Opinion
B185940
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO BARBA, Defendant and Appellant.
Marilee Marshall & Associates and Marilee Marshall, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Joseph P. Lee and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA042750)
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed.
Marilee Marshall & Associates and Marilee Marshall, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Joseph P. Lee and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Antonio Barba appeals from the judgment entered after a jury convicted him of first degree murder. We reject his contentions that the prosecutor improperly challenged a prospective juror due to his race and that the court erred by admitting certain evidence on DNA findings and evidence on some of Barba's jailhouse conversations, and therefore affirm the judgment.
In November 2007, we issued our first opinion in this matter, affirming the judgment. (People v. Barba (Nov. 21, 2007, B185940) [nonpub. opn.] (Barba I).) On June 29, 2009, the United States Supreme Court granted Barba's petition for certiorari, vacated our earlier decision, and remanded the case to us with directions to reconsider our decision in light of its holding four days earlier in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ (Melendez-Diaz), which concerned a defendant's constitutional right to confront adverse witnesses where the results of scientific tests were involved.
On remand, we affirmed again, distinguishing this case from Melendez-Diaz because the disputed DNA test report was admitted as part of the basis for the independent opinion of another expert witness. (People v. Barba (Feb. 21, 2009, B185940) [nonpub. opn.] (Barba II).) We also concluded that even if the report should not have been admitted in evidence, the error was harmless. Even though the only issue before us on remand was the applicability of Melendez-Diaz, because our entire decision in Barba I had been vacated, we restated our discussion as to the other issues that had been before us.
On June 28, 2011, the United States Supreme Court granted a new petition for certiorari from Barba, vacated our decision in Barba II, and remanded the case to us with directions to reconsider our decision in light of its holding in Bullcoming v. New Mexico (2011) 564 U.S. ___ (Bullcoming), which considered whether a
defendant's constitutional confrontation rights were violated by having someone other than the person who conducted a laboratory analysis testify about the results and report of the person who actually conducted the test.
As with Barba II, although the United States Supreme Court has directed us to reconsider our decision only in light of Bullcoming, because it vacated our decision in Barba II, in Parts 5 through 7 of our Discussion, we restate our analysis and holding from Barba I and Barba II as to the issues not implicated by Bullcoming.
FACTS AND PROCEDURAL HISTORY
The statement of facts is taken in large part from our previous decisions in Barba I and Barba II.
Cab driver Keum Kim was robbed and stabbed to death by a fare he had driven from Santa Monica to Venice in the early morning hours of July 8, 2001. Kim was dispatched in response to a phone call from a man identifying himself as Sergio who said he needed a ride to Brooks Street in Venice and wondered whether the driver might have change for a $50 bill. The murder was witnessed by a man who had stopped his car behind Kim's parked cab at the 800 block of Brooks Street. The witness saw Kim and the passenger struggle and then saw the passenger run from the cab into some nearby bushes. The passenger's blue, hooded sweatshirt was covered with blood. However, the witness did not see the passenger clearly and was therefore unable to identify him. A search of the area by the police turned up a bloody kitchen knife and a dark sweatshirt covered with blood. DNA testing of blood samples from those two items showed the blood was Kim's.
On July 25, 2001, Los Angeles Police Detective Paul Inabu received an anonymous phone call from a woman who claimed Antonio Barba had killed Kim. After getting a search warrant, Inabu searched Barba's apartment, which was right near the spot where "Sergio" asked the taxi dispatcher to have Kim pick him up. The search turned up a knife that was identical to the murder weapon, but found no physical evidence linking Barba to the crime.
A police criminalist removed some hairs from the bloody sweatshirt and sent them to Orchid Cellmark (Cellmark), a DNA testing lab. A November 2001 test by Cellmark analyst Linda Wong produced no interpretable results from the hair samples. In February 2002, a police criminalist retrieved more hairs from the sweatshirt. Although they were not initially considered suitable samples for DNA testing, the hair was eventually sent on to Cellmark for a testing process that involved combining the hairs. When that was accomplished, there was only enough DNA to analyze nine genetic locations, not the 13 typically examined by Cellmark. Six of them were consistent with Barba's DNA profile.
We state the facts concerning the DNA evidence in more detail in part 1. of our Discussion, post.
Barba was charged with murder and robbery, but a hung jury led to a mistrial in February 2004. Barba was retried starting in August 2004. Cellmark's lab director, Dr. Jennifer Reynolds, testified for the prosecution about DNA evidence in general and about the results of the tests performed by Wong, who no longer worked for Cellmark. Reynolds acknowledged that hair samples sent for testing could, in the abstract, have become contaminated from saliva, skin, blood, mishandling by the lab, and the failure to wash samples. Such contamination was always a possibility, she testified. Wong's notes did not indicate that she had washed the hairs that yielded the positive test results for Barba's DNA. The defense introduced evidence of several unrelated instances of lab contamination by police criminalists, along with evidence of 53 reported control discrepancies at Cellmark between March 2001 and December 2002.
The jury convicted Barba of first degree murder (Pen. Code, § 187, subd. (a)), but deadlocked on the robbery count (Pen. Code, § 211), which was then dismissed. Barba was given a sentence of life without possibility of parole, plus one year.
In Barba I, Barba contended: (1) the court committed error by denying his motion which charged that the prosecutor peremptorily challenged an African-American prospective juror because of his race; (2) the court erred by allowing in evidence the anonymous phone tip and portions of Barba's jailhouse conversations that were recorded by the police; and (3) the DNA evidence was inadmissible because the test results were hearsay and because allowing Reynolds to testify about Wong's test results violated his constitutional right to confront the witnesses against him. We affirmed the judgment as to all three issues. As noted, the only issue before us on remand is whether the confrontation clause was violated by allowing in evidence the testimony of Reynolds and the report prepared by Wong, concerning the DNA test results.
See footnote 1., ante.
As noted above, the United States Supreme Court directed us to reconsider the latter portion of our decision in light of Melendez-Diaz, supra, 129 S.Ct. 2527, and we affirmed again in Barba II.
DISCUSSION
1. The DNA Evidence
Hairs from the blood-soaked sweatshirt discarded by Kim's killer were sent to Cellmark for DNA analysis. Three hair samples taken by the LAPD in September 2001 matched Kim's DNA, not Barba's. More hair samples taken from the sweatshirt in March 2002 also matched Kim's DNA, not Barba's.
