 29-7b; see
also Bullcoming v. New Mexico, supra, 564 U.S. 665
(relying on laboratory’s legal obligation to assist law
enforcement in concluding that its report was testi-
monial). More directly, the envelope containing the buc-
cal swab that Murray submitted to the laboratory was
labeled with the defendant’s name and fingerprint;
listed ‘‘West Haven P.D.’’ as the submitting agency,
listed the MacDougall Walker Correctional Institution
as the defendant’s address, and displayed a notation
reading ‘‘Incident: Homicide.’’ The investigatory and,
thus, evidentiary purpose of the buccal swab analysis
would therefore have been readily apparent to the ana-
lyst who conducted it.
Additionally, Degnan testified that the known pro-
cessing group generates DNA profiles for all known
samples submitted to the laboratory and then provides
those profiles to other analysts who then make the
comparisons. In light of this standard practice, it is safe
to assume that the analyst who processed the defen-
dant’s buccal swab was aware of the likelihood that
the resulting DNA profile would be used as part of a
comparison with other evidence and, therefore, poten-
tially utilized in a criminal proceeding. Put simply, the
police sought the DNA profile as part of an ongoing
criminal investigation, and we do not believe that that
fact would have been lost on the known processing
group.
Finally, a word about formality. We observed in State
v. Sinclair, supra, 332 Conn. 225, that ‘‘[t]he one thread
of Williams that is consistent with . . . earlier prece-
dent is that . . . the formality attendant to the making
of the statement must be considered.’’ In the present
case, the precise level of formality surrounding the
known processing group’s submission of the profile to
Degnan is not entirely clear from the record. Under the
circumstances, however, we do not believe that this
consideration compels a different result. We note that
the formality attending a particular statement, although
relevant in the primary purpose analysis, is not disposi-
tive. See Bullcoming v. New Mexico, supra, 564 U.S.
671 (Sotomayor, J., concurring in part) (‘‘[a]lthough
[f]ormality is not the sole touchstone of our primary
purpose inquiry, a statement’s formality or informality
can shed light on whether a particular statement has a
primary purpose of use at trial’’ [internal quotation
marks omitted]); Michigan v. Bryant, 562 U.S. 344, 366,
131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) (‘‘although
formality suggests the absence of an emergency and
therefore an increased likelihood that the purpose of
the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution . . .
informality does not necessarily indicate the presence
of an emergency or the lack of testimonial intent’’ [cita-
tion omitted; internal quotation marks omitted]).
Indeed, strict adherence to formality requirements
may be especially problematic in the context of scien-
tific evidence, as this requirement ‘‘can be easily sub-
verted by . . . simple omission in the format of the
documents, with a design to facilitate their use as evi-
dence in a criminal trial.’’ People v. John, supra, 27
N.Y.3d 312; see also Davis v. Washington, supra, 547
U.S. 826 (confrontation clause cannot ‘‘readily be
evaded’’ by parties’ keeping written product of interro-
gation informal ‘‘instead of having the declarant sign a
deposition’’). At any rate, the buccal swab and DNA
profile were obtained pursuant to a postarrest court
order. The known processing group provided the DNA
profile to Degnan along with ‘‘paperwork’’ indicating
that the sample was analyzed according to accepted
laboratory procedures. These facts are suggestive of a
certain level of formality that, together with the circum-
stances set forth previously in this opinion, are suffi-
cient to render the statement testimonial.
The state, relying on the plurality opinion in Williams,
contends that the defendant’s known DNA profile was
not testimonial because it did not directly accuse the
defendant of any criminal conduct but became accusa-
tory only when compared with the DNA found on the
bandana. In Williams, the plurality concluded that the
DNA profile generated from vaginal swabs of the victim
was not to accuse the defendant or create evidence at
trial because ‘‘no one at [the laboratory] could have
possibly known that the profile that it produced would
turn out to inculpate [the defendant]—or for that mat-
ter, anyone else whose DNA profile was in a law
enforcement database.’’ Williams v. Illinois, supra, 567
U.S. 84–85.
