|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN LEE VANN,
Appellant, Court of Appeals No. A-9887
Trial Court No. 3SW-03-116 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2259 April 23, 2010
Appeal from the Superior Court, Third Judi
cial District, Seward, Charles T. Huguelet,
Judge.
Appearances: Sarah Kalish and Josie Garton,
Assistant Public Defenders, and Quinlan
Steiner, Public Defender, Anchorage, for the
Appellant. Tamara E. de Lucia, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
The major question in this case is whether the superior
court violated the defendants right of confrontation under the
Sixth Amendment to the United States Constitution when the
superior court allowed a laboratory technician employed by the
State Crime Lab to testify about the results of genetic testing
performed by the Crime Lab, when a portion of that testing was
conducted by another Crime Lab technician who did not testify.
In Mel‚ndez-D¡az v. Massachusetts, 557 U.S. __, 129
S.Ct. 2527, 174 | L.Ed.2d 314 (2009 | ), a cocaine trafficking case, the United States Supreme Court held that the Sixth Amendments confrontation clause barred the government from relying on hearsay evidence in the form of certificates of analysis prepared by three laboratory technicians to prove that certain substances in the defendants possession were, in fact, cocaine. 129 S.Ct. at 2532. | ||
| The Supreme Court declared that the lab technicians certificates were testimonial hearsay that is, the certificates were the type of hearsay barred by the confrontation clause because the certificates were functionally identical to live, in-court testimony: each certificate was a solemn declaration or affirmation made for the purpose of establishing or proving some fact in a court proceeding. Ibid.1 | |||
| In the present case, the defendant John Lee Vann was charged with kidnapping and sexually assaulting a woman. At Vanns trial, the major disputed issue was the identity of the perpetrator. Vann claimed that he had never met the victim, that he was elsewhere on the night in question, and that if the victim was kidnapped and sexually assaulted, he was not the one who did it. | |||
| As part of the States effort to establish that Vann was the culprit, the State presented the testimony of Cheryl Duda, a DNA analyst employed at the Alaska State Crime Detection Laboratory. | |||
| Duda testified that the Crime Lab received genetic samples from both Vann and the victim, and that these known samples were then compared to five samples of genetic material that were obtained from items associated with the crime. Duda tested three of these samples herself, but the other two samples were tested by Jessica Cohen, another DNA analyst working at the Crime Lab. Over Vanns objection, the superior court allowed Duda to describe and interpret the test results from all five samples. | |||
| The question is whether the superior courts ruling is incompatible with the Supreme Courts decision in Mel‚ndez-D¡az. As we explain in more detail in this opinion, we conclude that Mel‚ndez-D¡az does not bar the admission of the testimony that Vann challenges in this case. Here, in a nutshell, is our analysis: | |||
| Although Cheryl Dudas associate, Jessica Cohen, processed two of the samples (by running them through a machine that analyzes the genetic profile contained in DNA | ), Duda testified that (1 | ) she herself interpreted the data read-outs produced by the machine from Cohens two samples, and (2 | ) the conclusions that Duda reached about the significance of the test results were her own. Thus, Duda was the real witness with respect to all five of the samples much as a doctor would be the real witness regarding a diagnosis of illness, or a pathologist would be the real witness regarding a conclusion as to cause of death, even though the doctor or pathologist relied in substantial measure on the results of testing conducted by laboratory technicians. Accordingly, Vanns right of confrontation under the Sixth Amendment was satisfied when he was afforded the opportunity to cross-examine Duda. |
A more detailed description of
the challenged testimony
As we explained above, two DNA analysts
working at the Alaska State Crime Detection Laboratory
Cheryl Duda and Jessica Cohen participated in the
testing of the samples in Vanns case.
Duda personally tested and obtained DNA from
three samples: two swabs that were taken from bottles
connected to the crime, and a swab of blood taken from
the front passenger window of the vehicle involved.
As described by Duda, the testing of genetic
samples consists of four steps. First, strands of DNA
are chemically extracted from the sample. This is
followed by the second step: a measurement of how much
DNA has been obtained from the extraction. Third, the
extracted DNA is amplified chemically copied so that
there is a sufficient quantity to perform an analysis.
Finally, the strands of DNA are analyzed at 15 or 16
different locations to see what alleles (i.e., genetic
variants) are found at those locations.
This final stage of the testing the actual
analysis of the genetic contents of the amplified DNA
is performed by a machine. At the time of Vanns trial,
the State Crime Lab was using an ABI-310 Genetic
Analyzer for this purpose. The machine chemically
reads the genetic profile of the DNA, and then the
machine produces a graph that visually depicts that
genetic profile. This graph can be printed out for
later review and comparison with test results from
other samples.
After Duda performed this described testing
on her three samples (the swabs from the two bottles,
plus the blood swab), she compared the genetic profiles
of these three samples to the genetic profiles
generated from the known DNA samples taken from the
victim and from Vann. The first bottle sample
(referred to as sample 22-JFA in the testimony) was a
complete match of Vanns genetic profile. According to
Duda, the chance that the genetic material found on the
bottle came from someone other than Vann was less than
one in 1 quintillion (i.e., one in 1 billion billion,
or 1018).
The testing of the blood swab yielded
identical results: the genetic profile of the DNA
obtained from this blood was a complete match of Vanns
genetic profile.
The sample obtained from the second bottle
(referred to as sample 25-JFA in the testimony) yielded
DNA from more than one source. Although Duda could not
say for sure, it appeared that this sample contained
DNA from both Vann and the victim: every DNA location
that was testable in this sample yielded results that
were consistent with either Vanns genetic profile or
the victims genetic profile.
In addition to testing these three samples,
Duda also reviewed the report of the testing conducted
by her associate, Cohen, on two other samples. One of
these samples came from the victims body, while the
other came from the victims panty liner.
However, Duda did not simply review Cohens
report in the sense of reading it and noting its
conclusions. Rather, Duda independently re-analyzed
the significance of the test data that Cohen obtained
from running the two samples through the ABI-310
Genetic Analyzer. Here is Dudas testimony on this
point:
Duda: [Jessica Cohen was] the person
who went into the laboratory and actually put
scalpel to swab and cut it [to prepare it for
testing], but I did go through all of her
electronic data. In other words, Jessica ...
ran these [samples] through the genetic
analyzer, and then the genetic analyzer
produced [the test] data. [My participation]
began at the process of looking at the data
she printed out [from the genetic analyzer].
I made sure that, according to her bench
notes, she followed the protocols that are
standard for our laboratory. [In addition,]
I [confirmed] that I came to the same
[genetic] typing results that she did. And I
also looked at those [genetic] typing results
to form conclusions [about whether the DNA in
those samples matched the genetic profiles of
the people involved in this case]. [I] made
sure that [Jessica and I] came to the same
conclusions [from] these tests.