The hair samples that implicated Barba were removed from the sweatshirt on February 21, 2002, by LAPD criminalist Michael Mastrocovo. He found 14 hairs and gave them to LAPD criminalist Susan Brockbank, who examined them and concluded they had telogen roots, which were not suitable for DNA analysis. In May 2002, Mastrocovo told the prosecutor those hairs could be combined to produce a testable sample, but that doing so would destroy the sample, thereby precluding any further testing. The prosecutor said to perform the test, and Mastrocovo sent the 14 hairs to Cellmark with instructions to consume the samples if necessary. The LAPD's lab procedure manual recommended that before DNA testing was performed on hair samples, the hairs should be washed to reduce the presence of any contaminants. Mastrocovo did not wash these hair samples because he did not extract them.
In June 2002, Cellmark DNA analyst Linda Wong tested the 14 hairs sent by Mastrocovo. Wong had performed the previous DNA tests but, unlike those tests, her notes did not reflect that she performed the Chelex procedure, which involves washing the hairs to remove any contaminants that were deposited on the hairs. Wong cut and combined the hair shafts and was able to locate only nine genetic locations instead of the 13 that were usually present. Of those nine, six were consistent with Barba's DNA.
Wong testified at Barba's first trial, but by the time of the second trial had retired and the prosecution did not call her to testify again. Instead, Dr. Jennifer Reynolds, the director of Cellmark's Maryland laboratory testified at the retrial. Reynolds's duties included performing technical reviews of case folders created by the lab's test analysts, independently drawing conclusions from the test results based on her own expertise and training, and either cosigning the reports or testifying about them in court. Reynolds ended this description of her job duties by stating, "as I have done today." According to Reynolds, the case file for the June 2002 testing included correspondence from the LAPD, test data and results, Wong's worksheets and handwritten notes, and reports of the test's conclusions. Analysts complete their lab notes and other documents at or near the time of the events. The materials in the file included all of the lab notes and worksheets that an analyst would have to fill out in the course of DNA testing. The information in the file was detailed enough to allow any qualified scientist to look at the file and determine what procedures had been used. For instance, Reynolds testified, the file included electropherograms, from which anyone with the proper training could determine how the testing was done. Those records were kept and maintained in the normal course of Cellmark's business.
Along with Reynolds's testimony, four DNA test reports were admitted in evidence: (1) Wong's November 27, 2001 report which determined that three hair samples taken from the killer's sweatshirt contained only Kim's DNA (Exhibit 27); (2) Wong's March 26, 2002 report which determined that another sample taken from the sweatshirt contained only Kim's DNA (Exhibit 28); (3) Wong's June 28, 2002 report which determined that the 14 hairs found in the sweatshirt matched Barba's DNA (Exhibit 29); and (4) A June 10, 2004 report by lab analyst Terrill that another hair sample from the sweatshirt belonged to Kim, and not to Barba (Exhibit 35).
These reports were not part of the appellate record in either Barba I or Barba II. We ordered the record augmented to include these trial exhibits, and asked the parties to brief the issues in light of the specific contents of those reports.
These four reports were prepared in the identical format. Each was on Cellmark letterhead, addressed to a police investigator. Each bore the title, "REPORT OF LABORATORY EXAMINATION." Each described the items being tested and the type of test performed - polymerase chain reaction (PCR) testing. Under the heading "RESULTS," the reports said that DNA extracts were isolated from the items tested by using the "AmpF/STR Profiler Plus and/or AmpF/STR COfiler PCR Amplification Kits." The results section said that the DNA loci tested and the types obtained for each sample were listed in an attached table.
Under the heading "CONCLUSIONS," the reports stated whether the DNA matched Kim or excluded Barba. A population database and frequency table was provided to show the frequency of unrelated individuals having the same DNA results depending on whether they were African American, Caucasian, or Hispanic. The third page of the reports contained a table identified as "ALLELES DETECTED - PROFILER PLUS," and then set forth certain letter or numerical designations that corresponded to certain DNA loci.
Exhibits 27, 28, and 35 all stated that Barba was excluded as the source of the DNA. Exhibit 29, which implicated Barba, stated in the RESULTS section that "[a] portion of the hair shafts adjacent to the roots was used as a control. Any results obtained from this hair shaft control are likely due to DNA deposited on the exterior of the hair shaft." Under CONCLUSIONS, the report said that the DNA profile used six of nine loci and that Barba could not be excluded as the source. No conclusion about Barba could be reached as to the other three loci. The report's database frequency table said that only one in six million unrelated Hispanics would have the same DNA at those six loci. Under the ALLELES DETECTED table on the third page was the following notation: "In addition to the profiles obtained from the items referenced in this report, weak results were observed. These results may be due to the presence of DNA from more than one individual or to technical artifacts, and therefore were not interpreted." Each report was signed by the analyst and by a lab director.
Under the Sixth Amendment to the United States Constitution, a defendant in a criminal trial has the right to confront and cross-examine adverse witnesses. The essence of a confrontation clause violation is the use of a hearsay declarant's testimonial or quasi-testimonial statements. Testimonial statements are those that in purpose, form, and setting, are akin to testimony given by a witness at trial. (People v. Cage (2007) 40 Cal.4th 965, 984-987.) Barba objected that having Reynolds testify instead of Wong violated his confrontation rights. Defense counsel said she believed the incriminating hair samples had been contaminated while in the LAPD's custody before being sent to Cellmark for testing, but that Wong's testimony was required because there was evidence she had not washed the hair samples, which would have eliminated any contamination. Without Wong's testimony, there would be no explanation of why that happened.
The trial court overruled the objection because it believed Wong's reports qualified as business records. However, Reynolds was allowed to testify only as to procedures that Wong's notes showed were actually conducted, or as to what the lab's standard protocols were. Reynolds was not allowed to speculate as to any procedures not reflected in Wong's notes, or why they might not have been performed. Reynolds testified that, in accord with her job duties, she was in court to give her own independent conclusions based on the contents of Wong's case file. According to Reynolds, only one in six million people would have the same six genetic markers as those that matched Barba.
Reynolds was vigorously cross-examined about Wong's testing procedures. Reynolds said that because the notes did not state that Wong had washed the hair samples before testing, Wong probably had not done so. Reynolds also testified that even though the test results were accurate as to the DNA found on the hair shafts, that did not mean the DNA had not been deposited there before testing. Nor could she rule out whether such contamination had occurred.
