Norton v. State , 217 Md. App. 388 ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2382
September Term, 2008
HAROLD ALBERT NORTON, JR.
v.
STATE OF MARYLAND
Hotten,
Berger,
Arthur,
JJ.
Opinion by Berger, J.
Filed: June 24, 2014
Appellant, Harold Albert Norton, Jr. (“Norton”), was convicted in the Circuit Court
for Baltimore County of attempted first degree murder, witness intimidation, assault, three
counts of armed robbery, and four counts of use of a handgun. On appeal before this Court,
we reversed Norton’s convictions and remanded for a new trial, holding that Norton had been
denied his Sixth Amendment right of confrontation when a DNA analyst was permitted to
testify regarding the work of another DNA analyst. See Harold Albert Norton, Jr. v. State,
No. 2382, Sept. Term 2008 (filed Nov. 21, 2011) (unreported opinion) (“Norton I”). Our
original opinion was based upon the holding of the Court of Appeals in Derr v. State, 411
Md. 740 (2009) (“Derr I”).
Following our opinion in Norton I, Derr I was vacated by the United States Supreme
Court and “remanded to the Court of Appeals of Maryland for further consideration in light
of Williams v. Illinois, 567 U.S.___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).” Maryland v.
Derr, 133 S. Ct. 63 (2012). The Court of Appeals subsequently issued an opinion in Derr v.
State, 434 Md. 88 (2013) (“Derr II”). Thereafter, on October 21, 2013, the Court of Appeals
vacated our opinion in Norton I and remanded this case to this Court “for further
reconsideration in light of [Derr II], 434 Md. 88, 73 A.3d 254 (2013) and Williams v. Illinois,
132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).” State v. Norton, 435 Md. 266 (2013).
On remand, we address the following issue:
Whether Norton’s right to confrontation was violated when the
circuit court permitted one DNA analyst to testify regarding the
work of another DNA analyst and admitted the report of the
non-testifying DNA analyst.
For the reasons that follow, we shall answer in the affirmative and reverse the
judgment of the circuit court.1
FACTS AND PROCEEDINGS
As discussed supra, this is the second time this case has been before this Court. We
set forth the factual and procedural background in Norton I as follows:
On August 21, 2006, [Norton] was indicted on armed
robbery and related charges for robbing three women at Isha’s
Hair Salon located in Owings Mills. Evelyn Smith was a
customer at the salon that day, and Mah Toure and Hassanatou
Balde were employees. The evidence adduced by the State at
trial showed that the robber wore a mask and was armed with a
handgun. He took the women’s money, purses and cellular
telephones and placed the items in a black trashbag. He then
duct-taped the women’s hands together, ordered them to lie on
the floor and left the salon.
[Norton] was implicated in the robbery by his co-worker,
George Bennett, who contacted the police to tell them that he
had located some of the items stolen during the robbery.
Bennett delivered a black bag to the police that he had recovered
from a storm drain down the street from his and [Norton’s] place
of employment, which contained the stolen purses, cellular
telephones, duct tape, and a black mask. A DNA profile created
1
In addition to the confrontation argument, Norton asserts that the circuit court erred
by granting the State’s motion for joinder of charges. We shall not reach the joinder issue
because of unusual circumstances which occurred below due to delay of the appointment of
counsel. Norton argued before the circuit court that joinder was prejudicial because, inter
alia, Norton had two attorneys -- a privately-retained attorney for the armed robbery case,
and a public defender for the attempted murder case -- with different trial strategies and
different witness lists. On remand, such circumstances may not present themselves if Norton
is represented by a single attorney for both cases. The proceedings will be in a different
posture and Norton’s newly appointed counsel may again present an argument that joinder
would be prejudicial.
2
from saliva taken from the black mask matched [Norton’s] DNA
profile. [Norton] made threatening telephone calls to Bennett for
reporting him to police. A three-day jury trial on the robbery
charges commenced October 9, 2007, and resulted in a hung
jury.
