Present: Hassell, C.J., Koontz, Kinser, Lemons, and Millette,
JJ., and Russell and Lacy, S.JJ.
MIGUEL ANGEL AGUILAR
OPINION BY
v. Record No. 082564 JUSTICE CYNTHIA D. KINSER
September 16, 2010
COMMONWEALTH OF VIRGINIA
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
In a per curiam opinion, the Supreme Court of the United
States vacated this Court's judgment refusing Miguel Angel
Aguilar's petition for appeal and remanded "for further
consideration in light of" Melendez-Diaz v. Massachusetts, 557
U.S. ___, 129 S.Ct. 2527 (2009). Aguilar v. Virginia, 559 U.S.
___, ___, 130 S.Ct. 1282, 1283 (2010). On remand, the issue we
address is whether, in view of the decision in Melendez-Diaz,
the Commonwealth's failure to call as witnesses two forensic
scientists who played preliminary roles in the DNA analysis at
issue but did not author certificates of analysis admitted into
evidence violated Aguilar's rights under the Confrontation
Clause. We conclude that it did not because neither scientist
bore testimony against Aguilar.
FACTS AND PROCEEDINGS
Aguilar was convicted in a bench trial in the Circuit Court
of the City of Alexandria of robbery, in violation of Code
§ 18.2-58; use of a firearm in the commission of robbery, in
violation of Code § 18.2-53.1; rape, in violation of Code
§ 18.2-61; and object sexual penetration, in violation of Code
§ 18.2-67.2(A)(2). The convictions arose out of felonious
conduct committed against Elizabeth Arnez while she was working
alone as a night teller in a bank located in the City of
Alexandria. As she counted money in her cash drawer, she heard
footsteps behind her and turned to see a man pointing a firearm
at her. A hood covered the gunman's face except for his eyes.
The gunman took money from her cash drawer and a vault and,
forcing Arnez into a women's bathroom, told her to lower her
pants. According to Arnez, she felt his penis enter her vagina
and "he pushed three times." The gunman also penetrated her
vagina with his finger.
After Arnez reported the crimes to the police, a sexual
assault nurse examiner interviewed Arnez and collected evidence
from her. Specifically, the nurse obtained buccal, right thigh,
and vaginal swabs in addition to Arnez' underpants and
pantyhose. The nurse packaged each item separately and placed
them in a physical evidence recovery kit (PERK).
Aguilar was eventually arrested and indicted for the named
offenses. After his arrest, buccal swabs were obtained from him
pursuant to a search warrant. Those swabs, the PERK evidence
collected from Arnez, and buccal swabs obtained from Aguilar's
brother, Jovel Antonio Aguilar, were submitted to the
2
Commonwealth of Virginia Department of Forensic Science for DNA
analysis. 1
Pursuant to Code § 19.2-270.5, the Commonwealth notified
Aguilar prior to trial of its intent to introduce into evidence
certificates of analysis containing the results of DNA analysis.
Nathan Himes, a forensic scientist who qualified at trial as an
expert in "DNA analysis and body fluid identification," authored
those certificates and testified regarding the DNA analysis
conducted on the submitted samples. According to Himes, the
tested samples included a "thighs[/]external genitalia sample, a
vaginal[/]cervical sample, an oral buccal mucosa sample,"
underpants, and pantyhose, all obtained from Arnez, and the
buccal swabs taken from Aguilar and his brother.
With regard to the samples taken from Arnez, Himes stated
that the initial testing, which he described as a "preliminary
screening" conducted to "indicate the presence of seminal
fluid," was done under his supervision by another examiner,
Catherine Columbo. At that time, Columbo had recently started
working as an examiner so Himes directly supervised her work.
Himes "physically [saw] the tests being performed."
In her preliminary screening of the thighs/external
genitalia and vaginal/cervical samples, Columbo did not find any
1
Aguilar and his brother had been employees of a company
that performed cleaning services at the bank where the incident
involving Arnez occurred.