2. Relevant Confrontation Clause Decisions
A. The Geier Decision
The defendant in People v. Geier (2007) 41 Cal.4th 555, was convicted of murder and rape based in part on DNA evidence tested by Cellmark. The analyst who performed the testing did not testify at trial. Instead, a lab director who co-signed the report did, and, based on the results and her review of the case file, testified that in her expert opinion the incriminating DNA matched that of the defendant. Geier contended his constitutional right to confront and cross-examine adverse witnesses was violated because the lab analyst did not testify. Our Supreme Court disagreed.
After examining disparate state and federal authority on the issue of whether scientific test reports were testimonial for purposes of the confrontation clause, the Geier court concluded a statement was testimonial only if three requirements were all met: (1) it was made to a law enforcement officer or by a law enforcement officer or agent; (2) it describes a past fact related to criminal activity; and (3) it will possibly be used at a later trial. (Geier, supra, 41 Cal.4th at p. 605.) The Geier court found the second point determinative. Even though the analyst was working for the police and could reasonably anticipate the use of her test results at trial, those results "constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events." (Id. at p. 605.) As a result, when the analyst recorded the results, she was not acting as a witness and was not testifying. (Id. at pp. 605-606.)
Ultimately, it was the circumstances under which the analyst's reports and notes were made that led the Geier court to conclude they were not testimonial and therefore did not violate Geier's confrontation rights. First, they were generated as part of a standardized scientific protocol conducted pursuant to her employment at Cellmark. Even though the prosecutor hoped to obtain evidence against Geier, the analyst's work product was part of her job, and was not intended to incriminate him. Second, to the extent the analyst's notes and reports recounted the procedures used, they were not accusatory because DNA analysis can lead to either incriminatory or exculpatory results. Finally, the accusatory opinions that the DNA evidence matched Geier "were reached and conveyed not through the nontestifying technician's laboratory notes and report, but by the testifying witness, [the lab director]." (Geier, supra, 41 Cal.4th at p. 607.)
B. The Melendez-Diaz Decision
The defendant in Melendez-Diaz, supra, 129 S.Ct. 2527, was convicted in Massachusetts state court of selling cocaine. A substance in the defendant's possession that was believed to be cocaine was sent to a lab for analysis, and the lab test confirmed it was cocaine. At trial, as permitted by Massachusetts law, a sworn affidavit known as a certificate of analysis was allowed in evidence in order to prove that the substance tested positive as cocaine. The analyst who performed the test did not testify at trial. The certificate said nothing more than that the substance was found to contain cocaine. At the time of trial, the defendant did not know what tests the analyst performed, whether those tests were routine, or whether interpreting their results required the exercise of judgment or skills the analyst did not possess.
The Melendez-Diaz court held that the affidavits fell within the core class of testimonial statements - such as depositions, prior testimony, declarations, and affidavits - whose admission violates the confrontation clause. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.) Therefore, the analysts were witnesses and their affidavits were testimonial, meaning that the defendant had a right to "confront" them at his trial unless the analysts were unavailable for trial and the defendant had a previous opportunity to cross-examine them. (Id. at p. 2532.) In short, "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence . . . was error." (Id. at p. 2542, fn. omitted.)
In Barba II we held that Melendez-Diaz did not apply because that decision did not consider the scenario present here, where the DNA evidence came in through the testimony of an expert witness who used the case materials to form her own independent opinion.
C. The Bullcoming Decision
Bullcoming was arrested in New Mexico for drunken driving, and his blood sample was sent to a New Mexico state lab for testing. The analyst who tested the sample determined that Bullcoming's blood alcohol level was .21 grams per hundred millimeters, which was very high. The analyst recorded his results on a state-prepared form titled "Report of Blood Alcohol Analysis." The report included a "certificate of analyst," affirming that: the sealed sample he tested was received at the laboratory intact, with the seal unbroken; the statements made by the analyst were correct; and that he had followed the procedures set out on the back side of the form. Those procedures required analysts to retain the sample container and raw data from the analysis and to note anything that might affect the integrity of the sample or otherwise affect the validity of the analysis. No such notations appeared on the certificate for Bullcoming's test results. Finally, under the heading "certificate of reviewer," a state lab examiner who reviewed the analysis certified that the person who tested the sample and prepared the report was qualified to do so and had followed the established procedures for conducting the test.
At Bullcoming's trial, the analyst who tested his blood sample did not testify because he had been placed on disciplinary leave. Instead, the prosecution called another analyst who was familiar with the lab's testing procedures but had not participated in or observed the test on Bullcoming's sample.
The trial court overruled Bullcoming's objection that allowing the other lab analyst to testify about the report violated his confrontation rights, and he was convicted of aggravated drunken driving. The New Mexico Supreme Court affirmed. The court said the certifying analyst was a mere scrivener who did nothing more than transcribe the results generated by the machine used to conduct the test. The substitute analyst who testified at trial was a qualified expert on the use of that machine and provided live, in-court testimony that was subject to cross-examination. As a result, the New Mexico court concluded, even though the certificate was testimonial, Bullcoming's right of confrontation was not violated.
In Bullcoming, supra, 131 S.Ct. 2705, the United States Supreme Court reversed. In a plurality opinion, the court held that the analyst's certificate was a testimonial statement that could not be introduced unless the analyst was unavailable for trial and the defendant had a prior opportunity to confront that witness. Justice Ginsburg delivered the four-part decision. However, part IV did not command a majority, and the concurring opinion of Justice Sotomayor, who also declined to join in part IV, sets the parameters of Bullcoming's reach. (Panetti v. Quarterman (2007) 551 U.S. 930, 949 [if no majority opinion, the narrower holding controls]; Marks v. United States (1977) 430 U.S. 188, 193 [in plurality decision, court's holding is viewed as the position taken by the justices who concurred on the narrowest grounds].)
Part I of the Bullcoming decision contained the facts and procedural history. Part II explained why the surrogate analyst was an inadequate substitute for the analyst who performed the test. The court noted that the analyst's certification reported more than a machine-generated number. It reported his certification that he received the blood sample intact with the seal unbroken, that he had properly followed certain specified procedures, and that nothing happened to affect the integrity or validity of the testing process. (Bullcoming, supra, 131 S.Ct. at p. 2714.) Even so, the comparative reliability of an analyst's testimonial report derived from machine-generated data does not overcome the confrontation clause, and analysts who write reports that the prosecution puts in evidence must be made available for examination at trial. (Id. at p. 2715.)
In Part II of Bullcoming, footnote 6 mentioned Melendez-Diaz's observation that business and public records are generally admissible absent confrontation because they are usually created in order to administer an entity's affairs, not to prove a fact at trial. (Bullcoming, supra, 131 S.Ct. at p. 2714, fn. 6.) Although a majority of the court signed off on Part II of Bullcoming, Justices Ginsburg and Thomas did not join in footnote 6, and it is therefore part of the plurality holding only.
