DocketNumber: No. 06-CF-1455
Citation Numbers: 75 A.3d 174, 2013 D.C. App. LEXIS 603, 2013 WL 5039360
Judges: Blackburne, Oberly, Rigsby, Thompson
Filed Date: 9/12/2013
Status: Precedential
Modified Date: 10/26/2024
Appellant Raymond Jenkins was convicted of first-degree murder while armed, first-degree burglary while armed, attempt to commit robbery while armed, two counts of first-degree felony murder while armed, and possession of a prohibited weapon, all in connection with the June 1999 stabbing death of Dennis Dolinger. In this appeal, appellant seeks reversal of his convictions on the ground that his rights under the Confrontation Clause of the Sixth Amendment were violated when the trial court permitted the government to present the entirety of its DNA evidence through the testimony of a single expert witness without making available for cross-examination the laboratory analysts who performed the underlying sero-logical and DNA laboratory work.
While this case was pending on appeal, the Supreme Court of the United States decided Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). We asked the parties to brief the question of “what impact, if any, the plurality and concurring opinions in Williams v. Illinois should have on resolution of the Confrontation Clause issues raised in this case[.]” We now hold that the splintered decision in Williams, which failed to produce a common view shared by at least five Justices, creates no new rule of law that we can apply in this case. Accordingly, we apply pre-Williams case law — both the Supreme Court’s and our own — and conclude that the testimony and reports of the government’s expert witness, Dr. Frank Baechtel, were admitted in violation of the Confrontation Clause. We further conclude that the error was not harmless,
In addition to his Confrontation Clause claim, appellant argues that the trial court abused its discretion when, denying a defense discovery motion, it declined to compel the government to determine and report the number of “pairwise matches, at 9 or more loci” in the FBI and Virginia State DNA databases. We affirm the denial of the defense’s discovery motion.
I. Background
Dennis Dolinger was murdered in the basement of his house on Potomac Avenue, S.E., on June 4, 1999.
Shortly after the murder, the MPD learned that a man identified as Stephen Watson had made several purchases using Dolinger’s credit card. Police officers executed a search warrant at Watson’s residence and recovered a black backpack (which Watson said he had found discarded near the King Street Metro station) and a wallet containing Dolinger’s credit, identification, and bank cards. MPD officers initially arrested Watson for Dolinger’s murder, but subsequent DNA testing excluded Watson as a suspect.
On November 16, 1999, the MPD received information that caused appellant to become a “person of interest.” As we explained in an earlier opinion in this case reversing the trial court’s pretrial order excluding the introduction of DNA evidence, United States v. Jenkins, 887 A.2d 1013 (D.C.2005):
*177 Seeking further assistance, on November 16, 1999, the government contacted the Virginia Department of Criminal Justice Services (“DCJS”) requesting that DCJS run the profile of the unknown person [whose blood DNA was found in Dolinger’s house] through Virginia’s DNA database of 101,905 previously profiled offenders. Using only eight of the thirteen loci profiled by the FBI, the DCJS reported that the evidence sample was consistent with the eight-loci profile of Robert P. Garrett, a known alias of [appellant] Raymond Anthony Jenkins. At that point, the MPD investigation focused solely on Mr. Jenkins.
The government also called several other -witnesses at trial. James West, who worked at The Fireplace, a bar frequented by appellant, testified that appellant usually wore a grayish-blue pullover shirt and blue jeans. West identified the gray shirt recovered from Dolinger’s dressing room as “just like” the shirt that appellant usually wore. Anthony Scott, who knew appellant because they both “hung out” in the Dupont Circle area, also identified the gray shirt as one that appellant “wore all the time” (explaining that appellant “used to wash it in the little fountain” in Dupont Circle).
Robert Bethea, who, like Scott, knew appellant from frequenting the Dupont Circle area, testified that in early June 1999, he saw appellant on the Metro. Appellant told Bethea that “he was going over to a” “white dude[’s]” house “to steal stuff’ and would just “fuck him up” if he didn’t want to let appellant in. A few days later, Bethea again ran into appellant, who had “several pieces” of jewelry that he was trying to sell, including a diamond ring. Still later, when Bethea once again encountered appellant in Dupont Circle, appellant told Bethea that he had been in a fight with a guy, that he had “fucked him up ... [and] punished him,” and that he did not know if the man was “dead or alive.”
William Martin, a self-styled “jailhouse lawyer,” testified that while he and appellant were incarcerated together in February 2000, appellant asked him “if he could be convicted of dried blood.” When Martin told appellant, “yeah,” appellant appeared “shocked.” On a later occasion, Martin testified, appellant told Martin that he had “robbed a faggot” and had stabbed the “white guy” with a screwdriver and taken “a thousand dollars and some cash and a ring.” Martin said appellant told him that, after the robbery, he left his backpack near the Potomac Avenue Metro station and that he was aware that another “white guy” had found the backpack and had used the credit cards. Appellant stated that he was going to allow the “white guy” to take the charge because that guy “was dying of AIDS anyway.”
Appellant did not testify at trial, but the defense advanced the theory that the “attack was directed at Dennis Dolinger because Mr. Dolinger was inside that house with Raymond Jenkins and they’re inside that house and they are engaging inside that house in some act of some degree of sexual activity and someone came in and didn’t like what the person saw”; and that “[t]hat person reacted, responded, attacked and in the attack Raymond Jenkins got cut and ... got out of there.” Defense counsel told the jury that the “police investigation in this case missed evidence left and right” and emphasized that there were “several blood stains [in Dolinger’s house] that simply just went untested.”