In the meantime, on July 9, 2007, Bennett sustained
serious physical injuries after he was shot in the chest while
working. The unidentified shooter, using a fake name, had
called Bennett prior to the shooting and falsely advised that
Bennett’s boss would be performing an on-site inspection that
evening. The shooter then arrived at Bennett’s worksite,
knocked on the glass-front door and shot Bennett through the
glass when he approached the door. On October 22, 2007,
[Norton] was indicted on attempted murder charges for shooting
Bennett.
On October 29, 2007, [Norton] was arraigned on the
attempted murder charges. At that time, he was unrepresented
by counsel in that case. On December 10, 2007, defense counsel
from his first trial on the armed robbery charges filed a motion
to strike his appearance in the robbery case.
On December 12, 2007, [Norton] was again brought
before the court. Noting that defense counsel’s motion to strike
his appearance had not been ruled upon, the prosecutor asked
the court to arraign [Norton] again and the court did so on both
cases. When asked by the court if the cases were consolidated,
the prosecutor stated, “We have asked for them to be joined
together.” On January 15, 2008, an assistant public defender
entered her appearance on behalf of [Norton] in the attempted
murder case.
On January 24, 2008, the State filed a motion for joinder
of the offenses. It argued that the evidence in both cases was
mutually admissible under its theory that [Norton] shot Bennett
just before the armed robbery trial because Bennett was a key
witness against him. It opined, therefore, that the armed robbery
case was motive for the shooting and that the shooting was
evidence of [Norton’s] consciousness of guilt in the armed
3
robbery. It added that joinder was in the interest of judicial
economy and that [Norton] would not be unfairly prejudiced by
the joinder.
Norton I, supra, Slip Op. at 1-3.
After a hearing, the circuit court granted the State’s motion for joinder and the cases
were joined for trial. The State sought to introduce DNA evidence at trial through the
testimony of Michael Cariola (“Cariola”), vice-president of forensic operations and technical
leader at Bode Technology Group. The specific DNA evidence the State sought to introduce
resulted in a match between Norton’s DNA and the black ski mask recovered from a storm
drain by Bennett.
Defense counsel moved in limine to exclude Cariola’s testimony on three independent
bases. First, defense counsel argued that Cariola had not been disclosed as an expert witness.
Second, defense counsel argued that the State had not disclosed that Cariola would testify
“on behalf of the scientist who tested Mr. Norton’s DNA and compared it to the recovered
evidence.”2 Third, defense counsel objected on the basis that permitting Cariola to testify
would violate Norton’s confrontation rights because Norton would be denied the opportunity
to cross-examine Rachel Cline (“Cline”)3 , the DNA analyst who actually conducted the
DNA testing and prepared the report (“the Cline report”). Defense counsel also argued that
2
Norton does not raise any discovery-related issues regarding Cariola’s testimony on
appeal.
3
In the briefs and transcript, Ms. Cline’s last name is spelled, “Kline.” On the report
she prepared, her last name is spelled, “Cline.” We shall use the spelling “Cline.”
4
Cariola was not disclosed as an expert witness regarding the DNA testing he performed that
excluded Norton’s nephew Dale Gholston (“Gholston”) as a possible contributor to the DNA
sample taken from the mask.
The State countered that, per an agreement with defense counsel, Cariola had testified
in lieu of Cline at the first robbery trial (which resulted in a hung jury), and therefore, defense
counsel was aware that Cariola was the State’s expert witness for the DNA evidence. The
State explained that Cline had left the employment of Bode prior to the first robbery trial and
that the State had provided defense counsel with all of the documents related to Cariola
testifying as an expert witness. The State did not assert that Cline was unavailable, but did
explain that Cline had begun new employment elsewhere. The State argued that “[i]t is
entirely appropriate . . . to have an expert testify about the work of other experts.”
The circuit court ruled that it would permit Cariola to testify, explaining as follows:
It seems to me that the defense has for over a year known
that [Cariola] was going to be the witness to testify as to Mr.