Surrogate testimony by someone who qualified as an expert regarding the machine used and the lab's procedures could not convey what the actual analyst knew or observed when testing Bullcoming's blood sample, and would not expose "any lapses or lies" by the certifying analyst, the Bullcoming court held. This was especially significant because the analyst was on disciplinary leave, but was not declared unavailable by the prosecution. As a result, Bullcoming's lawyer could not question the analyst to determine whether he was incompetent or dishonest. (Bullcoming, supra, 131 S.Ct. at pp. 2715-2716.) In short, if the Sixth Amendment is violated, "no substitute procedure can cure the violation." (Id. at p. 2716.)
Part III of Bullcoming explained why the analyst's certificate was testimonial for purposes of the confrontation clause. The court rejected New Mexico's contention that the report was not adversarial or inquisitorial because it contained nothing more than the observations of an independent scientist created pursuant to a nonadversarial public duty. As the Melendez-Diaz court held, a document created solely for an evidentiary purpose in aid of a police investigation is testimonial. (Bullcoming, supra, 131 S.Ct. at pp. 2716-2717.)
Even though the analyst's certificate was not signed under oath, as was the case in Melendez-Diaz, the two documents were similar in all material respects, the Bullcoming court held. (Bullcoming, supra, 131 S.Ct. at p. 2717.) As in Melendez-Diaz, a police officer provided a sample to a lab for testing to assist in a police investigation. An analyst tested the sample and prepared a certificate concerning the results. Finally, the certificate was formalized in a signed document that was sufficient to qualify the analyst's statements as testimonial despite the absence of notarization present in Melendez-Diaz. In short, the certificate was testimonial. (Bullcoming, at p. 2717.)
Part IV explained why the court did not believe that application of its holding would impose an undue burden on the prosecution by requiring it to produce the analyst who actually conducted a test and prepared a report. (Bullcoming, supra, 131 S.Ct. at pp. 2717-2719.)
Justice Sotomayor's concurring opinion had two express purposes: (1) to explain why the analyst's report was testimonial; and (2) "to emphasize the limited reach of the court's opinion." (Bullcoming, supra, 131 S.Ct. at p. 2719, conc. opn. of Sotomayor, J.)
As to her first purpose, Justice Sotomayor reaffirmed the principle that a statement is testimonial if its primary purpose was evidentiary - to create an out-of-court substitute for trial testimony. (Bullcoming, supra, 131 S.Ct. at pp. 2719-2720, conc. opn. of Sotomayor, J.) She agreed with the majority that the lab analyst's certificate was sufficiently formal to suggest its evidentiary purpose despite the absence of an affirmation under oath that was present in Melendez-Diaz. However, she noted that formality is not the only test to determine whether a report is testimonial. (Bullcoming, at pp. 2720-2721.)
As to her second purpose, Justice Sotomayor pointed out four circumstances not present in Bullcoming. First, this was not a case where the state suggested an alternate primary purpose for the report, such as medical reports created while treating a patient.
Second, because the surrogate analyst testified that he had no part in producing any portion of the report and did not observe the testing process, "this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue." (Bullcoming, supra, 131 S.Ct. at p. 2722, conc. opn. of Sotomayor, J.) For example, a supervisor who observed an analyst conducting the test might be allowed to testify about the results. Justice Sotomayor did not address the precise degree of involvement necessary to justify testimony by someone other than the analyst because the surrogate analyst who testified at Bullcoming's trial had no involvement in the test and report. (Ibid.)
Respondent contends this exception applies here. Although we do not reach the issue, we note that Justice Sotomayor's exception was supported by the example of a supervisor who observed or otherwise had some limited role in conducting the test, and Reynolds did neither.
Third, this was "not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. [Citation.]" (Bullcoming, supra, 131 S.Ct. at p. 2722, conc. opn. of Sotomayor, J.) That scenario would present a different question, Justice Sotomayor explained.
Fourth, the case did not involve only machine-generated results. Instead, the prosecution introduced the analyst's statements about the results of the test, the procedures used, and their validity and integrity. Therefore, the decision did not consider whether the prosecution could introduce raw, machine-generated data in conjunction with expert witness testimony. (Bullcoming, supra, 131 S.Ct. at p. 2722, conc. opn. of Sotomayor, J.)
3. Allowing Reynolds to Testify Did Not Violate the Confrontation Clause
Barba contends that the broad language of Bullcoming applies to the inculpatory DNA report prepared by Wong, meaning that having Reynolds testify about Wong's results and admitting the report in evidence each violated the confrontation clause. We disagree as to the first, and hold that even if error occurred as to the latter, it was harmless.
The United States Supreme Court appears poised to tackle this precise issue in People v. Williams (2010) 238 Ill.2d 125, cert. granted Nov. 22, 2011, ___ U.S. ___ .
The California Supreme Court has granted review in four Court of Appeal decisions that took divergent views on this issue. (People v. Rutterschmidt, review granted Dec. 2, 2009, S176213; People v. Gutierrez, review granted Dec. 2, 2009, S176620; People v. Dungo, review granted Dec. 2, 2009, S176886; and People v. Lopez, review granted Dec. 2, 2009, S177046.)
Division Four of this court has also recently addressed the issue. (People v. Vargas (2009) 178 Cal.App.4th 647 (Vargas).) Vargas was convicted of rape. At trial, a nurse who conducted a sexual assault exam of the victim testified about the victim's statements during the exam that described the assault. The victim, a minor, did not testify. The Vargas court questioned whether Geier had any continued viability in light of Melendez-Diaz, but noted that Justice Thomas's concurrence cast doubt on whether its reasoning might be extended to items that were not in the core class of testimonial statements, such as affidavits. (Vargas, at pp. 659-660.)
Analyzing the cases under pre-Melendez-Diaz authority such as Geier, the Vargas court concluded that the victim's statements to the examining nurse were testimonial because they were made as part of the evidence gathering process for possible use at trial, instead of as part of a medical examination designed to diagnose an injury and render treatment. (Vargas, supra, 178 Cal.App.4th at pp. 660-662.) The confrontation clause violation was held harmless as to Vargas's conviction of forcible rape, but was not harmless, and therefore required reversal of, his conviction for rape by penetration with a foreign object, because the only evidence to support that charge came from the nurse's testimony. (Id. at pp. 662-664.)
Because Vargas concerned an entirely different factual setting, we consider Vargas generally inapplicable to our analysis.