II. Appellant’s Confrontation Clause Claim
Appellant’s defense team filed a pretrial motion to preclude the government from presenting the results of the FBI’s DNA testing without the in-court testimony of the personnel who actually did the laboratory work. The trial court denied the motion, ruling that if the laboratory personnel were “available to be subpoenaed and to be called as witnesses by the defense, then ... that address[ed] the confrontation issue.”
We start by recognizing that the Sixth Amendment right of an accused to confront the witnesses against him is a fundamental right.
In this jurisdiction, it is settled that “[f]orensic evidence, including DNA analysis, is not exempt from Crawford’s[
Since the Supreme Court decided Crawford, Confrontation Clause cases involving forensic evidence have turned on the meaning of “testimonial.” Id. In Crawford, 541 U.S. at 51, 124 S.Ct. 1354, the Supreme Court identified “‘[v]arious formulations’ ” of the “ ‘core class of testimonial statements,’ ” but the Court “declined ‘to spell out a comprehensive definition of testimonial’ suitable for all cases.” Thomas v. United States, 914 A.2d 1, 12 (D.C.2006) (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354). This court has recognized that, at a minimum, “to be testimonial, a statement must have been made, primarily, for an evidentiary purpose.” Young, 63 A.3d at 1040. The Justices of the Supreme Court do not agree, however, on whether a statement must meet any additional criteria in order to be considered testimonial. In this case, we decide whether the Court’s decision in Williams affects our rule in Roberts, 916 A.2d at 938, that there is no “dispute that the conclusions of FBI laboratory scientists — the serologist, the PCR/STR technician, and the examiner — admitted as substantive evidence at trial are ‘testimonial’ under Crawford.”
1. Confrontation Clause Jurisprudence Before Williams
The Supreme Court first took up the issue of whether reports of laboratory analysts’ findings are “testimonial” for Confrontation Clause purposes in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In that case, the trial court had “admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine.” Id. at 307, 129 S.Ct. 2527. In a 5-4 decision, the Supreme Court held that “[t]here is little doubt that the documents at issue in this case fall within the ‘core class of testimonial statements’” that the Court had described in Crawford. Id. at 310, 129 S.Ct. 2527 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). The documents at issue in Melendez-Diaz were “quite plainly affidavits” because they were “‘solemn declaration^] or affirmation[s] made for the purpose of establishing or proving some fact.’” Id. (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Moreover, the Court held, “not only were the affidavits made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, but under Massachusetts law the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance.” Id. at 311, 129 S.Ct. 2527 (citations and internal quotation marks omitted). Thus, the Court could “safely assume that the analysts were aware of the affidavits’ eviden-tiary purpose.” Id.
Writing separately in Melendez-Diaz, Justice Thomas, the fifth member of the majority, stated that he joined the Court’s opinion “because the documents at issue in this case are quite plainly affidavits, ... [and][a]s such, they fall within the core class of testimonial statements governed by the Confrontation Clause.” Id. at 330, 129 S.Ct. 2527 (Thomas, J., concurring) (citation and internal quotation marks omitted). Justice Thomas stated that he “continue[d] to adhere to [his] position [which he expressed in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) ] that the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Melendez-Diaz, 557 U.S. at 329, 129 S.Ct. 2527 (Thomas, J., concurring) (internal quotation marks omitted).
The Supreme Court returned to the issue of the Confrontation Clause and forensic laboratory reports in Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Petitioner Bullcoming was arrested on charges of driving while intoxicated, and the principal evidence against him at trial was a forensic laboratory report that was unsworn, unlike the report at issue in Melendez-Diaz, but that certified that Bullcoming’s blood-alcohol concentration exceeded the threshold for the charged offense. Bullcoming, 131 S.Ct. at 2709. The State “did not call as a witness the analyst who signed the certification”; instead, it called another analyst who was familiar with the laboratory’s testing procedures but had not participated in or observed the test performed on Bullcoming’s blood sample. Id. The issue before the Court was “whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification— made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test report
Justice Sotomayor wrote separately to highlight her view that the laboratory report was testimonial “specifically because its primary purpose is evidentiary.” Id. at 2719 (Sotomayor, J., concurring) (internal quotation marks omitted); see also id. at 2721 n. 3 (opining that “[fjormality is not the sole indicator of the testimonial nature of a statement because it is too easily evaded”). She also “emphasize[d] the limited reach of the Court’s opinion,” for it did not resolve the issue that might be presented in some other “substitute” witness scenarios, where “the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue,” rather than someone who “played no role in producing the ... report.” Id. at 2719, 2722 (Sotomayor, J., concurring).
Although Justice Thomas joined most of the opinion in Bullcoming, he did not join footnote 6, which states that “[t]o rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of ‘establishing] or proving] past events potentially relevant to later criminal prosecution.’ ” Id. at 2714 (Thomas, J., concurring) (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).
This court’s relevant Confrontation Clause jurisprudence starts with Thomas, 914 A.2d 1, decided before Melendez-Diaz and Bullcoming. In Thomas, we applied Crawford’s “various formulations” of what constitutes a testimonial statement, and we agreed with appellant Thomas that the trial court’s admission in evidence of a Drug Enforcement Administration chemist’s certified report in the absence of live testimony from the chemist who wrote it violated Thomas’s “right ... to be confronted with the witnesses against him.” Thomas, 914 A.2d at 16. The DEA chemist’s report satisfied every formulation of “testimonial” articulated by the Supreme Court in Crawford: (1) the DEA chemist “was tasked by the government to provide critical expert witness testimony for use against appellant at his criminal trial,” and therefore it was a “ ‘statement ] that [was] made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” id. at 12-13 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354); and (2) “[i]n form and content, the report was a formal and solemn ‘attestation’ — an affidavit, except that it was unsworn — introduced by the prosecution in lieu of the chemist’s live testimony.” Id. at 13. In that case, it was “difficult to imagine a statement more clearly testimonial.” Id. at 13.