3
spermatozoa present. Examining the samples himself, however,
Himes identified "one spermatozoa head in each of the smear and
the extract from the thighs[/]external genitalia sample." He
found nothing on the vaginal/cervical sample. Himes also
discovered seminal fluid, but no spermatozoa, on the victim's
underpants. From the seminal fluid, a "single DNA type . . .
foreign to" Arnez was obtained, but it "was not suitable for
comparison or drawing any conclusions."
Following the identification of spermatozoa, Himes took the
sample "forward" for analysis and "essentially split that one
sample into two separate samples[:] the first sample being . . .
the spermatozoa itself, and the second sample being everything
else other than spermatozoa." This "nonsperm fraction,"
according to Himes, "potentially contain[ed] the nonsperm
components of seminal fluid as well as any other body fluid such
as saliva, vaginal fluid, anything else that's not a sperm
cell."
Himes then placed the samples on a "robot" that was
operated by Melanie Morris, a "PCR/STR technician" trained in
"robotic extraction." Himes described her work as "processing
. . . the samples" that he had determined were suitable for DNA
analysis by "run[ning] the machines that [would] ultimately
begin the DNA analysis take-out process." Morris "operate[d]
the robot in order to conduct the analysis portion where the
4
DNA's being pulled out of [a] cell[;] the DNA's being
amplified." After Morris pulled the DNA out of a cell and
amplified it by making "multiple copies of just the areas of DNA
[Himes] want[ed] to look at," she "placed [the samples] on a gel
in order to determine how much amplified DNA there was." The
gel "shows the amount of amplified product that was determined
after [the] amplification process, and . . . prior to taking it
forward to DNA typing." Himes then "perform[ed] the DNA typing
process, where [the samples are] placed on a larger gel in order
to actually determine DNA fragments."
Himes developed a DNA profile from the nonsperm fraction;
there were "no amplification results" from the sperm fraction.
He also developed a DNA profile from the "oral buccal mucosa"
sample given by the victim. Himes concluded that a "DNA profile
foreign to E. Arnez was developed from the thighs/external
genitalia sample," and he stated that finding in a certificate
of analysis dated January 25, 2007. The certificate bore Himes'
signature and his attestation that he performed the analysis "as
an employee of the Department of Forensic Science" and that the
certificate was "an accurate record of the results of that
analysis."
Himes also developed DNA profiles of both Aguilar and his
brother from the buccal swabs obtained from each of them. He
compared those profiles to the foreign DNA profile developed
5
from Arnez' thighs/external genitalia sample. Himes could not
"eliminate [Aguilar] as a contributor to that foreign DNA
profile developed from the thighs[/]external genitalia sample."
He was, however, able to eliminate Aguilar's brother as a
contributor of that particular profile.
In statistical terms, Himes reached these conclusions
regarding the foreign DNA profile developed from Arnez'
thighs/external genitalia sample:
[I]t was 1.1 quadrillion times more likely to be
observed if it originated from Ms. Arnez and Mr.
Miguel Aguilar than if it originated from Ms.
Arnez and an unknown individual in the Caucasian
population. 76 quadrillion times more likely to
be observed if [it] originated from Ms. Arnez and
Mr. Miguel Aguilar than if it originated from Ms.
Arnez and an unknown individual in the black
population. And 340 trillion times more likely
to be observed if it originated from Ms. Arnez
and Mr. Miguel Aguilar than if it originated from
Ms. Arnez and an unknown individual in the
Hispanic population.
Himes' conclusions with regard to Aguilar and his brother
were set forth in two certificates of analysis, dated
April 16, 2007 and December 10, 2007, respectively. Both
contained Himes' signature and the same attestation as
previously described.
On cross-examination, Himes conceded that, at times,
several forensic scientists may work on a DNA analysis. Himes
agreed that he relies on the "other team members" to do their
jobs correctly, as well as their conclusions. Finally, Himes
6
stated he was aware, when receiving evidence in a victim PERK,
that the results of a DNA analysis could be used later in
litigation.