Norton’s DNA on the ski mask. In fact, [Cariola] testified to
that over a year ago. Rachel Cline has never testified to that.
The only witness the State has ever called to testify to that,
either in the previous trial or I assume in this trial, is [Cariola]
so there certainly can’t be a violation of discovery when, in fact,
the State is calling the same witness they called a year ago
without objection. Now, as to Mr. Gholston, you’re objecting
to [Cariola] testifying to the testing of the DNA of Mr.
Gholston. I assume that what [Cariola] is going to testify to, and
please correct me if I’m wrong, is that the DNA on the ski mask
is not Mr. Gholston, it’s Mr. Norton.
5
The State answered affirmatively and advised the circuit court that Cariola would not offer
any further testimony regarding Gholston.
We set forth the following in Norton I, supra:
Immediately following the court’s ruling, the forensic
biologist who recovered the saliva sample from the mask,
testified; the testimony spanned six transcript pages. The State
then called Cariola as a witness. When the State offered Cariola
as an expert in forensic DNA analysis, the court asked defense
counsel if he had any questions. He responded, “No questions,
your Honor. We’d just note what the discussion was.”
Cariola then testified as to the procedures employed at
[Bode] for conducting DNA testing and the procedures
performed by Cline specifically related to testing appellant’s
DNA against the sample from the mask. Cariola testified that
[Norton’s] DNA profile matched the DNA profile obtained from
the mask. He then opined that [Norton] was the major source of
the DNA. He also testified that Gholston was excluded as a
possible contributor. The reports related to both DNA tests were
admitted into evidence. While defense counsel advised that he
had no objection to the admission of the report related to
Gholston, he was silent when the State offered the report related
to [Norton].
On cross-examination, Cariola advised that he had
[reviewed Cline’s report], but that he was not the analyst with
regard to those samples[;] the analyst was Cline. Cariola said
that Cline was employed in Rockville with the armed forces
DNA investigation laboratory. He stated that he reviewed all of
Cline’s materials and adopted her report. Cariola was, however,
the analyst who conducted the DNA testing related to Gholston.
Norton I, supra, Slip Op. at 9-10.
Following a five-day jury trial, Norton was convicted of one count of attempted first-
degree murder, one count of witness intimidation, one count of first-degree assault, three
6
counts of armed robbery, and four counts of use of a handgun in the commission of a crime
of violence. Norton was sentenced to a term of fifty years’ imprisonment for attempted
murder, five years’ imprisonment for witness intimidation, twenty years’ imprisonment for
the handgun conviction related to the attempted murder, fifteen years’ imprisonment for each
of the armed robbery convictions, and fifteen years’ concurrent for one of the handgun
convictions related to the armed robbery. All sentences were run concurrently. The
remaining convictions were merged for sentencing purposes.
On appeal to this Court, Norton argued that the circuit court erred by granting the
State’s motion for joinder. Norton further argued that he was deprived of his right to
confrontation under the Sixth Amendment of the United States Constitution because one
DNA analyst was permitted to testify regarding the work of another DNA analyst. In an
unreported opinion, we reversed Norton’s convictions and remanded for a new trial, holding
that Norton had been denied his Sixth Amendment right of confrontation. See Norton I,
supra, Slip Op. at 15. We did not reach the issue of whether joinder was prejudicial “because
of the unusual circumstances occasioned by the delay of the appointment of counsel in the
attempted murder charges and the fact that the proceedings [on remand] will be in a different
posture from that in the original trial.”
Subsequently, the State filed a petition for writ of certiorari. Prior to the Court of
Appeals taking action on the State’s petition for writ of certiorari, Derr I, supra -- the opinion
upon which our opinion in Norton I was based -- was vacated by the United States Supreme
7
Court and “remanded to the Court of Appeals of Maryland for further consideration in light
of Williams v. Illinois, 567 U.S.___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).” Maryland v.