Following Thomas, we decided a series of cases involving Confrontation Clause claims that focused on the testimony of DNA experts who referred to forensic laboratory findings, but who did not themselves perform the underlying laboratory tests. The first of these cases was Roberts. The DNA expert who testified at appellant Roberts’s trial on sexual abuse charges had not performed the serology
[T]he FBI laboratory scientists here were “forensic expert[s] employed by a law enforcement agency, ... tasked by the government” to perform tests providing the basis for “critical expert witness testimony ... against appellant at his criminal trial.” ... To the extent that their conclusions were used as substantive evidence against appellant at trial, he was therefore entitled to be “confronted with” the conclusions in the manner the Sixth Amendment requires, that is, through the opportunity for cross-examination of the declarant.
Id. (quoting Thomas, 914 A.2d at 13).
In Gardner, the government had been permitted to introduce into evidence the testimony of Dr. Robin Cotton, a representative of a private forensic laboratory that had conducted the DNA testing and analysis, and the testimony of Caroline Zervos, an FBI serology analyst. 999 A.2d at 57. “Dr. Cotton did not perform the DNA testing herself and she did not supervise the analyst who performed the testing” but performed a “ ‘technical review
The government “concede[d] that the conclusions set forth in the DNA and serology reports were ‘testimonial’ ” and that “the admission of these results, either through the admission of the DNA report or the expert testimony, violated appellant’s rights under the Confrontation Clause ... because the scientists who actually conducted the testing were not available for cross-examination.” Id. at 58-59, 59 n. 5. Citing Melendez-Diaz and Roberts, we agreed in a footnote that “there is no question that this evidence was testimonial” because the government’s DNA and serology analysis was “ ‘created primarily for the government to use it as a substi
Although the Supreme Court has not agreed on the limitations of what it means to be testimonial, our own case law has established the principle that statements of DNA findings and analysis are testimonial if they are made primarily with an evidentiary purpose, regardless of their formality or any other particular criteria.
2. The Effect of Williams on Confrontation Clause Jurisprudence
The Supreme Court’s most recent Confrontation Clause case has not provided any clarity. Williams was decided by a plurality opinion and Justice Thomas’s opinion concurring in the judgment. During petitioner Williams’s bench trial for rape, the prosecutor called as its expert a forensic specialist at the Illinois State Police (“ISP”) laboratory, who testified that according to ISP business records, vaginal swabs taken from the victim were sent to Cellmark, an outside, accredited laboratory, and were returned to the State police laboratory “along with a deduced male DNA profile.” Williams, 132 S.Ct. at 2227, 2230. The expert testified that based on her comparison of the Cellmark-developed DNA profile found in semen from the vaginal swabs and the DNA profile that had been developed by the ISP laboratory from a sample of Williams’s blood taken when he was arrested on unrelated charges, Williams “cannot be excluded as a possible source of the semen identified in the vaginal swabs.” Id. at 2230. Williams argued that “the expert went astray when she referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim’s vaginal swabs.” Id. at 2227. The Court noted that “[tjhe expert made no other statement that was offered for the purpose of identifying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample[,]” and she did not “vouch for the accuracy of the profile that Cellmark produced.” Id.
In the portion of its opinion relevant here,
The plurality noted that all except one of the post -Crawford cases in which the Court found a Confrontation Clause violation “shared the following two characteristics”: The cases “involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct” and “they involved formalized statements such as affidavits, depositions, prior testimony, or confessions.” Id. at 2242.
In his opinion concurring in the judgment, Justice Thomas agreed that the Cellmark report was not testimonial— “solely because Cellmark’s statements lacked the requisite formality and solemnity to be considered testimonial for purposes of the Confrontation Clause” — but he rejected the plurality’s “targeted accusation” test because it “lacks any grounding in constitutional text, in history, or in logic.” Id. at 2255, 2262 (Thomas, J., concurring). The requirement that a statement is testimonial only if it is meant to incriminate a known individual “makes little sense.” Id. at 2268. “A statement that is not facially inculpatory may turn out to be highly probative of a defendant’s guilt when considered with other evidence.” Id. Justice Thomas “agree[d] that, for a statement to be testimonial within the meaning of the Confrontation Clause, the declarant must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution[,]” but for Justice Thomas, “this necessary criterion is not sufficient, for it sweeps into the ambit of the Confrontation Clause statements that lack formality and solemnity-” Id. at 2261.
According to Justice Kagan’s dissenting opinion, joined by Justices Scalia, Ginsburg, and Sotomayor, the Court’s “Confrontation Clause precedents” made Williams “an open-and-shut case.” Williams, 132 S.Ct. at 2265 (Kagan, J., dissenting). The Cellmark report was testimonial because it “was made to establish some fact in a criminal proceeding” and it “detailed] the results of forensic testing
Concluding, Justice Kagan commented on the confusion that Williams would leave in its wake:
Before today’s decision, a prosecutor wishing to admit the results of forensic testing had to produce the technician responsible for the analysis. That was the result of not one, but two decisions this Court issued in the last three years. But that clear rule is clear no longer.... What comes out of four Justices’ desire to limit Melendez-Diaz and Bull-coming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is — to be frank — who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority.