Aguilar objected to the admission of the three certificates
of analysis on the ground that Columbo and Morris had worked on
the project and Himes had relied on their work and conclusions
in forming his own opinion. Aguilar argued that the conclusions
of Columbo and Morris were testimonial and because he was unable
to cross-examine either of them, admission of the certificates
of analysis into evidence violated his rights under the
Confrontation Clause. The circuit court overruled the objection
and found Aguilar guilty on all charges.
Aguilar appealed to the Court of Appeals of Virginia,
arguing, inter alia, that admitting the certificates of analysis
without the live testimony of Columbo and Morris violated his
confrontation rights. The Court of Appeals denied Aguilar's
appeal, finding that pursuant to this Court's decision in
Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008),
the circuit court did not err in admitting the certificates of
analysis into evidence. 2 Aguilar v. Commonwealth, Record No.
0686-08-4, slip op. at 4-5 (Sept. 5, 2008) (unpublished). This
2
That case is also before this Court on remand from the
Supreme Court of the United States and is the subject of Cypress
v. Commonwealth, 280 Va. 305, 699 S.E.2d 206 (2010) (this day
decided).
7
Court also refused Aguilar's petition for appeal. Aguilar v.
Commonwealth, Record No. 082564 (July 22, 2009).
Aguilar then petitioned the Supreme Court of the United
States for a writ of certiorari. Aguilar, 559 U.S. at ___, 130
S.Ct. at 1282-83. The Supreme Court granted the petition,
vacated the judgment, and remanded for further consideration in
light of its opinion in Melendez-Diaz. Id.
ANALYSIS
On remand from the Supreme Court, the sole issue we address
is whether, in view of the decision in Melendez-Diaz, Columbo
and Morris were required to testify at trial to preserve
Aguilar's confrontation rights. 3 Before it decided Melendez-
Diaz, the Supreme Court ruled in Crawford v. Washington, 541
U.S. 36 (2004), that the Confrontation Clause applies to
" 'witnesses' against the accused - in other words, those who
'bear testimony.' 'Testimony,' in turn, is typically '[a] solemn
declaration or affirmation made for the purpose of establishing
or proving some fact.' " Id. at 51 (citation omitted). The
Supreme Court provided several examples of "testimonial
statements":
3
Aguilar only assigns error to the admission of the
certificates of analysis, not to Himes' testimony generally. We
will thus examine under the Confrontation Clause only the
admissibility of the certificates of analysis without testimony
from Colombo and Morris.
8
[E]x parte in-court testimony or its functional
equivalent — that is, material such as
affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-
examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially[;] extrajudicial statements . . .
contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony
or confessions[;] statements that were made under
circumstances which would lead an objective
witness reasonably to believe that the statement
would be available for use at a later trial.
Id. at 51-52 (citations and internal quotation marks omitted).
Under the Confrontation Clause, testimonial statements of a
witness who did not testify at trial are inadmissible as
evidence "unless [the witness] was unavailable to testify, and
the defendant had had a prior opportunity for cross-
examination." Id. at 54.
Following Crawford, the Supreme Court elaborated on the
definition of "testimonial statements" in Davis v. Washington,
547 U.S. 813 (2006), explaining that only "testimonial
statements" are the "sort [that] cause the declarant to be a
'witness' within the meaning of the Confrontation Clause." Id.
at 821. In holding that a "911" call at issue was not
testimonial, the Supreme Court concluded that the caller "simply
was not acting as a witness; she was not testifying. What she
said was not 'a weaker substitute for live testimony' at trial."
Id. at 828 (quoting United States v. Inadi, 475 U.S. 387, 394
(1986)). In contrast, statements made by a victim at a crime
9
scene in response to police questioning were "testimonial." Id.
at 829. "Such statements under official interrogation are an
obvious substitute for live testimony, because they do precisely
what a witness does on direct examination; they are inherently
testimonial." Id. at 830.
Thus, with regard to statements made in response to police
interrogation, the Supreme Court held:
Statements are nontestimonial when made in the
course of police interrogation under
circumstances objectively indicating that the
primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.
They are testimonial when the circumstances
objectively indicate that there is no such
ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove
past events potentially relevant to later
criminal prosecution.
Id. at 822.