. . .
Prosecutor: Once [the samples were]
analyzed, did you review the [test data] that
was obtained?
Duda: Yes, I did.
Prosecutor: Okay. And that was ... to
see if you drew the same conclusions?
Duda: Thats right. To make sure that,
from the point where the [ABI-310 Genetic
Analyzer] spits out the data for us, ... that
the data [presented in Cohens] report is
consistent with [the machines reading], and
that the conclusions [she] reached [from that
data] are correct.
Duda then testified that she concurred with
all the information in [Cohens] report.
In particular, with regard to the
sample obtained from the victims panty liner,
Duda testified that this sample did contain
at least some male DNA, but the DNA obtained
from this sample was insufficient for the
genetic analyzer to produce data from many of
the DNA strand locations that are used as
test sites. The machine was able to identify
the alleles at a few DNA locations, and all
of these identified alleles were consistent
with either Vanns genetic profile or the
victims genetic profile, but Duda testified
that she [couldnt] come to any more
conclusions than that, because there just
isnt enough information there. She then
added, Im not calling this a match.
With regard to the sample obtained
from the victims body, the genetic analyzer
was able to fully analyze the DNA from this
sample. The testing yielded two genetic
profiles an epithelial profile obtained from
outer body cells and a separate profile
obtained from sperm cells.
Not surprisingly, the epithelial
profile matched the victims genetic profile.
The sperm profile, Duda testified, was a
complete match of Vanns genetic profile.
Again, the chance that the genetic material
found in the sperm sample came from someone
other than Vann was less than one in 1
quintillion.
The trial judges ruling in response to Vanns
confrontation clause objection
Before Cheryl Duda took the stand, Vanns
attorney objected to having Duda testify to what
[Jessica] Cohen did, and what [testing] results
she turned in. The trial judge, Superior Court
Judge Charles T. Huguelet, concluded that this
issue was governed by Alaska Evidence Rule 703.
Evidence Rule 703 governs expert testimony:
it allows a witness to offer an expert opinion
based on underlying information or data that was
made known to the expert, even if this information
or data would not be independently admissible
under the rules of evidence, so long as the
information or data is of a type reasonably relied
upon by experts in [that] particular field [when]
forming opinions or inferences upon the subject.
In other words, under Evidence Rule 703, the
proponent of expert testimony need not show that
the information or data that the expert is relying
on could survive a hearsay objection or an
objection based on the expert witnesss lack of
first-hand knowledge. See the fifth and sixth
paragraphs of the Commentary to Alaska Evidence
Rule 703; Guerre-Chaley v. State, 88 P.3d 539, 542
(Alaska App. 2004).
Responding to the defense attorneys
objection, Judge Huguelet stated that the
determinative issue was whether Cohens test
results were something that someone in [Dudas]
field of expertise [would rely] on, routinely, to
base their opinions. The judge then explained:
The Court: If this is the type of fact
or data that is reasonably relied upon by
experts in Ms. Dudas field, then she should
be able to testify to it. If it isnt, then
she shouldnt. ... I mean, if [this
information is offered] as a basis for her
opinion, the facts or data that she has
relied on, then it would probably be
admissible. [But] Id have to hear it, you
know. I cant predetermine [this question].
Vanns attorney argued that a normal
Rule 703 analysis did not apply, because the
State was not simply trying to introduce the
facts or data underlying Dudas opinion.
Rather, the defense attorney argued, the
State was really attempting to introduce one
expert witnesss findings (Cohens findings)
through the testimony of another expert
witness (Duda):
Defense Attorney: The problem is [that]
the State is trying to [have] Ms. Duda
testify [about] Ms. Cohens work. ... [T]he
State wants ... Ms. Duda to be able to
testify to what Ms. Cohen did, and then
testify to what Ms. Cohens results were.
[Ms. Cohens test was] a totally different
test. Thats [inadmissible] hearsay, and in
violation of [Vanns] right to confront [his
accusers]. ...
There [were] two different tests, is
what Im saying. Two different tests were done
by two different people.
Judge Huguelet reiterated his view
that the issue was governed by Evidence Rule
703: [Dudas testimony] needs to fit into
[Rule] 703 ... . [If] her opinion ... [is]
based on someone elses work, and thats what
experts in [her] field rely on, then she
should be able to ... disclose the underlying
facts and data that she relies on.
As indicated by Judge Huguelets
remarks quoted above, the judge acknowledged
that he did not yet have enough information
to make a final ruling on the admissibility
of Dudas proposed testimony because Duda had
not yet testified on the foundational
question of whether Cohens test results were
the kind of information or data that experts
in her field would rely on. Because of this,
Judge Huguelet encouraged Vanns attorney to
renew his objection if, later, the defense
attorney concluded that Dudas testimony about
the DNA testing performed by Cohen exceeded
the scope of testimony permitted by Rule 703.
The defense attorney raised no
further objection on this issue during Vanns
trial.
A more detailed look at the issue raised in this appeal
As we just noted, the trial judge invited
Vanns attorney to raise an objection if the
defense attorney believed that Dudas testimony
about the test results obtained by Cohen fell
outside the scope of admissibility defined by
Evidence Rule 703. The defense attorney never
raised such an objection. And, on appeal, Vann
does not argue that Dudas testimony exceeded the
scope of Evidence Rule 703. Rather, Vann argues
that it is irrelevant whether Dudas testimony was
authorized by Evidence Rule 703 because, even if
the challenged testimony was admissible under Rule
703, the admission of this testimony violated
Vanns right of confrontation guaranteed by the
Sixth Amendment.
Because Vann does not challenge the
admissibility of Dudas testimony under Evidence
Rule 703, he impliedly concedes that the test
results obtained by Cohen were, in fact, the type
of data that Duda (as a DNA analyst) would
reasonably rely on when she formed an opinion as
to whether Vann was potentially the culprit in
this case.
Thus, Vanns appeal raises the issue of
whether, or how, the confrontation clause of the
Sixth Amendment limits the admissibility of
evidence under Evidence Rule 703 i.e., limits the
admissibility of evidence that would otherwise be
hearsay when that evidence is offered to explain
the basis for an experts opinion.
Both Alaska Evidence Rule 703 and the
corresponding federal rule upon which it is based,
Federal Evidence Rule 703,2 were expressly intended to
modify the common-law rules of evidence by allowing
expert witnesses to offer opinions based on facts or
data that are not independently admissible in
evidence.3 So long as the information is of a type
reasonably relied on by experts in that field, the
expert witness is permitted to testify concerning that
information as a basis for their opinion.4 As
explained in the Commentary to Alaska Evidence Rule
703:
[T]he rule is [premised on] the belief that
when an expert is deemed skilled enough to
assist the trier of fact, the expert should
be allowed to utilize the tools that he [or
she] normally uses to practice his [or her]
skills outside of the court. Thus, a
physician [may base a] diagnosis on general
information obtained from medical journals
and treatises[,] ... [on] statements by
patients and relatives, [on] reports and
opinions from nurses, technicians[,] and
other doctors, [on] hospital records, and
[on] x-rays.