In Part II of the Bullcoming decision, where the plurality discussed why the surrogate analyst's testimony was insufficient, the court pointed out that the prosecution did not assert that the surrogate analyst had an independent opinion concerning the test results. (Bullcoming, supra, 131 S.Ct. at pp. 2715-2716.) This thread was picked up by Justice Sotomayor, who distinguished the facts in Bullcoming from a case where "an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted in evidence." (Id. at p. 2722, conc. opn. of Sotomayor, J.) Although Geier's holding that DNA reports are not testimonial may no longer be good law, its conclusion that no confrontation clause violation occurred because the accusatory opinions concerning the DNA evidence came from the lab director who signed the report, not from the reports themselves, is in accord with the independent opinion exception suggested by Bullcoming. That is what happened here.
Exhibit 29, the report that implicated Barba, was only part of Wong's case file on that particular DNA test. The file also included test data and results, Wong's worksheets and handwritten notes, and her reports on the test's conclusion. Reynolds testified that the case file was detailed enough so that any qualified scientist could review it and determine what procedures had been used, an evidentiary point that Barba does not contest. Reynolds also testified that, as part of her job duties, she drew independent conclusions based on the entirety of the case file and would "either cosign reports or come to court as I have done today."
Therefore, even though the dissent contends Reynolds did not offer an independent opinion, it was undisputed that she was able to, and had done so, based on the materials she reviewed.
The propriety of having Reynolds offer an independent opinion based on the totality of the case file is buttressed by certain key distinctions between the report prepared by Wong in this case and the certificate and test results in Melendez-Diaz and Bullcoming. First, exhibit 29 did not state numerical results which, standing alone, allowed the jury to understand the report. (Melendez-Diaz, supra, 129 S.Ct. 2527 [report stated substance was cocaine]; Bullcoming, supra, 131 S.Ct. 2705 [report said blood alcohol level was .21].) Instead, by way of both direct and cross-examination, Reynolds gave detailed explanations of how DNA testing is performed and what the numbers set forth in the report actually meant.
In fact, on cross-examination by Barba's lawyer, Reynolds was asked, "So the bottom line is, in interpreting these results, it isn't as simple as comparing numbers. It's much more complicated than that, right?" Reynolds replied, "Sure. It takes analysts and reviewers looking at the data and as I said, using their experience, training and judgment to interpret the results in a fair and accurate manner."
Second, Exhibit 29 did not contain a sworn affidavit or certificate that the results were correct and that certain specified procedures were properly performed in a manner that did not affect the integrity of the test results. Instead, the report identified by name the type of tests performed, but it was left to Reynolds to explain what those tests were and how they were conducted. For example, Reynolds conceded that Wong had probably not washed the samples, but that omission did not change her conclusions.
4. Admission of the Report Was Harmless Error
Although Reynolds was free to offer her independent opinion about the DNA test results, Justice Sotomayor's exception for this scenario was limited to instances where the underlying testimonial report that the expert relied on was not admitted in evidence. Therefore, under this exception, admitting Wong's report violated the confrontation clause. However, as set forth below, we conclude the error was harmless. (People v. Loy (2011) 52 Cal.4th 46, 69-70 [confrontation clause violations subject to harmless error analysis, where we ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict without the error].)
As for the other three Cellmark reports, because they concluded that the samples did not contain Barba's DNA, their admission was also harmless.
As just discussed, Exhibit 29 differed significantly from the reports in Melendez-Diaz and Bullcoming because there were no direct affirmations that certain correct procedures had been properly followed, and because expert testimony was required to explain the report and the tests upon which it was based. Furthermore, the key defense theory at trial was that the hair samples had been contaminated by the police before being sent to Cellmark, and that Wong's failure to wash the samples explained why Barba's DNA was on the hairs. However, Reynolds was not allowed to speculate about procedures Wong might have performed. Although she could testify about the lab's usual protocols, the jury was told that it did not mean the protocols were followed unless it was reflected in Wong's notes. As a result, Reynolds was forced to concede that Wong had not washed the hair samples that implicated Barba, even though that was usually done in order to eliminate a DNA result from genetic material that had been deposited on the hair shaft.
According to Reynolds, the hair shaft does not contain DNA, but the root does. The shaft was tested separately and was found to have Barba's DNA on it, meaning that it had been deposited there somehow. On direct examination, Reynolds testified that if the hair had belonged to someone other than Barba, but his DNA had been deposited on the hair, then the test results would have shown a mixture - meaning the DNA of two separate persons was present. No mixture was present, she testified. However, on cross-examination, she conceded that she could not rule out the possibility of contamination before Cellmark received the hair samples, and could not say with certainty that the test results came from the hair donor or were deposited there. The report itself noted that in addition to the listed profile results, "weak results" were obtained that could have come from someone else.
In short, even if the report should not have been admitted into evidence, it was virtually meaningless without Reynolds's testimony to explain it. Had the report itself been excluded, Reynolds's opinion - which was properly based in part on that report as explained in Justice Sotomayor's concurrence - would have still been before the jury. Also, the court's order preventing Reynolds from speculating about test procedures that did not appear in Wong's notes allowed defense counsel to perform a skillful and thorough cross-examination that allowed the jury, if it so chose, to doubt the reliability of the test results. And, as noted, the report itself stated that weak results were obtained, possibly due to another DNA donor. Finally, the jury did not ask to see the report during its deliberations, and the report was not the focus of the parties' arguments to the jury. We therefore conclude that it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict even if the report had not been admitted into evidence. (People v. Loy, supra, 52 Cal.4th at pp. 69-70.)
5. Business Record Foundational Challenges
Barba also contends the trial court erred by admitting the DNA test results themselves under the business records exception to the hearsay rule (Evid. Code, § 1270) because those results reflected Wong's opinions and were not recording an "act, condition, or event." (People v. Campos (1995) 32 Cal.App.4th 304, 309.) He also challenges the admissibility of Reynolds's testimony because the prosecution failed to establish two of the statutory predicates under the business records exception: (1) that Reynolds was Cellmark's custodian of records or was otherwise qualified to testify to the report's identity and method of preparation (§ 1271, subd. (c)); and (2) because there was evidence that Wong did not follow the proper testing protocols, the evidence was not sufficiently trustworthy (id., subd. (d)). As to the first, no such objection was raised below and the issue is therefore waived. (§ 353, subd. (a); People v. Pollock (2004) 32 Cal.4th 1153.)
All further undesignated section references are to the Evidence Code.