We disagree. This line of reasoning was foreclosed
by Melendez-Diaz, which, as previously explained,
remains controlling in the present case due to the lack of
any definitive holding in Williams. See State v. Sinclair,
supra, 332 Conn. 225. In Melendez-Diaz, the state
asserted that the certificates of analysis stating that the
seized substances were narcotics were not subject to
confrontation because the analysts who prepared them
were not ‘‘ ‘accusatory’ ’’ witnesses. Melendez-Diaz v.
Massachusetts, supra, 557 U.S. 313. The state argued
that the certificates did not ‘‘directly accuse [the defen-
dant] of wrongdoing’’ but were ‘‘inculpatory only when
taken together with other evidence . . . .’’ Id. The
United States Supreme Court rejected this argument,
reasoning that the analysts ‘‘certainly provided testi-
mony against [the defendant], proving one fact neces-
sary for his conviction—that the substance he pos-
sessed was cocaine.’’ (Emphasis in original.) Id. The
court explained that the text of the confrontation clause
‘‘contemplates two classes of witnesses—those against
the defendant and those in his favor. The prosecution
must produce the former; the defendant may call the
latter. [T]here is not a third category of witnesses, help-
ful to the prosecution, but somehow immune from con-
frontation.’’ (Emphasis in original; footnote omitted.)
Id., 313–14.
Indeed, citing this portion of Melendez-Diaz, five jus-
tices in Williams rejected the plurality’s rationale and
concluded that DNA analyses may be testimonial
regardless of whether they are inherently inculpatory.
Williams v. Illinois, supra, 567 U.S. 116 (Thomas, J.,
concurring); id., 135–36 and n.5 (Kagan, J., dissenting);
see also Washington v. Griffin, 876 F.3d 395, 407 n.10
(2d Cir. 2017) (‘‘[The lower court] erred insofar as it
held that DNA profiles, as a categorical matter, are
[nontestimonial] because standing alone, [they] shed
no light on the issue of the defendant’s guilt. As pre-
viously noted . . . five [j]ustices in Williams . . .
agreed that the introduction of DNA profiles could,
under proper circumstances, run afoul of the [c]onfron-
tation [c]lause.’’ [Citation omitted; internal quotation
marks omitted.]), cert. denied, U.S. , 138 S. Ct.
2578, 201 L. Ed. 2d 299 (2018); United States v. Duron-
Caldera, supra, 737 F.3d 994–95 (declining to adopt
inherently inculpatory rationale because it was rejected
by five justices as well as Melendez-Diaz). Accordingly,
statements are not rendered nontestimonial merely
because the content of the statements does not directly
accuse the defendant of criminal wrongdoing.
The state further contends, again relying on the plu-
rality opinion in Williams, that the DNA profile is not
testimonial because ‘‘numerous technicians’’ worked
on the defendant’s known DNA profile and that, ‘‘[w]hen
the work of a lab is divided up in such a way, it is likely
that the sole purpose of each technician is simply to
perform his or her task in accordance with accepted
procedures.’’ Williams v. Illinois, supra, 567 U.S. 85.
The plurality opinion in Williams observed that, under
such circumstances, there is no ‘‘prospect of fabrication
and no incentive to produce anything other than a scien-
tifically sound and reliable profile.’’ (Internal quotation
marks omitted.) Id., 85.
We are not persuaded. As a factual matter, nothing
in the record indicates whether multiple analysts from
the known processing group analyzed the buccal swab,
as opposed to a single analyst. This aspect of Williams
is, therefore, not implicated in the present case. More-
over, as a matter of law, not only are we not bound by
the result in Williams; see State v. Sinclair, supra, 332
Conn. 225; we disagree with the underlying proposition
that the right to confrontation categorically does not
apply to forensic evidence whenever there is no incen-
tive to fabricate or falsify evidence.