Commentary to Alaska Evidence Rule 703, fifth
paragraph.
The facts of Mel‚ndez-D¡az did not
raise this issue directly, because no
laboratory analyst or other chemical
identification expert took the stand in
Mel‚ndez-D¡az. Instead, the government
relied on a procedure under Massachusetts law
that allowed the government to introduce a
sworn report prepared by the analyst who
conducted the testing a certificate of
analysis. In other words, Mel‚ndez-D¡az
involved a situation where hearsay evidence
of the laboratory analysts findings was the
only evidence of the chemical composition of
the substances in the defendants possession.
Vanns case is different. To prove
that Vann was the source of the genetic
material retrieved from the victims body and
from various items connected to the crime,
the State presented the testimony of Cheryl
Duda, a DNA analyst employed by the State
Crime Lab. Duda explained the testing
procedures, she explained her analysis of the
test results, and she was subject to cross-
examination thus apparently satisfying Vanns
right of confrontation. But Vann argues that
even though Duda took the stand at his trial,
he was nevertheless denied his right to
confront the other DNA analyst who worked on
his case, Jessica Cohen.
Vann notes that, with respect to
two of the five testing samples involved in
this case (the sample obtained from the
victims panty liner, and the sample obtained
from the victims body), it was Cohen who
extracted the DNA, conducted the DNA
analysis, and obtained and recorded the
[test] results. Based on these
circumstances, and based on the Supreme
Courts decision in Mel‚ndez-D¡az, Vann
asserts that he had a right to confront
Cohen, the forensic analyst who actually
performed the procedures and [the] tests on
these two samples.
Ever since the Supreme Court
redefined the confrontation clause in
Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004), courts
have been struggling with the problem of how
a defendants right of confrontation affects
or limits the governments presentation of
expert opinion evidence in a criminal trial.
The Supreme Courts decision in Mel‚ndez-D¡az
may have clarified this area of the law to
some degree, but Mel‚ndez-D¡az does not
provide a ready answer to the question posed
in Vanns case.
As we explained earlier, Mel‚ndez-
D¡az dealt with a situation at the far end of
the confrontation spectrum. The government
presented no live witness to establish that
the substance in Mel‚ndez-D¡azs possession
was cocaine. Rather, the government relied
on certificates prepared by laboratory
analysts employed by the government. These
certificates were terse: they contained only
the bare-bones statement that [t]he substance
[in Mel‚ndez-D¡azs possession] was found to
contain: Cocaine. Mel‚ndez-D¡az, 129 S.Ct.
at 2537. The certificates did not contain
any explanation of the testing procedures
that the analysts used, nor did the
certificates recite the resulting test data
upon which the analysts based their
conclusions. Ibid.
In other words, to prove that
Mel‚ndez-D¡az possessed a controlled
substance, the government relied on wholly
conclusory written statements made by absent
witnesses. When the case is viewed in this
light, it is easy to agree with Justice
Scalias pronouncement that the Courts
decision in Mel‚ndez-D¡az was simply a
straightforward application of [the Courts]
holding in Crawford. 129 S.Ct. at 2533.
So what were the points of
contention in Mel‚ndez-D¡az? The Courts
decision is notable, not for the legal
propositions that the Court adopted, but
rather for the legal propositions that the
Court rejected.
Most importantly, the Court
rejected the argument that laboratory
technicians or analysts are not accusatory
witnesses, but are instead disinterested
scientific experts whose conclusions need not
be subjected to the demands of the
confrontation clause.
The Court pointed out that, in
Mel‚ndez-D¡azs case, the laboratory analysts
provided the governments sole proof of an
essential element of its case: proof that
the defendant possessed cocaine. 129 S.Ct.
at 2533-34. The fact that the government had
police witnesses who could testify that
Mel‚ndez-D¡az possessed this substance would
matter very little without the laboratory
analysis of the substance.
The Court further pointed out that,
even though the ideal laboratory technician
or analyst might engage in neutral,
scientific testing, 129 S.Ct. at 2536, the
reality was sometimes different. As the
Court observed, [f]orensic evidence is not
uniquely immune from the risk of
manipulation. Ibid. The Court noted that
the majority of forensic laboratories in this
country are administered by law enforcement
agencies; thus, the technicians who work at
these laboratories may feel pressure or have
an incentive to alter the evidence in a
manner favorable to the prosecution. Ibid.5
Nor is purposeful manipulation of
test results the only danger. As the Court
observed, the Sixth Amendments right of
confrontation is designed to weed out not
only the fraudulent analyst, but the
incompetent one as well. ... Like expert
witnesses generally, an analysts lack of
proper training or deficiency in judgment may
be disclosed on cross-examination. Id. at
2537.
The Court also rejected the
argument, based on the Courts earlier
decision in Davis v. Washington, 547 U.S.
813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006),
that a laboratory technicians out-of-court
assertions are not covered by the
confrontation clause because the technician
is simply observing and recording
contemporaneous or near-contemporaneous
events e.g., a visible chemical reaction, or
the reading displayed by a testing machine.
Mel‚ndez-D¡az, 129 S.Ct. at 2534-35.
The Court pointed out that, in
Davis (actually, in the companion case of
Hammon v. Indiana), the victim of a domestic
assault gave an account of the crime to the
police soon after the assault was committed;
the victims statement was sufficiently
contemporaneous with the assault that the
trial judge in that case ruled that this out-
of-court statement qualified for admission as
a statement of present sense impression.
Mel‚ndez-D¡az, 129 S.Ct. at 2535; Davis, 547
U.S. at 820, 126 S.Ct. at 2272.
Nevertheless, the Supreme Court held that the
admission of this statement, without the
opportunity to cross-examine the person who
made it, violated the confrontation clause.
Mel‚ndez-D¡az, 129 S.Ct. at 2535; Davis, 547
U.S. at 830-32, 126 S.Ct. at 2278-79.
More importantly, the Mel‚ndez-D¡az
Court pointed out that this supposed
exception for witnesses who make
contemporaneous observations would eliminate
a defendants right to confront a good deal of
police testimony as well for example, a
police officers on-the-scene description
(spoken into a recording device, or
contemporaneously jotted down in a notebook)
of what the officer observed when he or she
responded to a reported crime. 129 S.Ct. at
2535.
In sum, the Court in Mel‚ndez-D¡az
firmly rejected the contention that the
confrontation clause somehow does not apply
to testimony concerning the scientific
testing and analysis of substances. However,
the decision in Mel‚ndez-D¡az does not
provide firm guidance regarding the scope of
the confrontation that is required when the
government relies on evidence of scientific
testing or analysis.