At oral argument upon remand to this court, Barba's counsel said objections about the report were made as "to everything," suggesting to us that an objection had been made under section 1271, subdivision (c). We have reviewed the record and determined that no such objection was made. Were we to reach that issue we would find no error. Reynolds testified that she had a doctoral degree in human genetics, that part of her job duties included performing technical reviews of the lab analysts' case files and independently drawing her own conclusions about the results, that the file Wong prepared was kept in the normal course of business, and that Wong's notes and other records were made at or near the time of the events and were sufficiently detailed that any qualified scientist could interpret them. Accordingly, she did testify to the identity and mode of preparation of the report.
Regardless of whether the reports were independently admissible, however, as just discussed, Reynolds was still free to offer an expert opinion based on those reports if they were the proper basis for such testimony. (§ 804, subd. (d); Geier, supra, 41 Cal.4th at p. 608, fn. 13 [DNA expert witness was free to rely on the analyst's report to form her own opinions about the DNA match]; People v. Gardeley (1996) 14 Cal.4th 605, 618.) Because Reynolds could rely on (and be examined about the basis of) those reports, and because Reynolds's independent opinions were the lynchpin of the incriminating DNA evidence, any error in admitting the reports as business records was harmless.
6. Claimed Jury Selection Error
A. Applicable Law and Standard of Review
Group bias is bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. When a prosecutor uses peremptory challenges to strike prospective jurors because of group bias, she violates a criminal defendant's right to trial by a jury drawn from a representative cross-section of the community under both the Fourteenth Amendment to the United States Constitution and article I, section 16 of the California Constitution. (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell).) The federal constitutional right was established by Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and the California counterpart was recognized by People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). (Bell, at p. 596.) The right applies not only to racial and ethnic minorities, but to gender discrimination as well. (People v. Jurado (2006) 38 Cal.4th 72, 104.) The defendant need not be a member of the targeted group. (Bell, at p. 597.)
When a Batson-Wheeler motion is made, the trial court conducts a three-part inquiry. First, the defendant must make out a prima facie case by showing that the totality of the circumstances gives rise to an inference of discriminatory purpose. Second, if the defendant does so, the burden shifts to the prosecution to adequately explain its peremptory challenges by offering group bias-neutral justifications for the strikes. Third, if such an explanation has been given, the trial court must decide whether the defendant has proven purposeful discrimination. (Bell, supra, 40 Cal.4th at p. 596.)
At the time of trial in August 2004, California's courts had interpreted Batson's requirement of an inference of discrimination to establish a prima facie case to mean a showing of a strong likelihood of discrimination. (People v. Box (2000) 23 Cal.4th 1153, 1188, fn. 7, disapproved on another ground in People v Martinez (2010) 47 Cal.4th 911, 948, fn. 10; Wheeler, supra, 22 Cal.3d at pp. 280-281.) In June 2003, our Supreme Court attempted to reconcile the two terms by holding that a prima facie case under Batson-Wheeler required a showing that it was more likely than not that group bias had motivated a prosecutor's peremptory challenges. (People v. Johnson (2003) 30 Cal.4th 1302 (Johnson I).) In Johnson v. California (2005) 545 U.S. 162 (Johnson II), however, the United States Supreme Court reversed Johnson I and held that a prima facie case required no more than evidence or circumstances that gave rise to an inference of discrimination.
Because the trial occurred before Johnson II was decided, and because nothing in the trial court's comments indicates that it applied the correct standard, Barba contends, and respondent does not dispute, that we must review the matter de novo, examining the entire record of voir dire to determine the legal question whether the record supports an inference that the prosecutor excused a juror due to prohibited group bias. (Bell, supra, 40 Cal.4th at p. 597.) We agree.
B. The Wheeler Motion
Barba's Wheeler motion came in response to the prosecutor's 18th peremptory challenge, to prospective Juror No. 61, who was an African-American. Voir dire was initially conducted by the court, with counsel then permitted to ask questions if they wished. The court began its voir dire of Juror No. 61 by greeting him, to which Juror No. 61 replied, "What's up?" Juror No. 61 lived in Hollywood and had worked for Home Depot for five years. He did not know his job title, but was "supposed to do customer service." Juror No. 61 was single, had never been on a jury, and had one year of college education. The prosecutor asked Juror No. 61 no questions, and initially accepted the jury with him on it. After defense counsel exercised her 13th peremptory challenge, however, the prosecutor peremptorily challenged Juror No. 61.
Defense counsel then made her Wheeler motion, stating her belief that the prosecutor had earlier challenged another African-American juror and that Juror No. 61 had said nothing to justify a peremptory challenge. When defense counsel claimed that three of the jurors who had voted not guilty at Barba's first trial had been African-American, the court said it did not think that was a factor for it to consider. Defense counsel argued that it "demonstrates that the reason, the only reason she's asked to excuse juror number 61 is because he's African-American male. Also, I would note that there are no African-American males seated on the jury panel right now, seated in the box right now." The court replied, "All right," and asked defense counsel if she had any other arguments to make. Defense counsel pointed out that a White juror, No. 57, had a background similar to Juror No. 61 but had not been excused by the prosecutor. The court said: "Yeah, I don't find a prima facie case. The prosecution has exercised 17 peremptory challenges. I felt that she has been kicking off people that are both sexes and all races. I don't feel that there is a prima facie case of exclusion of one particular race. I felt that this particular juror whose [sic] being challenged now as to whether or not they were excused, says he's been working at Home Depot for five years. He seemed a little, I don't know, casual in his approach. He greeted the court with a 'what's up.' [¶] Were I trying the case, I don't think I would have kept him, but that's - I don't know. That's not an appropriate consideration for the court, but I just don't see that there is a prima facie case."
Later, during jury deliberations, the court provided counsel with a summary of the racial composition of all prospective jurors who had been peremptorily challenged by both sides, and of the jury that was finally selected to hear the case. The court noted that Juror No. 7, who was the prosecutor's third peremptory challenge, was a dark-skinned man from Honduras that the court perceived was Hispanic and not African-American. Even so, for purposes of its Wheeler prima facie analysis, the court considered Juror No. 7 to have been African-American. Of the prosecutor's 17 other peremptory challenges, 9 were Hispanic, 7 were White, and 1 was Asian. Two African-Americans were eventually selected to sit on the jury.
We found this summary very helpful and appreciate the trial judge's effort in making a complete record.