Id. at 2277.
This jurisdiction has decided one case since Williams. In Young, 63 A.3d at 1036, the appellant, Young, was identified as a suspect in a sexual assault case through a “cold hit” when the DNA profile of the assailant derived from the complainant’s vaginal swabs matched Young’s profile in the FBI’s database of offender DNA profiles. The police eventually obtained a
In determining what effect the fractured Williams opinion had on Young’s appeal, we recognized that the so-called Marks principle — that “[w]hen 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 those Members who concurred in the judgments on the narrowest grounds,” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks omitted) — did not apply, “for the two opinions of the Justices who concurred in the judgment in Williams lack the necessary common denominator.” Young, 63 A.3d at 1043. As we explained:
A statement could be made for the purpose of accusing a targeted individual and therefore be testimonial under Justice Alito’s test without being formal enough to satisfy Justice Thomas’s test. Conversely, a statement could be sufficiently formal to pass Justice Thomas’s test without being accusatory or targeted at a particular person. Thus, the rationales of Justice Alito’s opinion and Justice Thomas’s opinion are incommensurable — neither rationale is subsumed within the other or narrower than the other in any meaningful sense that we discern.
Id.; see also Williams, 132 S.Ct. at 2265 (Kagan, J., dissenting) (“I call Justice Ali-to’s opinion ‘the plurality,’ because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication.”).
For the resolution of Young’s appeal, we found it unnecessary to determine any precise holding in Williams, extracting instead “an intermediate position”:
By analogy to Marks, it can be argued that while Justice Alito’s rationale and Justice Thomas’s rationale may not be includible within each other, the different tests they utilize to determine whether a statement is testimonial are subsumed within and narrower than the dissenters’ test. That is so because Justice Alito and Justice Thomas each added an additional requirement to the basic “evidentiary purpose” test espoused by Justice Kagan. If the four-justice plurality would deem a statement testimonial under the targeted accusation test, the four dissenting Justices surely would deem it testimonial under the broader evidentiary purpose test. Similarly, if Justice Thomas would deem a statement testimonial employing his formality criterion along with the eviden-tiary purpose test, the four dissenting Justices necessarily would deem it testimonial using the evidentiary purpose test alone. It therefore is logically coherent and faithful to the Justices’ expressed views to understand Williams as establishing — at a minimum — a sufficient, if not a necessary, criterion: a statement is testimonial at least when it passes the basic evidentiary purpose test plus either the plurality’s targeted accusation requirement or Justice Thomas’s formality criterion.
63 A.3d at 1043-44. Applying this sufficient criterion to Young’s appeal, we concluded that the hearsay that Craig relayed
Young’s sufficient criterion takes us only so far in this case. Much of the forensic evidence that Dr. Baechtel relayed through his written reports and testimony was obtained after appellant became a suspect
Young established a sufficient criterion for determining when evidence is testimonial, using a kind of reverse-Marks approach based on the plurality opinion and Justice Thomas’s opinion each resting on a narrower definition of testimonial than the dissenting opinion. We were careful in Young not to make the sufficient criterion extracted from Williams a necessary one; in other words, this court left open the possibility that a statement might be considered testimonial even if it does not meet the sufficient criterion. We decline to extend Young to hold that for a statement to be considered testimonial it must pass the basic evidentiary purpose test plus either the plurality’s targeted accusation requirement or Justice Thomas’s formality criterion. Because the evidence at issue here lacked Justice Thomas’s required formality and involved both pre- and post-target testing, we must determine what effect, if any, Williams has on the outcome of this case.
We are presented here with the question of how to treat a fractured Supreme Court opinion when Marks does not apply. As we observed in Young, Marks “works only when the narrowest opinion actually does represent ‘a common denominator.’ ” Young, 63 A.3d at 1043 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991)). Where there is no common denominator in the Court’s reasoning, “no particular standard constitutes the law of the land, because no single approach can be said to have the support of a majority of the Court.” Rappa v. New Castle County, 18 F.3d 1043, 1058 (3d Cir.1994). In such cases, the Court’s opinions “do not establish a governing standard for future cases.” Id. at 1060. “If applied in situa
At least one court has held that Williams is “confined to the particular set of facts presented in that case.” United States v. James, 712 F.3d 79, 95 (2d Cir.2013). In doing so, the Second Circuit “conclude[d] that we must rely on Supreme Court precedent before Williams to the effect that a statement triggers the protections of the Confrontation Clause when it is made with the primary purpose of creating a record for use at a later criminal trial.” Id. We do the same here, relying on pre-Williams precedent in the Supreme Court and in our own jurisdiction to determine whether the government’s expert witness, Dr. Baechtel, relayed testimonial hearsay in violation of appellant’s rights under the Confrontation Clause.
B. Admission of Dr. Baechtel’s Reports and Testimony
Dr. Baechtel testified that his responsibilities as a forensic examiner are to “man
By referring to the findings of other laboratory analysts — those who tested for the presence of biological material in the crime scene evidence and those who extracted and amplified the DNA — and doing so without a limiting instruction that would have directed the jury not to consider the analysts’ findings as substantive evidence, we think it is clear that under the law in this jurisdiction Dr. Baechtel relayed hearsay.