This question is a difficult one
because many types of experts not just DNA
analysts, but also doctors, pathologists,
serologists, and psychiatrists routinely
rely on the results of chemical, physical, or
psychological testing performed by other
people.
As we explained above, Evidence
Rule 703 was expressly intended to allow such
expert witnesses to offer opinions based on
testing data generated by other people, and
to allow the experts to explain their
opinions to the trier of fact by openly
referring to this testing data. And, as we
also explained above, Vann essentially
concedes that Dudas testimony concerning
Cohens test results was admissible under Rule
703 to explain the basis for Dudas expert
conclusions.
The question posed in this appeal
is whether, under Mel‚ndez-D¡az, the Sixth
Amendment right of confrontation limits the
scope of expert testimony otherwise
authorized by Evidence Rule 703 when this
type of evidence is introduced by the
government against the defendant in a
criminal case.
A survey of the case law on this issue
Several courts have already issued decisions
addressing the relationship between the
confrontation clause and the admissibility of
expert testimony that rests on information or data
provided or generated by other people. A good
many of these court opinions have been issued
within the last several months, in litigation
prompted by the Supreme Courts decision in
Mel‚ndez-D¡az. But even before Mel‚ndez-D¡az,
several courts recognized that the Supreme Courts
decision in Crawford potentially affected the
admissibility of expert testimony when the experts
opinion is based on information or data obtained
from other people.
Some of the pre-Mel‚ndez-D¡az decisions are
now questionable most notably, the California
Supreme Courts decision in People v. Geier, 161
P.3d 104, 61 Cal.Rptr.3d 580 (Cal. 2007).
In Geier, the California court held that
hearsay evidence of DNA test results was not
testimonial for purposes of Crawford. 161 P.3d at 138,
61 Cal.Rptr.3d at 620. In reaching this conclusion,
the California court heavily relied on two principles
that were later rejected in Mel‚ndez-D¡az: first, the
notion that evidence of laboratory testing is not
accusatory, Geier, 161 P.3d at 140, 61 Cal.Rptr.3d at
622; and second, the notion that a laboratory analysts
report is merely a collection of contemporaneous
observations, Geier, 161 P.3d at 139-140, 61
Cal.Rptr.3d at 620-21.
As one panel of the California Court of
Appeal recently observed in People v. Ben¡tez, __
Cal.Rptr.3d __, 2010 WL 625414 (Cal. App. 2010), given
the fact that both of these premises were expressly
rejected by the United States Supreme Court in Mel‚ndez-
D¡az, [r]eliance on Geier as authority for permitting a
substitute witness to testify [about] otherwise
inadmissible scientific reports would be misplaced.
Ben¡tez, 2010 WL 625414 at *5.
In contrast to the California Supreme Courts
decision in Geier, many courts (in decisions issued
both before and after Mel‚ndez-D¡az) have recognized
that hearsay testimony about the results of laboratory
or other scientific testing can be testimonial hearsay
for confrontation clause purposes and, as a
consequence, these courts have addressed the
relationship between a defendants confrontation rights
and the admissibility of expert testimony under rules
equivalent to our Evidence Rule 703.
We have examined many of these decisions, and
the rule that emerges from them is essentially the rule
stated by the Michigan Court of Appeals in a pre-
Mel‚ndez-D¡az decision, State v. Lonsby, 707 N.W.2d 610
(Mich. App. 2005).
In Lonsby, the government called one
serologist, Woodford, to testify about serum testing
that had actually been conducted by another serologist,
Jackson. As explained by the Michigan court, Woodfords
testimony was basically a summary of Jacksons written
report and, for that reason, the Michigan court
concluded that the presentation of Woodfords testimony
violated the defendants right of confrontation. 707
N.W.2d at 621. The Michigan court declared:
The critical point [in our confrontation
clause analysis] is the distinction between
an expert who [offers] an opinion based in
part on the work of others and an expert who
merely summarizes the work of others. ...
[O]ne expert cannot act as a mere conduit for
the opinion of another.
Lonsby, 707 N.W.2d at 621 n. 12 (citation
omitted).
Or, as recently stated by the North
Carolina Court of Appeals in State v. Conley,
unpublished, 2010 WL 157554, *5 (N.C. App.
2010),
[I]f an expert is merely offering the opinion
of another non-testifying expert via a
testimonial document, the Confrontation
Clause is [implicated], and the Crawford
safeguard of ... cross-examination applies.
If [on the other hand] an expert is
presenting an independent analysis, subject
to the rigors of cross-examination on the
experts own thoughts and conclusions, then
the Confrontation Clause is satisfied[.]
This theme that the confrontation
clause bars the government from calling an
expert witness whose testimony is a mere
conduit for the analysis and conclusions
reached by another, absent expert witness
runs throughout the appellate decisions on
this issue. And, with the exception of a
group of California Court of Appeal decisions
that still adhere to Geier,6 this conduit
limitation explains the results reached by
the courts from other states.
In other words, when the
governments expert is simply a conduit for an
absent witnesss analysis, courts find a
violation of the confrontation clause; but
when the governments expert offers their own
analysis, based in part on test data obtained
from other people, courts find that the
confrontation clause is satisfied.
We have found several cases where
courts concluded that a defendants right of
confrontation was denied when the live
witnesss testimony simply recapitulated (and
sometimes vouched for) the analysis performed
by an absent witness. See Commonwealth v.
Depina, 922 N.E.2d 778, 787 (Mass. 2010);
State v. Locklear, 681 S.E.2d 293, 304-05
(N.C. 2009); State v. Galindo, 683 S.E.2d
785, 787-88 (N.C. App. 2009); United States
v. Tran, 18 F.3d 1132, 1143 (4th Cir. 1994)
(sometimes erroneously referred to as United
States v. Cuong).7
On the other hand, numerous courts
have concluded that a defendants right of
confrontation is satisfied when an expert
witness offers their own analysis or
conclusion, even when that analysis or
conclusion is based on test results derived
from testing performed by someone else.
This principle has been applied in
drug cases that is, cases like Mel‚ndez-D¡az
where the governments case rested on
identifying a particular substance or item as
a controlled substance: see Carolina v.
State, __ S.E.2d __, 2010 WL 103823, *2 (Ga.
App. 2010); State v. Hough, __ S.E.2d __,
2010 WL 702458, *5-7 (N.C. App. 2010); United
States v. Turner, 591 F.3d 928, 933-34 (7th
Cir. 2010); and United States v. Moon, 512
F.3d 359, 361-62 (7th Cir. 2008), cert.
denied, __ U.S. __, 129 S.Ct. 40, 172 L.Ed.2d
19 (2008).
Moon, in particular, contains the
most forthright presentation of this rule.