Derr, 133 S. Ct. 63 (2012). The Court of Appeals subsequently issued an opinion in Derr II,
supra, 434 Md. 88. Thereafter, on October 21, 2013, the Court of Appeals granted certiorari
in Norton I, vacated our original opinion, and remanded to this Court “for further
reconsideration in light of [Derr II], 434 Md. 88, 73 A.3d 254 (2013) and Williams v. Illinois,
132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).”
DISCUSSION
I.
First, we address whether the issue regarding Cariola’s testimony is preserved for our
review. The State contends that this issue is not preserved for our review because defense
counsel failed to make a proper contemporaneous objection to Cariola’s testimony or
admission of the Cline report into evidence. We reject the State’s preservation argument,
adopting the same analysis we set forth in Norton I, supra, in which we explained as follows:
Rule 4-323(a) provides that “[a]n objection to the admission of
evidence shall be made at the time the evidence is offered or as
soon as thereafter as the grounds for the objection become
apparent. Otherwise, the objection is waived.” Consequently,
with some exceptions, “‘when a motion in limine to exclude
evidence is denied, the issue of the admissibility of the evidence
that was the subject of the motion is not preserved for appellate
review unless a contemporaneous objection is made at the time
the evidence is later introduced at trial.’” Clemons v. State, 392
Md. 339, 361 (2006) (quoting Klauenberg v. State, 355 Md.
528, 539-40 (1999)). However, when a trial court had denied a
motion in limine to exclude evidence, a contemporaneous
8
objection need not be made when “requiring [the defendant] to
make ‘yet another objection only a short time after the court’s
ruling to admit the evidence would be to exalt form over
substance.’” Id. at 362 (quoting Watson v. State, 311 Md. 370,
372 n.1 (1988)).
Here, defense counsel moved in limine to exclude Cariola
as an expert witness just prior to the very succinct testimony of
the forensic biologist. Cariola was called as the State’s next
witness. When the State offered Cariola as an expert witness,
defense counsel advised that, although he did not have voir dire
questions, “We’d just note what the discussion was.” Clearly,
in so stating, defense counsel was objecting to Cariola’s
testimony on the grounds raised moments before during the
motion in limine. “In light of the close temporal proximity
between the trial court’s ruling on the motion in limine and
[Cariola’s[ testimony, we will resolve the ambiguity in favor of
[Norton] and consider the issue p[re]served for review.” See
Washington v. State, 191 Md. App. 48, 90, cert. denied, 415 Md.
43 (2010). In addition, with regard to [Norton’s] failure to
object when the DNA report was offered into evidence, given
the extensive conversation of the issue that occurred during the
motion in limine, and the court’s clear ruling denying the motion
just moments before, “a subsequent objection would [have been]
futile.” See In re Emileigh F., 353 Md. 30, 38 (1999).
Norton I, supra, Slip Op. at 10-12. Accordingly, we conclude that the issue is preserved for
our review and we shall turn to the merits of Norton’s argument.
II.
A criminal defendant in a Maryland court possesses a right of confrontation both
under the Sixth Amendment to the United States Constitution 4 and under Article 21 of the
4
The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . [and]
to examine the witnesses against him on oath[.]” U.S. Const. amend. VI. “The Sixth
9
Maryland Declaration of Rights.5 The confrontation rights under Article 21 and the Sixth
Amendment have, in past cases, been analyzed “in pari materia, or as generally providing
the same protection.” Cooper, supra, 434 Md. at 232.
A brief discussion of Confrontation Clause jurisprudence is helpful to provide a
framework and a context for our analysis. Prior to the United State Supreme Court’s opinion
in Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court “took the
view that the Confrontation Clause did not bar the admission of an out-of-court statement
that fell within a firmly rooted exception to the hearsay rule.” Williams, supra, 567 U.S.___,
132 S. Ct. at 2232 (citing Ohio v. Roberts, 448 U.S. 56 (1980) ). In Crawford, however, the
United States Supreme Court held that “[t]estimonial statements of witnesses absent from
trial [can be] admitted only where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine.” Id. (quoting Crawford, supra, 541 U.S. at 59).