To be sure, ‘‘[c]onfrontation is designed to weed out
not only the fraudulent analyst, but the incompetent
one as well.’’ Melendez-Diaz v. Massachusetts, supra,
557 U.S. 319. ‘‘[C]onfrontation protects against a wide
range of witness reliability concerns beyond personal
bias, such as perception, memory, narration, and sincer-
ity.’’ United States v. Duron-Caldera, supra, 737 F.3d
996; see Melendez-Diaz v. Massachusetts, supra, 320
(‘‘an analyst’s lack of proper training or deficiency in
judgment may be disclosed in cross-examination’’); see
also Williams v. Illinois, supra, 567 U.S. 135–36 (Kagan,
J., dissenting) (‘‘[S]urely the typical problem with labo-
ratory analyses—and the typical focus of cross-exami-
nation—has to do with careless or incompetent work,
rather than with personal vendettas. And as to that
predominant concern, it makes not a whit of difference
whether, at the time of the laboratory test, the police
already have a suspect.’’). The absence of an incentive
to fabricate does not foreclose the potential for honest
mistakes, which is independently sufficient to trigger
the right to confrontation.
Accordingly, we conclude that the evidence of the
DNA profile generated by the known processing group
from the defendant’s postarrest buccal swab was testi-
monial hearsay.
III
Finally, the state contends that the defendant’s right
to confrontation was satisfied in this case because Deg-
nan, the laboratory supervisor who was familiar with
the standard DNA testing procedures, testified and was
subject to cross-examination. We disagree.
The state’s argument that Degnan was a sufficient
substitute witness is incompatible with Bullcoming v.
New Mexico, supra, 564 U.S. 647. In that case, the ana-
lyst who conducted the defendant’s blood test and pre-
pared the lab report certifying to his blood alcohol
content did not testify at trial. Instead, the prosecution
called a different analyst who did not conduct or
observe the test but ‘‘ ‘qualified as an expert witness’ ’’
with respect to the device used in the test and the
laboratory’s testing procedures. Id., 661. Concluding
that such surrogate testimony was insufficient to satisfy
the confrontation clause, the court reasoned that,
despite the analyst’s qualifications, ‘‘surrogate testi-
mony of the kind [the analyst] was equipped to give
could not convey what [the nontestifying analyst] knew
or observed about the events his certification con-
cerned, i.e., the particular test and testing process he
employed. Nor could such surrogate testimony expose
any lapses or lies on the certifying analyst’s part.’’ (Foot-
note omitted.) Id., 661–62. The court emphasized that
the confrontation clause ‘‘does not tolerate dispensing
with confrontation simply because the court believes
that questioning one witness about another’s testimo-
nial statements provides a fair enough opportunity for
cross-examination.’’ Id., 662.
Degnan, although familiar with the devices used to
process DNA and the laboratory’s standard testing pro-
cedures, did not conduct the analysis of the defendant’s
buccal swab or observe the analysis being conducted.
Accordingly, although defense counsel cross-examined
Degnan about the methods she used when analyzing
the bandana and comparing the profiles, he could not
cross-examine her about the analysis of the buccal swab
or the methods employed by the known processing
group in generating that profile. See People v. Austin,
supra, 30 N.Y.3d 104–105 (‘‘in order to satisfy the [c]on-
frontation [c]lause, [the] defendant was entitled to
cross-examine the analyst who either performed, wit-
nessed or supervised the generation of the critical
numerical DNA profile or who used his or her indepen-
dent analysis on the raw data to arrive at his or her
own conclusions’’); see also Young v. United States,
supra, 63 A.3d 1048 (‘‘without evidence that [the testi-
fying analyst] performed or observed the generation of
the DNA profiles . . . herself, her supervisory role and
independent evaluation of her subordinates’ work prod-
uct are not enough to satisfy the [c]onfrontation [c]lause
because they do not alter the fact that she relayed
testimonial hearsay’’); D. Kaye et al., The New Wigmore:
A Treatise on Evidence (Cum. Supp. 2014) § 4.12.4, p.
50 (‘‘Permitting a supervisor [to testify] is a superficially
attractive approach, but it is not supported by careful
scrutiny unless . . . the supervisor observed the ana-
lyst conducting the test. If not, the supervisor has no
greater connection to this specific test than does any
other qualified laboratory employee.’’ [Emphasis in orig-
inal.]).