The Seventh Circuit declared that a reviewing
forensic chemist [is] entitled to analyze the
data ... obtained [by another chemist], that
the Sixth Amendment does not demand that a
chemist or other testifying expert have done
the lab work himself, and that instrument
readouts are not testimonial statements. 512
F.3d at 362.
Similarly, in cases where the trier
of fact must ascertain the cause of someones
death, courts have allowed medical examiners
to give their opinion concerning the cause of
death even though that opinion was based on
the physical observations and laboratory
results of an autopsy performed by another
person: see United States v. De La Cruz, 514
F.3d 121, 132-34 (1st Cir. 2008); People v.
King, unpublished, 2010 WL 98693, *3-6 (Mich.
App. 2010).
And finally, in cases like Vanns,
where the government attempts to prove the
identity of the culprit through DNA analysis,
courts have allowed DNA analysts to give
their opinion of the significance of DNA test
results even when those test results were
obtained from testing performed by another
laboratory analyst: see People v. Johnson,
915 N.E.2d 845, 851-55 (Ill. App. 2009);
Pendergrass v. State, 913 N.E.2d 703, 707-08
(Ind. 2009); People v. Dail, 894 N.Y.S.2d 78,
80 (N.Y. App. 2010); State v. Mobley, 684
S.E.2d 508, 511-12 (N.C. App. 2009); State v.
L¢pez, unpublished, 2010 WL 703250, *7-8, *11-
12 (Ohio App. 2010); United States v.
Richardson, 537 F.3d 951, 960 (8th Cir.
2008), cert. denied, __ U.S. __, 129 S.Ct.
2378, 173 L.Ed.2d 1299 (2009).
Why we conclude that the admission of the challenged
testimony did not violate Vanns right of
confrontation
If we analyze Vanns case under the rule
discussed in the preceding section of this opinion
that is, if we draw the constitutional dividing
line between expert testimony that is merely a
conduit for someone elses analysis versus expert
testimony in which the live witness offers their
own independent analysis then the testimony that
Vann challenges in this appeal was properly
admitted.
As explained above, during Cheryl Dudas
testimony, she fully explained the DNA testing
procedures employed by the State Crime Lab. In
particular, Duda explained that the final stage of the
testing process was to run the DNA sample through a
machine the ABI-310 Genetic Analyzer that chemically
reads the genetic contents of the DNA and produces a
printout (in graph form) of the results. Using this
graph, a DNA analyst will identify the particular
alleles that are present in the tested DNA at
particular locations (or will determine that it is
impossible to ascertain the identity of the alleles at
one or more specific locations). Then, armed with this
knowledge, the DNA analyst will determine (1) whether
the sample contains DNA from only one person, or more
than one person, and (2) whether the genetic profile
found in the DNA can be linked to the genetic profile
of another DNA sample (in this case, the known samples
obtained from Vann and from the victim).
Duda further testified that, with respect to
the two DNA samples that were tested by Jessica Cohen,
Duda checked Cohens bench notes to make sure that Cohen
followed the proper testing protocols when she prepared
the samples for testing in the ABI-310 Genetic
Analyzer. Duda then examined the test results
themselves the printed-out graphs produced by the ABI-
310 Genetic Analyzer to see if she came to the same
conclusions that Cohen did with respect to (1)
identifying the genetic profiles present in the two DNA
samples, and (2) determining whether those genetic
profiles matched either Vann or the victim.
Duda then described her own analysis of the
printed-out test results from those two samples: her
conclusion that the sample from the victims panty liner
failed to provide sufficient genetic information to
establish a match with either Vann or the victim, but
that the sperm sample from the victims body was a
complete match of Vanns genetic profile.
Given this record, it is clear that Duda was
not merely the conduit for Cohens opinion. Indeed,
Cohens opinion regarding the test results was mentioned
only in passing. The jury would clearly understand
that the opinions and analysis offered by Duda were her
own opinions and analysis, based on her independent
examination of the test results produced by the ABI-310
Genetic Analyzer.
Because Dudas testimony is clearly admissible
under the conduit versus independent analysis rule that
we have derived from the case law, the sole remaining
issue before this Court is whether we should follow
this rule in other words, whether this rule is
consistent with the Supreme Courts decisions in
Crawford and Mel‚ndez-D¡az. It is true that a good
number of appellate courts believe that this test is
consistent with the Supreme Courts interpretation of
the confrontation clause. But the fact that other
courts believe this does not absolve this Court of our
independent duty to assess the constitutionality of the
test.
As we are about to explain, we conclude that
the conduit versus independent analysis rule is
consistent with the Sixth Amendment right of
confrontation if and only if the rule is applied with
due regard to the concerns that underlie the right of
confrontation.
At the outset, we acknowledge that it may
sometimes be difficult, in a particular case, to
distinguish between expert testimony that is a conduit
for someone elses analysis and expert testimony that
presents the witnesss own independent analysis. The
label that a court attaches to the experts testimony
is, in fact, only a shorthand way of expressing the
courts conclusion as to whether cross-examination of
that one witness will satisfy the defendants right of
cross-examination, or whether (instead) the government
must produce one or more additional witnesses. Thus,
the correct categorization of a witnesss testimony will
necessarily hinge on the precise issues being litigated
and the content of the witnesss testimony.
We note that one of the Supreme Courts key
concerns in Mel‚ndez-D¡az was the possibility of
mistaken, improper, or even fraudulent scientific
testing. The Court cited one study of false
convictions that is, a study of cases in which
exonerating evidence later showed that the defendant
was improperly convicted which concluded that invalid
forensic testimony contributed to [these false]
convictions in 60% of the cases. 129 S.Ct. at 2537.
As stated in Justice Scalias lead opinion,
[c]onfrontation is designed to weed out [both] the
fraudulent analyst [and] the incompetent one, and to
reveal an analysts lack of proper training or
deficiency in judgment. Ibid.
In explaining why Mel‚ndez-D¡az had been
denied his right of confrontation, Justice Scalia noted
that the certificates of analysis introduced by the
government did not [reveal] what tests the analysts had
performed, whether those tests were routine, and
whether [the interpretation of] their results required
the exercise of judgment or the use of skills that the
analysts may not have possessed. Ibid. In addition,
cross-examination could have illuminated the potential
sources of error in either the testing procedures or
the interpretation of the test results. 129 S.Ct. at
2537-38.
These, then, are the concerns that must be
given paramount importance when a court applies the
conduit versus independent analysis test. If this test
is to lead to results that are consistent with the
Sixth Amendment right of confrontation, a court must
bear these concerns in mind when deciding whether an
experts testimony should be categorized as a mere
conduit for another experts analysis, or whether that
testimony should be viewed as presenting the witnesss
independent analysis.