Further, the government offered and the court admitted into evidence Dr. Bae-chtel’s written DNA reports, which contained statements (such as “Blood,” “No blood,” “Insufficient DNA obtained,” and “Jenkins as major contributor; Dolinger as minor”) that were based on the laboratory analysts’ findings. The reports indicate, inter alia, that a “DNA Profile Match” to appellant was found between the DNA profile developed from appellant’s blood sample and the DNA profile developed from the gray shirt, the jeans, the towel, the sink and stopper, and the bannister.
Under pre-Williams case law in this jurisdiction, the hearsay that Dr. Baechtel relayed also was testimonial. The serology and DNA testing was conducted for the primary purpose of establishing some fact relevant to a later criminal prosecution: the identity of Dolinger’s killer. As in Thomas and Roberts, “the FBI laboratory scientists here were ‘forensic experts] employed by a law enforcement agency, ... tasked by the government’ to perform tests providing the basis for ‘critical expert witness testimony ... against appellant at his criminal trial.’” Roberts, 916 A.2d at 938 (quoting Thomas, 914 A.2d at 13). Because the tests were conducted “expressly for use in criminal prosecutions as a substitute for live testimony against the accused,” the stated results of those tests are testimonial. Thomas, 914 A.2d at 14. Thus, Dr. Baechtel’s testimony, relaying the lab findings, was admitted in violation of appellant’s rights under the Confrontation Clause.
The dissent asserts that we apply the Confrontation Clause with “wooden formalism” and that such an application is uncalled for in this case because the crime-scene evidence “was made available for testing or re-testing by appellant’s defense team.” Post at 207-08. We rejected this very argument in Thomas, explaining that “[t]he flaw in the logic of this argument is evident: if the chemist was available to the defense, then she also was available to the prosecution, i.e., she was not unavailable to testify in person as Crawford categorically requires. Crawford’s unqualified insistence on the declarant’s unavailability as a precondition to admitting testimonial hearsay forecloses the argument that there exists an ‘available to the accused’ exemption from the demands of the Confrontation Clause.” Thomas, 914 A.2d at 15. Perhaps more fundamentally, as we noted in Thomas, “an ‘available to the accused’ exemption would be contrary ... to the plain language of the Sixth Amendment,” which “imposes a burden of production on
C. Harmless Error
Having found a Confrontation Clause error, we must reverse appellant’s conviction unless we find the error harmless beyond a reasonable doubt. Young, 63 A.3d at 1049; Gardner, 999 A.2d at 58. “Under [this] heightened constitutional standard of review, the government bears the burden of demonstrating that ... the verdict was surely unattributable to the erroneously admitted evidence.” Kaliku v. United States, 994 A.2d 765, 775 (D.C.2010) (internal quotation marks omitted); see also Brooks v. United States, 39 A.3d 873, 889 (D.C.2012).
The government argues that any confrontation error in this case was harmless beyond a reasonable doubt because “appellant openly conceded at trial that both his blood and DNA were found at the crime scene ... to advance the theory that [he] was really a second victim who was attacked by some unknown perpetrator.” Because it is true that appellant’s counsel conceded in both opening and closing statements that appellant’s blood was found in all the locations in Dolinger’s house where the government sought (through Dr. Baechtel’s testimony) to prove it was found, this case bears certain similarities to Kaliku. In that case, we assumed without deciding that there had been a Confrontation Clause error but concluded that the error was harmless beyond a reasonable doubt because “[f]rom opening to closing statements [the defendants] conceded that they engaged in sexual acts with [the victim,] ... maintaining] that those sexual acts were consensual.” 994 A.2d at 776. “The references to consensual sex during [the defendants’] opening and closing arguments were tantamount to, or indeed constituted, evidentiary admissions,” and thus were binding upon the party.
Appellant’s evidentiary admission, however, does not account for the other blood and DNA testimony in issue: Dr. Bae-chtel’s testimony that Dolinger’s blood, too, was found on the gray shirt (evidence that the prosecutor used to argue that “there is only one way that this blood here got ... onto [defendant’s shirt, he placed Dennis Dolinger in a headlock”); his testimony that appellant’s and Dolinger’s DNA profiles “account for all of the profiles in the blood evidence” (evidence that the prosecutor used to argue that “[t]here’s no evidence of two people with cuts walking around that house.” There is “only evidence ... that one person is cut badly inside.”); and his testimony that insuffi
Appellant’s evidentiary admission that his own blood was found on the crime scene was neither an admission that his was the only blood there other than Dol-inger’s, nor an admission that Dolinger’s blood was found where Dr. Baechtel indicated, and we do not believe the admission of this evidence was harmless beyond a reasonable doubt. Indeed, it undermined, perhaps fatally, the defense theory that appellant was a second victim rather than the killer.
The non-DNA evidence against appellant was not weak, but we cannot say it was so strong that the verdict was “surely unattributable” to the admission of Dr. Baechtel’s forensic testimony and reports. The three witnesses whose testimony was most incriminating — Scott, Bethea, and Martin
III. Appellant’s Rule 16 Claim
We now turn to appellant’s claim that the trial court abused its discretion when it denied appellant’s motion, filed pursuant to Super. Ct. Crim. R. 16(a)(1)(C) and 16(a)(1)(D), to compel the government to determine and report all the current pairwise matches at 9 or more loci in the National DNA Index System (NDIS) and the Virginia State DNA Index System (SDIS), excluding any duplicate profiles and marking any profiles belonging to siblings.