“Since it was decided in 2004, [Maryland courts have] followed the [Crawford] framework
. . . to analyze whether the Confrontation Clause has been violated.” Cooper, supra, 434 Md.
at 233. “Under Crawford, and its progeny, the right of confrontation is implicated only when
two conditions are met: the challenged out-of-court statement or evidence must be presented
Amendment right to confront witnesses is binding on Maryland through the Fourteenth
Amendment.” Cooper v. State, 434 Md. 209, 233 n. 11 (2013) (citing Cox v. State, 421 Md.
630, 642 (2011)).
5
Article 21 of the Maryland Declaration of Rights provides, in relevant part, that “[i]n
all criminal prosecutions, every man hath a right . . . to be confronted with the witnesses
against him . . . [and] to examine the witnesses for and against him on oath[.]”
10
for its truth and the challenged out-of-court statement or evidence must be ‘testimonial.’”
Id. (citing Derr II, supra, 424 Md. at 106-07; Cox, supra, 421 Md. at 643; Michigan v.
Bryant, 562 U.S. ___, 131 S. Ct. 1143 (2011); Crawford, 541 U.S. at 59-60 n.9.).
Following its opinion in Crawford, the United States Supreme Court addressed the
issue of scientific reports in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and
Bullcoming v. New Mexico, 564 U.S. at ___, 131 S. Ct. 2705 (2011). In Melendez-Diaz, the
Supreme Court addressed whether “certificates of analysis” from a state forensic laboratory,
which indicated that a particular substance was found to contain cocaine, were testimonial.
557 U.S. at 309-11. The Supreme Court held that the admission of the certificates, which
were executed under oath before a notary, violated the Confrontation Clause. Id. at 311.
In Bullcoming, supra, the Supreme Court similarly held that a report certifying that
a sample of the defendant’s blood had an alcohol concentration of 0.21 grams per hundred
millimeters was testimonial. 564 U.S. at ___, 131 S. Ct. at 2723. Rather than calling the
analyst who performed the testing, the prosecution had called a different analyst “who was
familiar with the laboratory's testing procedures, but had neither participated in nor observed
the test on [the defendant’s] blood sample.” Id. at 2709. The Supreme Court held that the
“surrogate testimony . . . does not meet the constitutional requirement,” explaining that “[t]he
accused's right is to be confronted with the analyst who made the certification, unless that
analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine
that particular scientist.” Id. at 2710.
11
Not all forensic test results, however, have been held by the Supreme Court to be
testimonial. In Williams, supra, 567 U.S. ___, 132 S. Ct. 2221, the Supreme Court addressed
whether the results of a DNA test conducted by a private laboratory were testimonial. There
was no majority opinion in Williams, but both the plurality opinion and Justice Thomas’s
opinion, concurring in the judgment, “agreed that the introduction at trial of the challenged
forensic test result did not violate the Confrontation Clause because the result was not
‘testimonial.’” Cooper, supra, 434 Md. at 234 (citing Williams, supra, 567 U.S. ___, 132 S.
Ct. 2221).
Inasmuch as there was no majority opinion in Williams, it is not immediately clear
precisely what standard to apply when determining whether forensic test results are
testimonial. In Derr II, supra, the Court of Appeals examined Williams at length and
determined the appropriate standard for our Confrontation Clause analysis. 434 Md. at 114-
17. Because there was no majority opinion in Williams, the Court of Appeals looked to the
position taken by the Justices who “concurred in the judgments on the narrowest grounds,”
explaining as follows:
As noted above, there is no majority opinion of the Court in
Williams. In general, when interpreting the holding of a United
States Supreme Court decision where there is no opinion that
commands the support of the majority of the Justices, courts
have applied the standard articulated by the Supreme Court in
Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993,
51 L. Ed. 2d 260, 266 (1977) (quotation omitted): “When a
fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by
12
those Members who concurred in the judgments on the
narrowest grounds.” See Wilkerson v. State, 420 Md. 573, 594,
24 A.3d 703, 715 (2011); Grutter v. Bollinger, 539 U.S. 306,
325, 123 S. Ct. 2325, 2337, 156 L. Ed. 2d 304, 330 (2003);
United States v. Rivera–Martinez, 665 F.3d 344, 347 (1st Cir.