In Melendez-Diaz, the question before the Supreme Court was
whether affidavits reporting the results of forensic analyses,
i.e., certificates of analysis, were "'testimonial,' rendering
the affiants 'witnesses' subject to the defendant's right of
confrontation under the Sixth Amendment." 557 U.S. at ___, 129
S.Ct. at 2530. There, the prosecution introduced three
certificates of analysis establishing that substances seized by
the police contained cocaine. Id. at ___, 129 S.Ct. at 2531.
The certificates were admitted over the defendant's objection
10
and without any testimony from the forensic analysts-affiants.
Id.
The Supreme Court concluded that although labeled
"certificates" under Massachusetts law, the documents were
"quite plainly affidavits" and were "incontrovertibly a 'solemn
declaration or affirmation made for the purpose of establishing
or proving some fact.' " Id. at ___, 129 S.Ct. at 2532 (quoting
Crawford, 541 U.S. at 51) (internal quotation marks omitted).
The certificates, the Supreme Court said, were "functionally
identical to live, in-court testimony, doing 'precisely what a
witness does on direct examination.' " Id. (quoting Davis, 547
U.S. at 830).
[N]ot only were the affidavits "made under
circumstances which would lead an objective
witness reasonably to believe that the statement
would be available for use at a later trial," but
under Massachusetts law the sole purpose of the
affidavits was to provide prima facie evidence of
the composition, quality, and the net weight of
the analyzed substance.
Id. (quoting Crawford, 541 U.S. at 52) (citation and internal
quotation marks omitted). Thus, the Supreme Court held that the
"analysts' affidavits were testimonial statements, and the
analysts were 'witnesses' for purposes of the Sixth Amendment."
Id. In the absence of a showing that the analysts were
unavailable to testify at trial and that the defendant had had a
prior opportunity to cross-examine them, the defendant was
11
entitled to " 'be confronted with' the analysts at trial." Id.
(quoting Crawford, 541 U.S. at 54) (internal quotation marks
omitted).
After the decision in Melendez-Diaz, there is no question
that the certificates of analysis admitted as evidence in the
case now before us fell within the "core class of testimonial
statements" described in Crawford and Davis. See Cypress v.
Commonwealth, 280 Va. 305, 314-15, 699 S.E.2d 206, 312 (2010)
(this day decided). That conclusion, however, does not resolve
the question on remand. Because no one testified with regard to
the certificates of analysis at issue in Melendez-Diaz, the
Supreme Court did not decide whether anyone other than the
forensic analysts who signed the certificates needed to testify.
The Court merely stated that "[t]he certificates were sworn to
before a notary public by analysts at [a state laboratory]" and
those "analysts were 'witnesses' for purposes of the Sixth
Amendment." 557 U.S. at ___, 129 S.Ct. at 2531-32. Responding
to an argument from the dissent, however, the Supreme Court
stated:
Contrary to the dissent's suggestion, we do not
hold, and it is not the case, 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 prosecution's case. While
the dissent is correct that [i]t is the
obligation of the prosecution to establish the
chain of custody, this does not mean that
12
everyone who laid hands on the evidence must be
called. . . . [G]aps 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.
Id. at ___ n.1, 129 S.Ct. at 2532 n.1 (citations and internal
quotation marks omitted).
To decide whether admission of the certificates of analysis
without the testimony of Columbo and Morris violated Aguilar's
confrontation rights, we need only to review why a certificate
of analysis is testimonial. In Melendez-Diaz, the Supreme Court
held that the certificates of analysis there were testimonial
because they contained "'solemn declaration[s] or affirmation[s]
made for the purpose of establishing or proving some fact.'
[They were] functionally identical to live, in-court testimony."
Id. at ___, 129 S.Ct. at 2532 (quoting Crawford, 541 U.S. at 51)
(citation and internal quotation marks omitted). Here, the only
"declaration[s]" or "affirmation[s]" contained in the admitted
certificates of analysis were Himes'. Unlike his in-court
testimony that discussed the work of Columbo and Morris, the
certificates of analysis did not contain information describing
the steps involved in conducting a DNA analysis, such as the
preliminary screening and the amplification process, nor did
13
they reference the findings of any person other than Himes.