And, at least with regard to the situation
presented in Vanns case i.e., cases where the
government presents the testimony of a DNA analyst to
establish the defendants identity as the perpetrator of
a crime we disavow the suggestion found in some of the
cases that a defendant has no right to confront the
person who performed the DNA testing because the DNA
test results are only being introduced to explain the
basis for the DNA analysts opinion, rather than being
introduced for the truth of the matter asserted.
It is true, as a matter of technical evidence
law, that when an expert testifies under the authority
of Evidence Rule 703 about the underlying information
or data that they have relied on to form their opinion,
this underlying information or data need not be
independently admissible, and the experts testimony
about the factors underlying their opinion is not
introduced for the truth of the matters asserted.8
But, as a practical matter, there are times when the
experts opinion has essentially no probative value
unless the jury assumes the truth of some or all of
this underlying information or data. For this reason,
when the underlying facts or data are not otherwise
admissible, Evidence Rule 705(c) directs the trial
judge to prohibit the expert from testifying about
these underlying matters if the danger that [the
experts testimony concerning these matters] will be
used for an improper purpose outweighs their value as
support for the experts opinion.
According to the Commentary to Alaska
Evidence Rule 705(c), the danger spoken of here is the
danger that the jury might ... use the facts or data as
the basis for an independent judgment on issues in
[the] case. In other words, the danger is that the
jury will view the experts testimony about these
underlying facts or data as proof that this information
is true, or that it was derived in a scientifically
valid manner. See Guerre-Chaley v. State, 88 P.3d 539,
543-44 (Alaska App. 2004).
This danger is especially acute in DNA
analysis cases. It is true that one must have
expertise to make an informed judgement as to whether
there is a match between the genetic profile derived
from testing an evidentiary sample and the genetic
profile of a particular person (whether suspect or
victim) derived from a known sample. But the real
probative force of the experts testimony hinges on the
accuracy of the test results: if those test results
are false or mistaken, then the experts opinion as to
whether those test results match the genetic profile of
a particular person has essentially no value.
We now use these principles to re-examine the
testimony given by Cheryl Duda in Vanns case.
As we noted earlier, Duda fully explained the
DNA testing procedures employed by the State Crime Lab
the process of identifying one or more genetic profiles
from a particular DNA sample. In particular, Duda
explained that the final stage of the testing process
was to run the DNA sample through a machine the ABI-
310 Genetic Analyzer that chemically reads the genetic
contents of the DNA and produces a printout (in graph
form) of the results.
Duda explained how a DNA analyst uses this
graph to identify the particular alleles that are
present in the tested DNA at particular locations (or
to determine that it is impossible to ascertain the
identity of the alleles at one or more specific
locations). Then, based on these test results, the DNA
analyst will attempt to determine (1) whether the
sample contains DNA from only one person, or more than
one person, and (2) whether the genetic profile found
in the DNA can be linked to the genetic profile of
another DNA sample (in this case, the known samples
obtained from Vann and from the victim).
In particular, Duda testified that after she
obtains the print-outs from the ABI-310 Genetic
Analyzer, she uses these graphs to identify the genetic
profiles contained in the DNA samples, and then she
compiles this information in a chart that allows her to
compare the genetic profiles and make [her]
interpretations. Duda explained that it was important
for her to preserve the graph results from the Genetic
Analyzer, as well as the chart summarizing those
graphs, so that a second DNA analyst could review her
work and independently decide whether she had
accurately interpreted the test results. Duda
described this peer review process as absolutely
essential in our laboratory.
After Duda testified about her analysis of
the three DNA samples that she personally tested, Duda
then turned to the two samples that her colleague
Jessica Cohen tested. Duda explained that she had seen
(and had signed) Cohens report before it left the lab,
because she was the peer reviewer of Cohens results.
Duda testified that she examined the report to make
sure that there was no indication that Cohen had
deviated from the Crime Labs testing protocols. Then
Duda [went] through all of [Cohens] electronic data
that is, the printed-out test results from the ABI-310
Genetic Analyzer and made sure that [she, i.e., Duda]
came to the same [genetic] typing results that [Cohen]
did.
Duda explained that her peer review of Cohens
analysis was structured in such a way as to produce a
second, independent analysis of the machine results
that the Crime Labs review procedures were designed to
make sure that each of us comes up with the same
findings [independently] before a DNA analysis report
is approved for release. For that reason, Duda
independently assessed Cohens work product from the
point where the instrument spit[] out the data for us.
Duda then described her own analysis of the
printed-out test results from the two samples that
Cohen tested. Duda testified that, in her opinion, the
sample from the victims panty liner failed to provide
sufficient genetic information to establish a match
with either Vann or the victim, but that the sperm
sample from the victims body was a complete match of
Vanns genetic profile.
Given this record, we conclude that the State
was not required to present Jessica Cohen as a witness,
and that Vanns right of confrontation was satisfied
when he was given the opportunity to cross-examine
Cheryl Duda. By cross-examining Duda, Vann had a fair
opportunity to explore the type of testing that was
performed and the procedures that were used in that
testing. This cross-examination also gave Vann the
opportunity to identify or highlight any potential
sources of error in the testing and any potential for
misinterpretation of the test results. Finally, and
perhaps most important, it was clear from Dudas
testimony that the opinions and conclusions she offered
to the jury were her own interpretation of the printed
test results produced by the machine.
It is true that, with regard to Cohens
preparation of the DNA sample and Cohens act of placing
or introducing that sample into the ABI-310 Genetic
Analyzer, all that Duda could say was that Cohens bench
notes showed no deviation from the Crime Labs
protocols. There was the potential, at least, that
Cohen had either inadvertently or intentionally
deviated from the prescribed protocols, but then had
written her bench notes as if the proper procedures had
been followed.
We do not say that this possibility of
testing error should be ignored, or that it is
necessarily insignificant. But we believe that this is
the type of problem that the Mel‚ndez-D¡az court
intended to cover in footnote 1 of its opinion:
Contrary to the dissents suggestion,
post, [129 S.Ct.] at 2544-2545, 2546 (opinion
of Kennedy, J.), we do not hold ... that
anyone whose testimony may be relevant in
establishing the chain of custody,
authenticity of the sample, or accuracy of
the testing device, must appear in person as
part of the prosecutions case. While the
dissent is correct that [i]t is the
obligation of the prosecution to establish
the chain of custody, post, at 2546, this
does not mean that everyone who laid hands on
the evidence must be called. As stated in
the dissents own quotation, ibid., from
United States v. Lott, 854 F.2d 244, 250
(C.A.7 1988), gaps in the chain [of custody]
normally go to the weight of the evidence
rather than its admissibility. It is up to
the prosecution to decide what steps in the
chain of custody are so crucial as to require
evidence; but what testimony is introduced
must (if the defendant objects) be introduced
live. Additionally, documents prepared in the
regular course of equipment maintenance may
well qualify as nontestimonial records. See
infra, at 2550-2551, 2552.