The state relies on a line of cases from other jurisdic-
tions generally holding that the confrontation clause
can be satisfied through the testimony of a supervisory
analyst who reviewed the data prepared by the nontesti-
fying analyst and formed his or her own opinion con-
cerning that analyst’s conclusions. See, e.g., Common-
wealth v. Yohe, 621 Pa. 527, 561, 79 A.3d 520 (2013)
(testifying expert’s analysis ‘‘did not simply parrot
another analyst . . . rather, he was involved with
reviewing all of the raw testing data, evaluating the
results, measuring them against lab protocols to deter-
mine if the results supported each other, and writing
and signing the report’’ [citation omitted]), cert. denied,
572 U.S. 1135, 134 S. Ct. 2662, 189 L. Ed. 2d 209 (2014);
State v. Michaels, 219 N.J. 1, 6, 95 A.3d 648 (confronta-
tion clause was satisfied by testimony of supervisory
analyst who had ‘‘reviewed the [machine generated]
data from the testing, had determined that the results
demonstrated that [the] defendant had certain drugs
present in her system, and had certified the results in
a report’’), U.S. , 135 S. Ct. 761, 190 L. Ed. 2d
635 (2014); State v. Griep, supra, 361 Wis. 2d 683 (‘‘when
a [nontestifying] analyst documents the original tests
with sufficient detail for another expert to understand,
interpret, and evaluate the results, that expert’s testi-
mony does not violate the [c]onfrontation [c]lause’’
[internal quotation marks omitted]).
In the present case, the record provides no basis for
the claim that Degnan was provided with the raw data
prepared by the known processing group and came to
her own conclusion concerning the defendant’s DNA
profile. Degnan did testify that the known processing
group provided ‘‘paperwork’’ to her so that she ‘‘could
see that all of the checkboxes were check[ed], that they
did it properly, followed standard operating proce-
dures.’’ This testimony merely establishes, however,
that the known processing group represented to Degnan
that they followed proper procedures during testing.
As to the numerical profile produced from that testing,
there is no evidence Degnan did anything at trial other
than simply relay to the jury the profile that had been
provided to her. Degnan was, therefore, not a sufficient
substitute witness to satisfy the defendant’s right to con-
frontation.
We observe that this opinion does not conclude that
all analysts who participate in the process of generating
a DNA profile necessarily must testify. We simply con-
clude that, where the generation of a DNA profile is
testimonial, ‘‘at least one analyst with the requisite per-
sonal knowledge must testify.’’ People v. John, supra,
27 N.Y.3d 313. In this regard, we agree with the New
York Court of Appeals that ‘‘the analysts involved in the
preliminary testing stages, specifically, the extraction,
quantitation or amplification stages,’’ are not necessary
witnesses. Id. Rather, ‘‘it is the generated numerical
identifiers and the calling of the alleles at the final
stage of the DNA typing that effectively accuses [the]
defendant of his role in the crime charged.’’ Id. Accord-
ingly, to satisfy the confrontation clause, the state need
only call as a witness an analyst with personal knowl-
edge concerning the accuracy of the numerical DNA
profile generated from the preliminary stages of testing.
Because the state did not do so in the present case,
we conclude that the defendant has established a viola-
tion of his sixth amendment right to confront the wit-
nesses against him. As the state has not asserted that
this error is harmless beyond a reasonable doubt, the
defendant is entitled to a new trial under Golding.
The judgment of the Appellate Court is reversed inso-
far as that court upheld the defendant’s conviction as
to the charges of felony murder, attempt to commit
robbery in the first degree, and criminal possession of
a pistol or revolver, and the case is remanded to that
court with direction to reverse the trial court’s judgment
with respect to those charges and to remand the case
to the trial court for a new trial.
In this opinion the other justices concurred.
1
‘‘The Toyota was [determined] to belong to Ronja Daniels, Daquane
Adams’ girlfriend. Daniels testified that earlier that night, Daquane Adams
had dropped her off at work and borrowed her car.’’ State v. Walker, 180
Conn. App. 291, 296 n.1, 183 A.3d 1 (2018).
2
A buccal swab involves rubbing a Q-tip like instrument along the inside
of the cheek to collect epithelial cells.