C. No Wheeler Error Occurred
In determining whether the trial court erred in finding that no prima facie of group bias had been made, we examine the totality of all the relevant circumstances, including the entire record of voir dire of the challenged jurors. However, the other relevant circumstances must do more than indicate that the record would support neutral reasons for the questioned challenges. (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1108.) The defense may show that the prosecutor struck most or all of the members of the identified group from the venire or used a disproportionate number of her peremptories against the group. The defendant may also show that the challenged jurors share only one common characteristic -- their group membership -- and in all other respects are as heterogeneous as the community as a whole. The showing may be supplemented when appropriate by such circumstances as the prosecutor's failure to ask the jurors anything other than desultory questions on voir dire, or the failure to ask them any questions at all. (Bell, supra, 40 Cal.4th at p. 597.)
Barba contends that a prima facie case exists because: (1) the prosecutor had a motive to exclude African-American jurors based on the results of the first trial; (2) jurors with backgrounds similar to Juror No. 61 were allowed to remain; and (3) the prosecutor asked Juror No. 61 no questions. We find no prima facie case.
First, whether the prosecutor might have had a motive does not by itself establish a prima facie case of discrimination. Barba cites no authority for such a proposition and the existence of such a potential motive does not relieve Barba of showing at least some of the permissible factors set forth above when reviewing the trial court's finding that no prima facie case existed. Second, Barba's defense counsel compared Juror No. 61 to just one other juror with a supposedly similar background -- Juror No. 57, who was White. (See People v. Cornwell (2005) 37 Cal.4th 50, 71 [appellate court may consider comparative analysis argument only if it were first raised in the trial court], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Although Juror Nos. 57 and 61 were both single, they were otherwise dissimilar. Juror No. 61 worked at Home Depot in customer service and had one year of college education, while Juror No. 57 had an AA degree and some postgraduate education and worked as a teaching assistant at a community college. Third, although the prosecutor asked Juror No. 61 no questions after the trial court's initial voir dire, the prosecutor did not question several other prospective White and Hispanic prospective jurors who were peremptorily challenged. We take this to mean that it was the prosecutor's practice not to question many of the jurors she planned to challenge regardless of their racial or ethnic identities, and it is therefore not indicative of group bias. Fourth, the prosecutor did not use a disproportionate number of peremptory challenges against African-Americans. Instead, Juror No. 61 was the first and only African-American juror she excused. Finally, the prosecutor agreed to a jury that eventually included two African-American members, which is a factor we may consider. (People v. Ward (2005) 36 Cal.4th 186, 203.) On this record, we hold that the trial court correctly determined that there was no prima facie showing of a Wheeler violation.
These were prospective Juror Nos. 17, 28, 34, 45, 49, 58, and 63.
The trial court decided for purposes of its analysis that it would consider Juror No. 7 - the subject of the prosecutor's third peremptory challenge - to have been African-American, and the parties have argued the issue on that basis. However, the trial court believed that Juror No. 7, who said he was from Honduras, was in fact Hispanic. Because we review the trial court's order de novo, the trial court's analysis is not binding. Its factual findings concerning a prospective juror's true racial identity are relevant. Regardless, Barba did not contend below and does not contend on appeal that Juror No. 7 was improperly challenged. In short, we are dealing with a Wheeler claim as to only one prospective juror.
7. The Phone Tip and Jailhouse Conversation Evidence
A. The Disputed Evidence and the Parties' Appellate Arguments
After obtaining a warrant, the police recorded Barba's jailhouse conversations with various visitors. Portions of those recordings were introduced in evidence. The first was a conversation with his sister where she tells Barba that his godfather, David, "got a report." Barba answers, "I know, I know," then said the report had been shown to "Gordy" and "Abel." When the sister says she has not seen the report, she asks to see it. Barba then asks whether his godfather talked to her "about that?" When she says yes, Barba says, "The person that . . . when -- I was at the house -- the person he came in with." When the sister agrees, Barba says, "Had to be. Had to be." The following exchange then took place:
"[The sister]: Yeah. I went -- I went over there because I needed brakes. I went over there, and I saw him.
"[Barba]: It had to be. No other -- no -- there was nobody else.
"[The sister]: I know, but Steve [Barba's defense counsel] said that it shouldn't --
"[Barba]: Oh, I know because it's -- it's --
"[The sister]: -- anonymous.
"[Barba]: Yeah, yeah.
"[The sister]: So --
"[Barba]: But still, though, that -- that -- that -- that --
"[The sister]: He's upset -- Gordy is upset about that.
"[Barba]: That . . . just jumps, you know?
"[The sister]: Gordy is upset about that.
"[Barba]: It gave him a green light pretty much.
"[The sister]: Not really because you didn't tell him. As long as -- I don't know, but Gordy - -
"[Barba]: The way it went down.
"[The sister]: Way after.
"[Barba]: I told him.
"[The sister]: Way after."
Gordy is Barba's brother.
The second was a conversation between Barba and his aunt where she said: "When -- when you want to do -- tell them something, write it down and show it to him or he writes and -- it to you here. And that's it. Don't -- about anything, okay." Barba replied, "No, well, about that, no one."
The third was a conversation with a woman named Karla where Barba said, "I know I got everybody behind me, you know? I know that already. I just feel like, damn, I fucked up. It's like I let everybody down."
These conversations were admitted on the theory that they were adoptive admissions by Barba. (§ 1221.) In connection with this evidence, the court allowed a police detective to testify about the anonymous phone tipster who identified Barba as Kim's killer. The court instructed the jury that the phone tip evidence was not to be considered for the truth of the tipster's statement, but was to be used solely in order to explain subsequent actions by the police and to explain the context of Barba's jailhouse conversations.
In his opening appellate brief, Barba contends the trial court erred by admitting evidence of the anonymous phone tip because it was inadmissible to explain subsequent conduct by the police in response to the tip. (People v. Scalzi (1981) 126 Cal.App.3d 901, 907.) He contends the jailhouse conversations were not admissible as adoptive admissions because there was no showing that he knew of the contents of the anonymous call when his conversations were recorded. (People v. Maki (1985) 39 Cal.3d 707, 712.) The conversation where he told his sister he had "fucked up" and "let everybody down" was not admissible, Barba contends, because it is not a clear admission of anything and bears no relationship to the anonymous phone tip. Respondent conceded in its brief that the phone tip was not admissible to explain later actions by the police and that the three jailhouse conversations did not qualify as adoptive admissions. According to respondent, evidence of the phone tip was admissible for a nonhearsay purpose on the alternate ground that it explained the jailhouse conversation concerning an anonymous report, and that all three conversations were admissible on a ground not raised at trial: they qualified as hearsay exceptions because they were statements of a party. (§ 1220.)