2011). In this case, requiring that statements be, at a minimum,
formalized to be testimonial is the “position” taken by the five
Justices who agreed that the Confrontation Clause was not
violated “on the narrowest grounds.”
Derr II, supra, 434 Md. at 114. The Court of Appeals noted that the Williams “plurality did
not clarify how to determine if a statement is sufficiently formalized to be testimonial.” Id.
at 116. The Court continued:
Both the plurality opinion and Justice Thomas’s concurring
opinion, however, use nearly the same examples of what
constitutes sufficiently formalized statements, namely affidavits,
depositions, prior testimony, or statements made in formalized
dialogue or a confession. See 567 U.S. at ––––, 132 S. Ct. at
2242, 183 L. Ed.2d at 114 (plurality); 567 U.S. at ––––, 132 S.
Ct. at 2260, 183 L. Ed. 2d at 133 (Thomas, J., concurring in
judgment). We, thus, conclude that courts should rely on Justice
Thomas's concurrence to determine whether a statement is
formalized.
Id.
In his concurrence in Williams, supra, Justice Thomas explained that the forensic
report at issue was not testimonial because it “lack[ed] the solemnity of an affidavit or
deposition, for it is neither a sworn nor a certified declaration of fact.” 567 U.S. at ___, 132
S. Ct. at 2260 (Thomas, J., concurring in judgment). Justice Thomas continued:
Nowhere does the report attest that its statements accurately
reflect the DNA testing processes used or the results obtained.
The report is signed by two “reviewers,” but they neither purport
13
to have performed the DNA testing nor certify the accuracy of
those who did. And, although the report was produced at the
request of law enforcement, it was not the product of any sort of
formalized dialogue resembling custodial interrogation.
Id. (citation omitted). Justice Thomas emphasized that, unlike the reports at issue in
Melendez-Diaz and Bullcoming, the challenged report in Williams “in substance, certifies
nothing.”6 Id. Our Court of Appeals has applied the standard set forth by Justice Thomas
in two cases: Derr II, supra, 434 Md. 88, and Cooper, supra, 434 Md. 209. This Court
applied the standard in one case: Malaska v. State, 216 Md. App. 492 (2014).
In Derr II, supra, the Court of Appeals held that the serological exam results and
DNA test results in that case were not sufficiently formalized to be testimonial. 434 Md. at
118-120. Regarding the serological exam results, the Court observed that there were “no
signed statements or any other indication that the results or the procedures used to reach
those results were affirmed by any analyst, examiner, supervisor, or other party participating
in its development.” Id. at 119. The Court further emphasized that, “[l]ike the Cellmark
report at issue in Williams, the serological examiner’s notes ‘lack the solemnity of an
affidavit or deposition, for [they are] neither a sworn nor a certified declaration of fact[,]’
6
Justice Thomas noted that the reports at issue in Melendez-Diaz “were sworn to
before a notary public by [the] analysts who tested [the] substance for cocaine” and that the
report at issue in Bullcoming, “though unsworn, included a ‘Certificate of Analyst’ signed
by the forensic analyst who tested the defendant's blood sample.” Williams, supra, 567 U.S.
at ___, 132 S. Ct. at 2260. Justice Thomas noted that the analyst “affirmed that . . . the
statements in [the report] are correct,” and that the analyst had “followed the procedures set
out on the reverse of th[e] report.” Id.