3
At trial, Murray testified that she followed the standard procedures when
taking the buccal swabs from the defendant, Daquane Adams, and
Anthony Adams.
4
‘‘An allele is defined as one or two or more alternative forms of a gene.’’
(Internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 880 n.7,
776 A.2d 1091 (2001).
5
References to Anthony Adams and Daquane Adams were redacted from
the report.
6
Degnan also entered the numerical DNA profile of the major contributor
to the DNA found on the bandana into the Connecticut and national DNA
databases, which returned a ‘‘hit’’ on the defendant because the defendant’s
DNA had previously been entered into the database as a result of a prior
felony conviction. Evidence of this match, however, was not offered into
evidence at trial.
7
The defendant was acquitted of the charge of conspiracy to commit
robbery.
8
The Appellate Court also concluded that ‘‘the defendant’s conviction of
felony murder and manslaughter violate[d] his constitutional protections
against double jeopardy’’ and remanded the case with direction to vacate
the defendant’s conviction with respect to the latter. State v. Walker, supra,
180 Conn. App. 330–31. This aspect of the Appellate Court’s decision, how-
ever, is not at issue in the present appeal.
9
Specifically, we granted the defendant’s petition for certification to
appeal, limited to the following issue: ‘‘Did the Appellate Court properly
determine that the defendant’s sixth amendment right to confrontation was
not violated by testimony from a lab analyst regarding a known DNA profile
generated from a swab processed by another analyst who did not testify at
trial?’’ State v. Walker, 328 Conn. 934, 183 A.3d 634 (2018).
10
Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
11
Although Degnan testified that the known processing group provided
her with ‘‘paperwork’’ indicating that the group had ‘‘followed standard
operating procedures,’’ there is no evidence that Degnan independently
verified the accuracy of the profile beyond simply relying on the group’s
representation that they adhered to standard protocol. See part III of this
opinion.
12
As an independent basis for concluding that the admission of the DNA
evidence did not violate the confrontation clause, the plurality reasoned
that, to the extent the substance of the outside laboratory’s report was
admitted into evidence—the report itself was not offered as an exhibit—it
was offered not for its truth but, rather, to explain the assumptions upon
which the testifying analyst based her expert opinion that the DNA profile
from the vaginal swabs matched the defendant’s DNA. Williams v. Illinois,
supra, 567 U.S. 57–58. The plurality concluded that the out-of-court state-
ments were not hearsay and, therefore, that they fell outside the scope of
the confrontation clause. Id., 58. Five justices, however, disagreed with this
reasoning. Id., 104–109 (Thomas, J., concurring in judgment); id., 125–32
(Kagan, J., dissenting). The state concedes that this aspect of Williams is
not relevant in the present case because the out-of-court statements made
by the known processing group concerning the defendant’s known DNA
profile were offered for their truth and not merely to explain the basis for
Degnan’s opinion that the defendant’s DNA matched the DNA found on
the bandana.
13
The state relies on State v. Ortiz, 238 Ariz. 329, 360 P.3d 125 (App.
2015), State v. Lui, 179 Wash. 2d 457, 315 P.3d 493, cert. denied, 573 U.S. 933,
134 S. Ct. 2842, 189 L. Ed. 2d 810 (2014), and State v. Deadwiller, 350 Wis.
2d 138, 834 N.W.2d 362 (2013), in support of its claim that the defendant’s
DNA profile was not testimonial. In each of those cases, however, the courts
decided the testimonial question by applying the three Williams rationales
to the facts of the case to determine how five justices would have ruled.
See State v. Ortiz, supra, 341; State v. Lui, supra, 478–79; State v. Deadwiller,
supra, 162–63. As previously explained in this opinion, however, we decline
to apply Williams in this manner, as that case resulted in no controlling
holding. See State v. Sinclair, supra, 332 Conn. 225. Instead, we ‘‘rely on
Supreme Court precedent before Williams to the effect that a statement
triggers the protections of the [c]onfrontation [c]lause when it is made with
the primary purpose of creating a record for use at a later criminal trial.’’
(Internal quotation marks omitted.) Id. Accordingly, given our decision in
Sinclair, we do not find the cases cited by the state persuasive.