As an example to support its argument, the defense pointed to the results of a discovery request involving the 65,000-pro-file Arizona DNA database, which revealed that “1 in every 228 profiles in that state’s ... system matches another profile at 9 or more loci” and “1 in [every] 32,747” profiles matches another profile at 12 loci. Appellant’s counsel expected that “a similar frequency [will be] found” in the Virginia and NDIS databases. Counsel argued “empirical evidence of coincidental DNA matches at 9 or more loci” might make the government’s expert “unwilling to testify that Mr. Jenkins is the unique source of the crime scene DNA” and the requested information would thus be necessary to conduct an adequate cross-examination. Moreover, counsel argued, the Arizona discovery response “took just a few hours to prepare.”
In opposing the defense motion to compel, the government argued that the discovery request was irrelevant, untimely, and infeasible. The government emphasized that this case involved a 18-loci match and that no research had ever revealed a coincidental match between two 13-loci DNA profiles.
At the initial hearing on the motion to compel, the trial court stated:
[L]ooking at this declaration [of] Mr. Callaghan regarding the time that it would take to produce the information, relevance aside for the moment, it looks like he’s saying a minimum of ... four to six months. So if that’s what he’s saying, that is a problem [and] ... I think that there is a substantial timeliness issue and I’m prepared to deny the request on [a] timeliness basis....
The court deferred its ruling on the motion, however, until a few days later. In ruling on the motion on February 22, 2006, the court agreed that the requested information was “relevant,” and commented that it did not understand “why the FBI [could not] run ... or retrieve the information,” but ultimately declined to compel the FBI to do so since “for whatever reason they’re claiming they can’t.”
Appellant now argues that the court abused its discretion in denying the motion because the FBI did not assert that it could not comply with the request, because the time-consuming nature of the requested search was “not a valid legal basis to deny an otherwise proper discovery request under Rule 16,” and because the court ruled without hearing live testimony on the issues (despite appellant’s request, made after the court had ruled, that the court “bring Dr. Callaghan in” to testify). Rule 16(a)(1)(C) provides that:
Upon request of the defendant the prosecutor shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense, or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.
Rule 16(a)(1)(D) provides that:
Upon request of a defendant the prosecutor shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the prosecutor, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.
We review a trial court’s Rule 16 discovery ruling for abuse of discretion. Young, 63 A.3d at 1051; United States v. Curtis, 755 A.2d 1011, 1014 (D.C.2000). However, “[t]he correct interpretation and application of Rule 16 ... is a legal question [that] we review de novo since judicial discretion must ... be founded upon correct legal principles.” Ferguson v. United States, 866 A.2d 54, 59 (D.C.2005) (internal quotation marks omitted). “[W]here the defendant is entitled to discovery, and the trial court denies it ..., we determine whether the nondisclosure was prejudicial.” Id. (internal quotation marks omitted).
Although the trial court ruled that the number of pairwise matches at 9 or more loci would be relevant and material to the preparation of appellant’s defense, this case is governed by our recent holding in Young that the results of an NDIS
Even if appellant could show that the pairwise comparison search would be material to his defense, the trial court did not abuse its discretion in denying the discovery request as untimely. Discovery in the case had been ongoing for years, the motion to compel was argued when the long-scheduled trial was a few weeks away, and the trial court had before it Callaghan’s undisputed sworn statement that completing the requested search would take at least three months and probably more.
Although we affirm the denial of appellant’s discovery request, he is entitled to relief on his Confrontation Clause claim. We therefore reverse his convictions and remand for a new trial.
Reversed, and remanded.
. At various places in the trial transcript, "Dolinger” is spelled "Dolenger.” For consistency, when quoting from the transcript, we have used the first spelling, without noting the variation.
. In that same room, police found open jewelry boxes. They later discovered that some of Dolinger’s jewelry, including a diamond ring, was missing.
. Appellant was originally tried in March 2006, but that trial ended in a hung jury on all counts. Appellant's second trial, resulting in the convictions that he now appeals, commenced in June 2006. The government’s evidence at appellant’s first trial did not differ materially from its evidence at his second trial.
. The government did not rely on the cold hit at trial. The jury did not learn that the unknown DNA profile derived from crime-scene evidence was run through Virginia's DNA database of previously identified offenders.
. Both Scott and West also testified to having seen appellant leave The Fireplace with Dol-inger.
. MPD Detective Oliver Garvey testified that police had not made public that the weapon used in the killing of Dolinger was a screwdriver.
. Defense counsel also highlighted to the jury that government witnesses Martin, Scott, and Bethea were all felons who sought parole help, letters of support, or other favorable treatment from the United States Attorney’s Office.
. The court issued its ruling on March 10, 2006, prior to this court’s December 2006 decision in Thomas v. United States, 914 A.2d 1, 7, 15, 22 (D.C.2006) (rejecting the argument that the Confrontation Clause is satisfied through a defendant’s ability to "subpoena[] the [Drug Enforcement Administration] chemist" and to “question[] her as upon
. The Confrontation Clause declares that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const, amend. VI.
. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
. In Veney v. United States, 936 A.2d 811 (D.C.2007), an opinion issued shortly after Roberts, we "[a]ssum[ed] a confrontation clause violation” where, although the testifying DNA expert was a "supervisory analyst" of a "three-person DNA Team” and "used her own interpretations of the DNA evidence,” she “made references to the serology tests and the data produced by operation of a DNA-typing instrument, both carried out by other scientists on the team that she managed[.]” Id. at 831.