Mel‚ndez-D¡az, 129 S.Ct. at 2532 n.1
(emphasis in the original).
In other words, there is always the
possibility that, during the procedures
leading up to the actual testing of a DNA
sample in the ABI-310 Genetic Analyzer (or
equivalent device), the sample was
misidentified or contaminated or improperly
prepared for testing. But these matters fall
within the rubric of Evidence Rule 901(a),
which requires the authentication of physical
evidence in criminal cases if that evidence
is susceptible to adulteration,
contamination, modification, tampering, or
other changes in form attributable to
accident, carelessness, error[,] or fraud.
(This requirement is often referred to as
chain of custody.)
As noted in the Mel‚ndez-D¡az
footnote, and as confirmed by Alaska cases on
this subject, Evidence Rule 901 does not
require the State to bring forward every
witness who had custody of, or contact with,
the physical evidence in question, nor does
it require the State to affirmatively negate
every conceivable possibility of mishandling
or tampering.9 Under Alaska case law, the
States failure to produce Jessica Cohen as a
witness to describe her handling and
preparation of the DNA sample might affect
the weight or credibility of Dudas analysis
of the test results, but it does not bar the
admission of Dudas testimony on this subject.
And we interpret the Mel‚ndez-D¡az footnote
to mean that the confrontation clause did not
require the State to produce Jessica Cohen to
testify about her pre-testing handling and
preparation of the DNA sample, so long as the
analysis of the test results was performed by
Duda, a witness who did appear before the
trier of fact and was subject to cross-
examination.
Whether the prosecutors comment on Vanns refusal to
voluntarily submit to a physical examination requires
reversal of Vanns convictions
Vann raises one additional claim of error.
In the prosecutors opening statement at Vanns trial,
the prosecutor told the jury that, during the
investigation of the case, the State obtained two
search warrants one warrant to search Vanns vehicle,
and the other warrant requiring Vann to submit to a
physical examination for evidence pertinent to a charge
of sexual assault. The prosecutor then added that Vann
had refused to go with the state troopers to submit to
the physical examination until he was served with the
warrant:
Prosecutor: Youre going to hear that
Mr. Vann, even with the assurances of [two
state troopers, who] told him what was going
on theres a sexual assault investigation in
Seward, theyd like you to come down for this
examination and ... he repeatedly refused to
[go with them] until it essentially got down
to the point where hes confronted with ... a
court order that says you have to do it, and
you will go. And eventually he does go,
after repeated refusals to submit to [the]
examination.
Vanns attorney did not object to the
prosecutors comments at the time, and the
trial judge did not sua sponte caution the
prosecutor or issue a curative instruction.
This issue arose again during the
testimony of the principal investigating
officer. On cross-examination, Vanns
attorney had the officer confirm that he
obtained a search warrant to gather bodily
evidence from Vann, and that obtaining a
warrant in cases like this was routine. On
redirect, the prosecutor tried to elicit
testimony that the police do not always need
to get a warrant that sometimes an
individual who is under investigation will
cooperate and voluntarily submit to an
examination without a warrant.
Specifically, the prosecutor
attempted to ask the officer, [I]n fact, you
dont always have to get a warrant, right? If
the individual ... . But before the
prosecutor could finish this question, Vanns
attorney objected. A largely indiscernible
bench conference ensued. When the bench
conference concluded, the prosecutor
announced that he had no further questions
for the officer.
Later, just before the testimony of
a state trooper involved in the
investigation, the prosecutor informed the
trial judge that he intended to ask the
trooper whether Vann voluntarily submitted to
the physical exam. The prosecutor argued
that Vanns refusal to submit voluntarily was
relevant because it demonstrated his
consciousness of guilt. Vanns attorney again
objected, and the trial judge sustained the
defense attorneys objection; that is, the
trial judge barred the prosecutor from asking
the trooper about Vanns refusal to submit to
the physical examination voluntarily. The
judge ruled that this proposed testimony
would infringe Vanns Fifth Amendment rights,
and that any potential probative value of
this evidence was outweighed by its potential
for unfair prejudice.
On appeal, Vann argues that his
conviction should be reversed because of the
prosecutors comment during opening statement
that Vann declined to submit to a physical
examination until he was confronted with the
search warrant. Vann concedes that when the
prosecutor attempted to introduce this fact
into evidence (through the testimony of the
two law enforcement officers), the trial
judge sustained both of Vanns objections and
refused to let the prosecutor elicit this
testimony. Vann further concedes that he
made no objection when the prosecutor
mentioned this matter in his opening
statement. Vann nevertheless argues that his
conviction must be reversed because the trial
judge never directed the jury not to consider
the [prosecutors comment] in ... opening
statement that Mr. Vann did not submit
voluntarily to the exam.
Because Vanns attorney made no
objection to the challenged remark, Vann must
now show plain error. Vann has satisfied the
first part of the test for plain error: it
was plainly improper for the prosecutor to
ask the jury to infer Vanns guilt from the
fact that Vann insisted on his right not to
voluntarily cooperate in the physical
examination that the police wished to
conduct.10
But the obviousness of the error
cuts both ways here. As we have explained,
the defense attorney objected both times when
the prosecutor attempted to elicit testimony
(through the two law enforcement officers) of
Vanns refusal to voluntarily submit to the
examination. This shows that the defense
attorney was well aware of the law on this
point; in other words, the error was obvious
to him.
After the trial judge sustained the
defense attorneys objections, it was clear
that the trial judge concurred with the
defense attorney that this sort of evidence
was not admissible. At that point, the
defense attorney might have sought to remedy
the objectionable portion of the prosecutors
opening statement by asking the trial judge
to give a curative instruction to the jury:
an admonition that Vann had a constitutional
right to insist on a warrant before he
submitted to the physical examination, and
that it would be improper for the jury to
draw any adverse inference from the fact that
Vann chose to exercise this right.
But Vann never asked the trial
judge for this type of instruction, or for
any other relief to cure the prosecutors
improper remarks during opening statement.
Instead, Vann waited until this appeal to
present this claim as a reason to reverse his
convictions.
Under Alaska law, when a defendant
presents a claim of plain error, the
defendant must negate the possibility that
their attorneys failure to make a timely
objection in the trial court was the product
of a tactical decision.11 Moreover, when the
record is silent or ambiguous on this point,
courts apply a presumption that the defense
attorneys action (or, more precisely,
inaction) was tactical.12
As we noted earlier, Vanns attorney
elicited testimony from the States lead
investigator that it was routine to get a
search warrant for a physical examination in
cases like this, and the defense attorney
prevented the prosecutor from eliciting
evidence that suspects often voluntarily
submitted to such examinations. The defense
attorney may have concluded that this was a
sufficient response to the false step in the
prosecutors opening statement.