Instead, the certificates primarily contained Himes' conclusions
about the DNA profiles that were developed from the various
samples.
With respect to Columbo in particular, Himes' testimony
established that her preliminary screening ultimately had no
role in the DNA analysis. She apparently only worked on the
samples taken from Arnez and did not find any spermatozoa
present on either the thighs/external genitalia sample or the
vaginal/cervical sample. Rather, Himes, examining the samples
himself, identified the spermatozoa on the thighs/external
genitalia sample and the seminal fluid on the underpants. Those
were the only samples from which DNA profiles were ultimately
developed. Thus, contrary to Aguilar's contention, the
certificates of analysis did not contain the results of
Columbo's work product in any form, much less her
"declaration[s]" or "affirmation[s]." In other words, she did
not "bear testimony" against Aguilar under the Confrontation
Clause. Crawford, 541 U.S. at 51 (internal quotation marks
omitted).
We therefore hold that the admission of the certificates of
analysis without Columbo's testimony did not violate Aguilar's
confrontation rights. Columbo's failure to find any spermatozoa
on the samples taken from Arnez might affect the weight afforded
14
Himes' testimony by the fact-finder. See Hetmeyer v.
Commonwealth, 19 Va. App. 103, 108-09, 448 S.E.2d 894, 898
(1994) (holding that a challenge to an expert's opinion based on
the methods used goes to the weight of the evidence). It does
not, however, have any bearing on whether Aguilar had the right
to confront her as a witness against him.
As to Morris, Himes described her role as a "PCR/STR
technician" who operated the robot to extract DNA from the
samples. Morris amplified the samples by pulling DNA out of the
cell and making multiple copies of the areas of DNA Himes wished
to examine. Morris then placed the samples on a gel to
determine the amount of amplified DNA. 4 But, the certificates of
analysis did not explain Morris' work as the "PCR/STR
technician"; they did not contain any notes or reports she might
have generated during the course of her work; and they did not
report any factual findings by Morris about the DNA analysis.
Moreover, Morris did not perform the DNA typing process or
reach any conclusions regarding the DNA profiles. The various
results set forth in the certificates of analysis, primarily
that DNA profiles were developed and that Aguilar could not be
eliminated as a contributor of the DNA profile foreign to Arnez,
were not "declaration[s]" or "affirmation[s]" of Morris, either
4
It is not clear from Himes' testimony whether Morris
worked on just the samples obtained from Arnez or also worked on
the samples taken from Aguilar and his brother.
15
expressly or impliedly; they were Himes' testimonial statements.
Simply put, nothing from Morris was presented to the fact-finder
in a form "functionally identical to live, in-court testimony,
doing 'precisely what a witness does on direct examination.'"
Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2532 (quoting
Davis, 547 U.S. at 830); see United States v. Turner, 591 F.3d
928, 934 (7th Cir. 2010) (noting that a forensic chemist's
report "was not admitted into evidence, let alone presented to
the jury in the form of a sworn affidavit," and thus was not
functionally equivalent to a witness' live testimony); Bradberry
v. State, 678 S.E.2d 131, 134 (Ga. Ct. App. 2009) (holding that
the defendant's confrontation rights were not violated when two
lab technicians who were involved in forensic analyses did not
testify).
Furthermore, Himes supervised both Columbo's and Morris'
work and was directly involved in the entire DNA analysis at
issue. Cf. Turner, 591 F.3d at 933 (finding testimony did not
violate confrontation rights because witness had supervised
another analyst's work, reviewed the same materials, and drew
the same conclusions). Thus, Himes was the only person who
could testify about the accuracy of the DNA analysis, the
standard operating procedures of the forensic laboratory, as
well as any deviations from or systemic problems in those
procedures. Unlike Melendez-Diaz, who had no chance to confront
16
any witness regarding the certificates of analysis admitted as
evidence in his trial, Aguilar had the opportunity to confront
Himes, the forensic scientist who concluded that Aguilar could
not be eliminated as a contributor to the DNA profile foreign to
Arnez. Thus, we also conclude that the admission of the
certificates of analysis without Morris' testimony did not
violate Aguilar's confrontation rights.