. The dissent finds our summary of the holding in Roberts "somewhat misleading,” noting that in that case we held that the evidence was testimonial because the lab analysts performed tests that "provid[ed] the basis for ‘critical expert witness testimony ... against appellant at his criminal trial.’ " Roberts, 916 A.2d at 938 (quoting Thomas, 914 A.2d at 13). Post at 206. The dissent emphasizes the language “against appellant at his criminal trial,” but we do not read that language to mean that appellant must have been accused at the time testing was completed. Indeed, in Gardner, we cited no requirement that the appellant have been accused at the time of testing in agreeing with the government's concession that the evidence was testimonial because the DNA and serology reports were created primarily for use at a later criminal prosecution. 999 A.2d at 59 n. 4.
. As described above, the trial court in the instant case did not give the jury an instruction limiting in any way the use of Dr. Bae-chtel's testimony or reports; thus, they were admitted as substantive evidence. Accordingly, the primary rationale supporting the plurality holding in Williams does not apply: That, because the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted, a DNA expert’s testimony that relayed the findings of outside laboratory analysts but that was admitted for the limited
. The exception, the plurality observed, is Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), in which the statement at issue was "elicited in the course of police interrogation” and "had the primary purpose of accusing a targeted individual,” but lacked formality. Williams, 132 S.Ct. at 2243.
. See Michigan v. Bryant, - U.S. -, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011) (recognizing that "the basic objective of the Confrontation Clause ... is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial”); Davis, 547 U.S. at 822, 126 S.Ct. 2266 (holding that statements are testimonial when "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution”); Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (testimonial statements include "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”); Melendez-Diaz, 557 U.S. at 310-11, 129 S.Ct. 2527 (same, quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354). In fact, the accusatory purpose rationale was rejected in Melendez-Diaz, 557 U.S. at 313, 129 S.Ct. 2527 (rejecting the argument that "the analysts are not subject to confrontation because they are not ‘accusatory’ witnesses, in that they do not directly accuse petitioner of wrongdoing”). "Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Id. at 319, 129 S.Ct. 2527. In rejecting the accusatory purpose argument, the Court reasoned: “Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.” Id. at 320, 129 S.Ct. 2527.
. When appellant became a suspect after the cold hit, the FBI took two samples of appellant’s blood and conducted additional rounds of testing on crime scene evidence.
. Although “it would be possible to predict the outcome in almost every case simply by counting the votes of the Justices,” as the dissent urges in this case, "such a system would be unprincipled” because it would combine the accusatory purpose test and the formality test to conclude that certain evidence is nontestimonial “even though not one Justice would have argued that there was any special synergistic effect of the two attributes.” Rappa, 18 F.3d at 1060 n. 24. “[G]iv-ing precedential value to a matrix predicting results would produce a system of low level, fairly predictable, formal rules but a system not rooted in any consistent constitutional values.” Id. More importantly, particularly as it applies to this case, “the predictability of such a system is lower than it appears, because the Supreme Court is likely to reconsider any case which produces a splintered result.” Id. This case is the very type whose outcome could not be fairly predicted by counting the votes in Williams. Unlike the situation in Williams, where the prosecution relied exclusively on a cold hit before appellant became a suspect, the prosecution in this case did not rely on the cold hit that identified appellant as a suspect; it relied on a comparison of appellant's DNA profile derived from his blood sample after he became a suspect and the "mystery profile” developed from the crime scene evidence before he became a suspect. Although most of the crime scene evidence was collected, tested, and analyzed before appellant became a suspect, Dr. Bae-chtel's testimony that appellant’s DNA matched the DNA profile found at the crime scene was based on the additional rounds of testing completed after appellant became a suspect. This is similar to Young, in which we recognized that the government did not rely on the cold hit that identified Young as a suspect — although the DNA profile of the complainant's attacker, derived from her vaginal swabs, was created before Young became a suspect — and instead the expert testified that she “had compared a DNA profile of Young created by her staff from his buccal swab with a male DNA profile derived at the lab from [the complainant's] vaginal swabs.” Young, 63 A.3d at 1038 & n. 10. In addition, although appellant was not a suspect at the time the FBI conducted its first round of testing, a suspect in the case did exist: Stephen Watson had been arrested and charged with the crime. The DNA testing exonerated Watson, but the fact that he was a suspect at the time of testing weakens the argument that the primary purpose of the testing "was to catch a dangerous [killer] who was still at large,” not to obtain evidence for use against a suspect in custody. Williams, 132 S.Ct. at 2243.
. Although we conclude that Williams gives us no new governing standard, we would be bound by its result in a "substantially identical” case. See Rappa, 18 F.3d at 1061. However, for the reasons set out in footnote 17, we do not think this case is "substantially identical” to Williams such that we are bound by its result.
. Dr. Baechtel did not explain what he meant by “interacting," testifying at one point that he "might have” personally looked at a shirt that was found underneath Dolinger's body, but he could not remember.
. Dr. Baechtel also explained that after the technicians "go through the procedures to recover DNA from a stain[,] we have to determine how much we have.... There is a lower limit below which we can’t depict DNA and under those circumstances I would say no detectable DNA.”
. We recognize that Justice Sotomayor’s concurrence in Buttcoming left open the question whether expert testimony like Dr. Bae-chtel's would be admissible as substantive evidence without the in-court testimony of the analysts if "the person testifying” is someone with “a personal, albeit limited, connection to the scientific test at issue,” for example, "a supervisor who observed an analyst conducting a test.” Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring). This case, however, is governed by our decisions in Young and Veney v. United States, 936 A.2d 809, 811 (D.C.2007). Like the expert in Young, Dr. Baechtel supervised a team of serologists and biologists who performed the actual testing and relied on the testing and analyses of those other scientists. See Young, 63 A.3d at 1037; see also Veney, 936 A.2d at 811 (agreeing that admission of expert testimony from supervisor who "made references to the serology tests and the data produced by operation of a DNA-typing instrument, both carried out by other scientists on the team she managed,” violated the Confrontation Clause). Also like the expert in Young, the extent to which Dr. Baechtel's supervision involved any personal connection to the tests and analyses he reviewed is unclear on the record before us and we will not attempt to discern what he meant by "interacting.” Young, 63 A.3d at 1038-39 n. 12 (declining to "indulge th[e] supposition [that the expert personally observed the DNA testing] in the evidentiary vacuum before us” because “[t]he government, as the proponent of [the expert’s] testimony, had the burden of establishing the basis for its admissibility when appellant objected to it”). We therefore conclude that Dr. Baechtel relayed hearsay.