14
nothing on the notes ‘attest[s] that [their] statements accurately reflect the . . . testing
processes used or the results obtained[,]’ there is no signed statement from a person who did
the test or someone ‘certify[ing] the accuracy of those who did’ and, although the serological
examination was performed at the request of law enforcement,’ the results are ‘not the
product of any sort of formalized dialogue resembling custodial interrogation.’” Id. (quoting
Williams, supra, 567 U.S. at ___, 132 S. Ct. at 2260) (Thomas, J., concurring in the
judgment).
The Court similarly concluded that the DNA test results at issue in Derr II lacked the
solemnity to be testimonial under Williams because “[n]o statements . . . appear anywhere
on the results attesting to their accuracy or that the analysts who prepared them followed any
prescribed procedures.” Id. One set of DNA results admitted as evidence “display[ed] a
series of numbers and lines, and on the bottom of the documents [were] the initials of two
parties.” Id. Other results were identical but contained no initials on the bottom of the
documents. Id. at 120. The Court of Appeals concluded that, “although there are initials on
the bottom of [one set of] DNA test results, there [were] no statements providing any
certifications.” Id. Accordingly, the Court of Appeals held that “the DNA test results [were]
not sufficiently formalized to meet the requirements set out in Williams.” Id.
The Court of Appeals reached a similar conclusion in Cooper, supra, when it
determined that a DNA report was not sufficiently formalized to be testimonial. 434 Md. at
236. The Court described the report at issue in Cooper as follows:
15
The report . . . is a two page document indicating, among other
things, when the report was created, what items were tested,
what procedures were used to develop the results, and the DNA
results developed from the testing. Nowhere on either page of
the report, however, is there an indication that the results are
sworn to or certified or that any person attests to the accuracy of
the results. Although [the report was developed] at the request
of the Baltimore City Police Department, [the report] is not the
result of any formalized police interrogation.
Cooper, supra, 434 Md. at 236. The Court of Appeals “appl[ied] Justice Thomas’s
reasoning” and “conclude[d] that the . . . report lack[ed] the formality to be testimonial.” Id.
We reached a contrary result on the issue of whether a report was testimonial in
Malaska, supra, 216 Md. App. at 511. In Malaska, we concluded that an autopsy report was
sufficiently formalized to be “testimonial” for purposes of the Confrontation Clause. Id.7
We observed that the autopsy report at issue contained the signatures of Dr. Boggs, Dr.
Weedn, and Dr. Fowler. Dr. Boggs and Dr. Weedn personally participated in the autopsy,
and Dr. Fowler is the Chief Medical Examiner for the State of Maryland. Id. at 509-10. We
explained that “[a]lthough the report does not employ the words ‘attest’ or ‘certify’ or any
variation thereof, the signatures clearly imply that the signatories agree with and approve the
contents of the report.” Id. at 510. We further noted that several Maryland statutory
7
In Malaska, although we concluded the report was testimonial, we held that the
Confrontation Clause was not violated when a supervisor who was present at the scene and
participated in an autopsy testified, rather than the assistant who physically performed the
dissection. Id. at 516-517.
16
provisions require specific formalities regarding the performance of autopsies and associated
written reports. Id.
Turning to the evidence at issue in the instant case, we note that the Cline report is a
three-page document. The first page lists identification numbers and descriptions for two
pieces of evidence, which are described as “buccal swab[8] from suspect Harold Norton” and
“cutting from ski mask (+amylase phadebas dark blue).” A paragraph at the bottom on the
first page provides that “[t]he DNA profiles reported in this case were determined by
procedures that have been validated according to standards established by the Scientific
Working Group on DNA Analysis Methods (SWGDAM) and adopted as Federal Standards.”
On page two, the Cline report sets forth its conclusions as follows:
CONCLUSIONS AND STATISTICS:
1. The DNA profile that was obtained from evidence item
2S06-062-02 is a mixture that includes a major
component male DNA profile. The major component
male DNA profile matches the DNA profile obtained
from the reference item from Harold Norton (2S06-062-
01).