In addition, as we have also noted,
there is a distinct possibility that the
defense attorney made a tactical decision to
refrain from asking the trial judge for a
cautionary instruction or some other type of
relief.
We do not draw this inference from
the fact that the defense attorney failed to
object when the prosecutor made the improper
comment during his opening statement.
Rather, the inference of tactical choice
arises from occurrences later at Vanns trial.
As we have explained, when the prosecutor
attempted to introduce evidence of Vanns
refusal to voluntarily submit to the
examination, the defense attorney immediately
objected and was successful (twice) in
blocking the State from introducing this
evidence. This shows that the defense
attorney was well aware that this evidence
was improper, and that the attorney was quite
capable of asserting Vanns rights on this
issue.
One might suppose that the defense
attorney, having twice blocked the
prosecutors efforts to introduce testimony on
this point, would then ask the trial judge to
take action to remedy the fact that the
prosecutor had promised during his opening
statement to produce this evidence. And, as
we have explained, the problem was seemingly
easy to cure with a jury instruction. Given
these circumstances, the defense attorneys
failure to seek relief from the trial judge
could well have been tactical: either the
defense attorney decided that it would be
counter-productive to ask the trial judge to
take action that would remind the jurors of
the objectionable portion of the prosecutors
opening statement, or the defense attorney
conceivably chose to leave this issue on the
table as a potential ground for appeal,
rather than asking the trial judge to take
curative measures before the case was
submitted to the jury.
Moreover, we conclude that Vann has
failed to satisfy the final element of a
claim of plain error: proof that the error
was so manifestly prejudicial to the fairness
of the trial that failure to correct the
error would perpetuate manifest injustice.13
Here, the error consists of a small
portion (two sentences) of a lengthy opening
statement that was merely the opening act of
an eight-day trial. When the prosecutor
attempted to introduce evidence to support
this statement, the defense successfully
blocked the attempt. Thus, the jury heard no
evidence that Vann had declined to submit to
the examination, and the prosecutor did not
mention this subject during his summation to
the jury at the end of the trial.
Moreover, the jurors were
instructed (in Jury Instruction 37) to
disregard the factual assertions of counsel
to the extent that those assertions were not
supported by the evidence:
[A]rguments of counsel are not evidence and
cannot be considered as such. It is your
duty to give careful attention to the
arguments of counsel, if they are based upon
the evidence and upon the law as given to you
by me in these instructions. But arguments
of counsel, if they depart from the facts or
from the law, should be disregarded.
Vann argues that even though the
trial judge sustained his objection to the
prosecutors uncompleted question, [I]n fact,
you dont always have to get a warrant, right?
If the individual ... ., the jurors
nevertheless heard the prosecutors incomplete
question, and thus the jurors would have
assumed (from the prosecutors words) that
defendants sometimes voluntarily submit to
this type of examination.
But Vanns argument ignores the fact
that the trial judge gave a cautionary
instruction to the jurors addressing this
very issue. That instruction read: When I
sustain an objection to a question addressed
to a witness, you must disregard the question
entirely, and may not draw any inference from
the wording of it, nor speculate as to what
the witness would have said if permitted to
answer the question.
For all of these reasons, we
conclude that the prosecutors comment, albeit
improper, does not rise to the level of plain
error, and thus does not require reversal of
Vanns convictions.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Citing Crawford v. Washington, 541 U.S. 36, 51; 124 S.Ct.
1354, 1364; 158 L.Ed.2d 177 (2004).
2 See the first sentence of the Commentary to Alaska Evidence
Rule 703.
3 Stephen A. Saltzburg, Michael M. Martin, and Daniel J.
Capra, Federal Rules of Evidence Manual (9th ed. 2006), Vol.
3, p. 7034.
4 Ibid.
5See, for example, the Associated Press story dated March 23,
2010, written by Jean Ortiz, reporting that the head of
the Douglas County, Nebraska forensic crime scene
investigation unit was convicted of evidence tampering
for plant[ing] blood from a slaying victim in a car
linked to two innocent suspects[,] to bolster the case
against them. The full text of this story is available
at:
http://seattletimes.nwsource.com/html/nationworld/2011417037_ap
uscsibloodevidence.html
6See, e.g., People v. Green, unpublished, 2010 WL 822583,
*3-4 (Cal. App. 2010); People v. Col¢n, unpublished,
2010 WL 612245, *17-18 (Cal. App. 2010); People v.
Gutierrez, 99 Cal.Rptr.3d 369, 375-78 (Cal. App. 2009);
People v. Rutterschmidt, 98 Cal.Rptr.3d 390, 412-13
(Cal. App. 2009).
But see People v. Jones, unpublished, 2010 WL 797605, *6-9
(Cal. App. 2010), in which the court declared that it
was following Geier, but the court abandoned Geiers
rationale. Instead, the court re-interpreted Geier as
standing for the rule that we adopt here the rule that
a supervisor from a lab that conducted DNA tests can
render her own independent opinion ... based on the
results of lab tests conducted by an analyst employed
at the lab, so long as the supervisor is subject to
full cross-examination by the defendant. Jones, 2010
WL 797605 at *8. This same re-interpretation of Geier
was employed in In re T.F., unpublished, 2010 WL
926069, *4 (Cal. App. 2010).
And see People v. Lopez, 98 Cal.Rptr.3d 825 (Cal. App. 2009),
and People v. Dungo, 98 Cal.Rptr.3d 702 (Cal. App.
2009), both holding that Mel‚ndez-D¡az overruled Geier.
7The defendant in this case was a doctor named Tran Trong
Cuong. In Southeast Asian names, the family name comes
first. Thus, the defendant was Dr. Tran, and the case
name is properly United States v. Tran. However,
several courts have cited this case as United States v.
Cuong interpreting the defendants name as if it were a
European name.
8 See Guerre-Chaley v. State, 88 P.3d 539, 541-42 (Alaska App.
2004); Broderick v. Kings Way Assembly of God, 808 P.2d
1211, 1216 (Alaska 1991).
9See, e.g., Wright v. State, 501 P.2d 1360, 1372 (Alaska
1972); Houston-Hult v. State, 843 P.2d 1262, 1266-67
(Alaska App. 1992).
10 See Padgett v. State, 590 P.2d 432, 434-35 (Alaska 1979);
Bargas v. State, 489 P.2d 130, 132 (Alaska 1971).
11 Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993),
citing Massey v. State, 771 P.2d 448, 453 (Alaska App.
1989) (unless the record precludes the possibility that
counsels actions may have been tactical, a finding of
plain error is rarely appropriate).
12 Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).
13 See Hosier v. State, 1 P.3d 107, 112 (Alaska App. 2000);
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985);
Roberts v. State, 680 P.2d 503, 507 (Alaska App. 1984).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