. Anticipating what it calls a "knee-jerk reaction,” the dissent quotes Justice Kennedy's dissent in Melendez-Diaz that "requiring the [government] to call the technician who filled out a form and recorded the results of a test is a hollow formality.” Post at 208 (quoting Bullcoming, 131 S.Ct. at 2724 (Kennedy, J. dissenting)). In the dissent’s view, there is no reason to question the reliability of Dr. Baechtel's testimony, and we ought to apply a test that "sensibly avoids reversal of a murder conviction.” Post at 208. Of course, the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61, 124 S.Ct. 1354. It is the absence of this constitutional procedural requirement — one designed to protect a fundamental right of the accused to confront witnesses against him — that is of critical importance in this case.
. We therefore agree with the dissent that the admission of evidence that appellant's blood was found in various places at the crime scene was harmless beyond a reasonable doubt because appellant conceded that his blood was found where Dr. Baechtel said it was found. Post at 201.
. Because this testimony was based on lab findings and analysis completed before appellant became a suspect, the dissent would deem this evidence nontestimonial and thus properly admitted under the Confrontation Clause. Post at 201. For the reasons previously discussed, we do not agree.
. Two of them claimed that appellant had confessed to them, and the third identified the recovered backpack as the one appellant typically carried with a screwdriver inside and claimed to have seen appellant the day after the murder looking as if he had been in a fight.
. We cannot agree with the dissent’s alternative rationale for affirming appellant’s conviction — that appellant waived his confrontation rights by strategically using Dr. Baechtel’s inadmissible testimony to bolster his defense. See E.L. Cheeney Co. v. Gates, 346 F.2d 197, 206 (5th Cir.1965) ("[T]his testimony was elicited after the Court, over vigorous objection, had admitted the general reputation testimony from the highway patrolman. Counsel were simply trying to make the best of a situation brought about by the Court’s ruling."). Although a defendant may waive an objection to the admission or use of improper evidence when he introduces such evidence himself, there is a fundamental difference between independently introducing improper evidence or making an argument that relies on improper evidence, on the one hand, and, on the other hand, responding to the government’s affirmative case by cross-examining a witness the defense had tried to exclude from testifying.
.The Combined DNA Index System (CO-DIS) is a software database program that maintains the national database (NDIS) and that states use to compile their records into indexed databases.
. Appellant did not dispute that matches at 13 loci would be more rare than matches at lower numbers of loci. Cf. United States v. Davis, 602 F.Supp.2d 658, 676 (D.Md.2009) ("[0]ne is obviously more likely to find a coincidental match at seven or eight loci than at twelve or thirteen."). We note, too, that, during the Frye [v. United States, 293 F. 1013 (D.C.Cir.1923) ] hearing in this case, the trial court heard government expert Dr. Frederick Bieber testify that he was not aware of a single instance in which any scientist had identified two people sharing the same DNA profile at 13 loci, excluding identical twins.
The attachment to appellant's motion to compel indicates that the 11- and 12-loci matches found in the Arizona database that appellant cited as the basis for his motion were between confirmed siblings, and that " ‘[r]elatedness' between 9 and 10 locus matches has not been determined.” People v. Wright, 2012 IL App (1st) 073106, 361 Ill.Dec. 447, 971 N.E.2d 549, 577 (2012); cf. State v. Dwyer, 985 A.2d 469, 474-76 (Me.2009) (reasoning that a search of Maine’s convicted felon DNA database to find matches at 9 or more loci was "not reliable due to the known existence of twins, other relatives and duplicate samples already entered into the database”).
. Appellant did not present any contrary affidavits or sworn testimony challenging the statistics upon which the FBI relied. The fact that Callaghan's affidavit was undisputed justified the court in ruling without hearing live testimony.
. Contrary to appellant's argument that the time required for compliance with the request and similar considerations were not a valid legal basis for the court’s ruling, we have held that a Rule 16 discovery request must be "reasonable, that is, it may not unduly burden the government.” Beaner v. United States, 845 A.2d 525, 536 (D.C.2004) (internal quotation marks omitted); Curtis, 755 A.2d at 1016 ("This court has recognized that the request for discovery materials must be reasonable
. Because we reverse appellant’s convictions, we need not address his argument that his armed first-degree burglary and attempted armed robbery convictions must merge with the felony murder convictions predicated on those crimes, and that the felony murder convictions then must merge with his first-degree murder conviction.
. Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 2726, 180 L.Ed.2d 610 (2011) (Kennedy, J., dissenting); see also Williams v. Illinois, -U.S. -, 132 S.Ct. 2221, 2248, 183 L.Ed.2d 89 (2012) (Breyer, J., concurring) (observing that none of the Court’s decisions provides a "general answer” to or “fully deals with the underlying question as to how, after Crawford, Confrontation Clause ‘testimonial statement' requirements apply to crime laboratory reports”).