In his reply brief, Barba renews his attack on the admissibility of the phone tip to explain police conduct, but does not address respondent's contention that the evidence was properly admitted to give context to at least one of his jailhouse conversations. He does, however, renew his contention that there was no showing he knew of the phone tip when his conversations were recorded. He also contends that respondent cannot attempt to justify admission of the jailhouse conversations under section 1220 because that issue was not raised below, and that allowing the jailhouse conversations and phone tip into evidence violated his constitutional witness confrontation rights under Crawford v. Washington (2004) 541 U.S. 36.
B. The Phone Tip Evidence Was Properly Admitted
The anonymous phone tip evidence was admitted in part for a nonhearsay purpose: to give context to Barba's jailhouse conversations. It was therefore admissible on that basis and did not violate his constitutional witness confrontation rights. (People v. Turner (1994) 8 Cal.4th 137, 189-190, overruled on another ground by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cooper (2007) 148 Cal.App.4th 731, 747.) Because Barba referred to an anonymous report in his conversation with his sister, as well as to some other person he talked to about "[t]he way it went down," we reject his contention that the prosecution failed to show he knew about the anonymous phone tip at the time of that conversation. In any event, if error occurred at the time the evidence was admitted because the prosecution failed to make that foundational showing, it was rendered harmless because the jury was instructed that in order to consider the jailhouse conversations as adoptive admissions, it first had to find that Barba knew about the phone tip.
C. The Jailhouse Conversations Were Properly Admitted
Even if the trial court erred by admitting the jailhouse conversations in evidence as adoptive admissions, we will find no error if the evidence was admissible under section 1220. (People v. Horning (2004) 34 Cal.4th 871, 898.) Under that section, "[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party. . . ." (§ 1220.) In order to qualify under section 1220, the statement does not have to be an admission, and the section covers all statements by a party. (Horning, at p. 898.) If a party has made an out-of-court statement that is relevant and not excludable as unduly prejudicial under section 352, the statement is admissible under section 1220. (People v. Castille (2005) 129 Cal.App.4th 863, 875.) All three jailhouse conversations meet this standard. To the extent those statements might be considered ambiguous, that affected only the weight to be accorded the evidence, not its admissibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1122, disapproved on another ground in People v. Rundle (2008) 43 Cal.App.4th 76, 151, which was disapproved on another ground in People v Doolin (2009) 45 Cal.App.4th 390, 421, fn. 22.)
Barba's trial counsel objected that the anonymous phone tip evidence was unduly prejudicial under section 352, but did not make the same objection as to the jailhouse conversations. On appeal, Barba did not renew the section 352 objection.
The statement that Barba knew he "fucked up" and "let everybody down" could be interpreted as an acknowledgement of wrongdoing. We have some concerns about the conversation where Barba indicates he will write down things he wants to say, rather than speak them out loud. The prosecution contended this showed a consciousness of guilt, while the defense contended it was ambiguous and might have reflected nothing more than defense counsel's instructions to say nothing about the case. If error occurred in admitting this one statement, it is frankly so ambiguous that its admission was harmless.
DISPOSITION
The judgment is affirmed.
RUBIN, J.
I CONCUR:
BIGELOW, P. J.
FLIER, J., Dissenting
Because I conclude that Bullcoming v. New Mexico (2011) __ U.S. __ (Bullcoming) requires the exclusion of Dr. Reynolds's testimony in addition to Wong's report, I respectfully dissent.
In Bullcoming, the high court considered "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 reported in the certification." (Bullcoming, supra, 131 S.Ct. at p. 2710.) The high court held that "surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." (Ibid.) The surrogate testimony could not convey what the analyst who performed the test observed, the particular testing employed, or any lapses committed by the analyst. (Id. at p. 2715.) If the analyst who performed the test had testified, the defendant's counsel would have been able to conduct cross-examination on the analyst's "proficiency, the care he took in performing his work, and his veracity." (Id. at p. 2715, fn. 7.) The confrontation clause "does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination." (Id. at p. 2716.)
In Bullcoming, the state did not claim that the surrogate analyst had any "'independent opinion' concerning" the analysis. (Bullcoming, supra, 131 S.Ct. at p. 2716.) Justice Sotomayor, in her concurring opinion, emphasized this fact, explaining: "this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." (Id. at p. 2722.) Justice Sotomayor distinguished the facts of Bullcoming from a hypothetical case when an expert witness was asked to discuss "others' testimonial statements if the testimonial statements were not themselves admitted as evidence." (Ibid.) Those questions, however, were not before the high court in Bullcoming.
Under Bullcoming, admission of Wong's report and Reynolds's testimony describing Linda Wong's analysis and conclusions was improper. The report was not admissible because Reynolds did not prepare it, conduct the testing, observe the testing, or cosign the report. Reynolds's testimony concerning the contents of Wong's report was also inadmissible because there was no indication that Wong was unavailable or that defendant previously cross-examined her. By calling Reynolds instead of Wong, defense counsel was deprived of the opportunity to cross-examine Wong on her proficiency, care, or veracity, key concerns when the evidence showed that Wong failed to follow proper procedures and that when such procedures were followed, other hairs did not match defendant. Although Reynolds explained that an analyst must use "experience, training and judgment to interpret the results in a fair and accurate manner" defense counsel did not have the opportunity to cross-examine Wong on her experience, training, or judgment.
Like Bullcoming, this case also did not involve an independent opinion, but instead the expert actually called to testified was a conduit for DNA analysis prepared by someone else. Reynolds testified that her testimony was "based strictly on what [she] read in th[e] laboratory file." She later confirmed that "[e]verything" she "told the jury today is based on what [she saw] in [Wong's] notes." Most of Reynolds's testimony merely repeated otherwise inadmissible testimonial statements made by Wong, most significantly the chance that someone other than defendant's DNA was on the hairs was "1 in 6 million unrelated individuals." And the remainder of Reynolds's testimony -such as the protocols employed by the laboratory that conducted the tests or DNA testing in general - was of no import without Wong's conclusion that the hair sample contained defendant's DNA (either because he was the donor or because his DNA was deposited on the hairs).
The improper admission of the report and Reynolds's testimony describing Wong's analysis and conclusions prejudiced defendant. The DNA evidence was the strongest evidence linking defendant to the crime. Without Wong's conclusion described by Reynolds's testimony, there was almost no evidence implicating defendant. Defendant's conviction therefore must be reversed.
FLIER, J.