The probability of randomly selecting an unrelated individual
with this DNA profile is:
1 in 900 Quintillion (1 in 9.0 X 10 20 ) from the
Caucasian population;
1 in 1.5 Quintillion (1 in 1.5 X 1018 ) from the
African American population;
8
A “buccal swab” is a DNA sample “obtained by swabbing the cheek area inside of
a person's mouth.” Derr II, supra, 434 Md. at 99.
17
1 in 18 Quintillion (1 in 1.8 X 10 19 ) from the SW
Hispanic population;
1 in 27 Quintillion (1 in 2.7 X 10 19 ) from the SE
Hispanic population.
Therefore, within a reasonable degree of scientific certainty,
Harold Norton (2S06-062-01) is the major source of the
biological material obtained from evidence item 2S06-062-
02.
The evidence and extracts will be returned to the Baltimore
County Police Department.
Report submitted by:
[Signature] [Signature]
Rachel E. Cline Susan Bach, MFS
DNA Analyst III Forensic Casework Manager
(Emphasis added.) On page three, a table sets forth a “Summary of Short Tandem Repeat
Results” comparing the reference sample from Norton and the cutting from the ski mask.
Viewing the Cline report as a whole, we conclude that it is sufficiently formalized to
render it testimonial. Unlike the reports at issue in Derr II and Cooper, the Cline report
included language guaranteeing, “within a reasonable degree of scientific certainty,” that
Norton “is the major source of the biological material obtained from” the ski mask.
Moreover, the report’s conclusions are located directly above the signatures of Rachel E.
Cline and Susan Bach. The inclusion of such formalities in the report make it significantly
different from that at issue in Williams, supra, which Justice Thomas emphasized did not
“attest that its statements accurately reflect the DNA testing processes used or the results
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obtained.” 567 U.S. at ___, 132 S. Ct. at 2260. Further, the report at issue in Williams did
not “certify the accuracy of those who [performed the DNA testing].” Id. Unlike the report
in Williams, which “in substance, certifie[d] nothing,” see id., the Cline report explicitly
provided that the results were accurate “within a reasonable degree of scientific certainty.”
As we explained in Malaska, supra, the use of specific language -- such as “attest”
or “certify” -- is not required for a report to be considered formalized; certain “signatures
clearly imply that the signatories agree with and approve the contents of the report.” 216 Md.
App. at 510. A reading of the Cline report clearly reflects that it was intended to be an
authoritative, accurate document, prepared in conformity with specific federal standards and
based upon specific, validated procedures. Accordingly, we hold that the Cline report is
sufficiently formalized to be “testimonial” for purposes of the Confrontation Clause.
We further hold that the circuit court erred by permitting Cariola’s testimony
regarding the Cline report, and by admitting the Cline report through the testimony of
Cariola. Cariola acknowledged that he did not perform any analysis of Norton’s DNA
sample but merely reviewed the Cline report and associated lab notes and data after the
analysis was performed. Such surrogate testimony is plainly insufficient under Bullcoming,
supra, 131 S. Ct. at 2710 (“[S]urrogate testimony of that order does not meet the
constitutional requirement. The accused’s right is to be confronted with the analyst who made
the certification, unless that analyst is unavailable at trial, and the accused had an
opportunity, pretrial, to cross-examine that particular scientist.”), and Melendez-Diaz, supra,
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557 U.S. at 319 (“Confrontation is designed to weed out not only the fraudulent analyst, but
the incompetent one as well.”).
Under the circumstances of this case, it was improper for the circuit court to receive
Cariola’s surrogate testimony and admit Cline’s report merely because Cariola was Cline’s
supervisor. Accordingly, we shall reverse the judgment of the circuit court and remand the
case for further proceedings.
JUDGMENTS REVERSED. CASE REMANDED
TO THE CIRCUIT COURT FOR BALTIMORE
COUNTY FOR FURTHER PROCEEDINGS.
COSTS TO BE PAID BY BALTIMORE COUNTY.
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