Nevertheless, Aguilar contends that, because Himes
relied on Columbo's and Morris' work, he was denied the
right to confront all the forensic scientists who played a
role in the DNA analysis. While Himes did not in fact rely
on Columbo's work, evidenced by the fact that he repeated
the initial screening and was the one who identified the
presence of spermatozoa, the extent to which Himes relied
on Morris' DNA extraction is not dispositive of Aguilar's
Confrontation Clause challenge. "'[T]he Sixth Amendment
does not demand that a chemist or other testifying expert
have done the lab work himself.'" Turner, 591 F.3d at 933
(quoting United States v. Moon, 512 F.3d 359, 362 (7th Cir.
2008)). Likewise, the Sixth Amendment does not require
that every person who had some role in performing a
forensic analysis, or whose work upon which the ultimate
conclusions depend, testify at trial. See Melendez-Diaz,
557 U.S. at ___ n.1, 129 S.Ct. at 2532 n.1. The
17
Confrontation Clause requires only that "what testimony is
introduced must (if the defendant objects) be introduced
live." Id.
Furthermore, this case is not one involving so-called
"surrogate forensic testimony," when a witness testifies
about the factual findings and opinion of another forensic
analyst. See Commonwealth v. Avila, 912 N.E.2d 1014, 1027-
28 (Mass. 2009) (witness testified about factual findings
contained in an autopsy report authored by the medical
examiner who performed the autopsy); State v. Locklear, 681
S.E.2d 293, 304-05 (N.C. 2009) (same). Himes did not
merely "parrot 'out-of-court testimonial statements . . .
in the guise of expert opinion,'" but rather testified as
"a true expert" regarding his opinion as reflected in the
certificates of analysis. United States v. Johnson, 587
F.3d 625, 635 (4th Cir. 2009) (quoting United States v.
Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007)).
Aguilar, however, relies on Roberts v. United States, 916
A.2d 922 (D.C. App. 2007), a pre-Melendez-Diaz decision that
dealt with a similar DNA analysis and Confrontation Clause
challenge. There, a serologist determined if materials
submitted for examination contained biological fluids suitable
for DNA analysis, and a "PCR/STR technician" prepared the
samples for "DNA-typing and operate[d] the instrument that
18
actually determine[d] the DNA types found in the samples." Id.
at 937. An "examiner" then "interpret[ed] the data produced by
the DNA-typing instrument, and memorialize[d] those conclusions
in a formal report." Id. Unlike this case, however, the
testifying witness was not the original examiner but instead
reviewed the original examiner's report and all the information,
reaching his own conclusions. Id. at 937-38. The testifying
examiner then stated at trial that the opinion he offered was
his own. Id. The court held that "the conclusions" of the
serologist, the PCR/STR technician, and the original examiner
were all testimonial under Crawford. Id. at 938. "To the
extent that their conclusions were used as substantive evidence
against [the defendant] at trial," the court stated, the
defendant was entitled to be confronted with those witnesses.
Id.
Despite Aguilar's argument to the contrary, Roberts is
factually distinct from the case before us. The testifying
examiner there had not performed the original DNA analysis;
whereas here, Himes was the only person who developed the DNA
profiles and performed the comparisons. In addition, the
defendant in Roberts did not challenge the admissibility of a
certificate of analysis, but instead objected to the admission
"of out-of-court statements of . . . forensic scientists"
19
offered through the testimony of the testifying examiner. 5 Id.
at 926. Here, Aguilar only contests the admissibility of the
certificates of analysis. As we have already explained, the
certificates did not contain testimonial statements of either
Columbo or Morris. Furthermore, the court's holding in Roberts
was based, in part, on the testifying examiner's reference to
the conclusions of the original examiner. Id. at 938.
In summary, we conclude that the admission of the
certificates of analysis without testimony from either Columbo
or Morris did not violate Aguilar's rights under the
Confrontation Clause. Our holding is consistent with that of
other jurisdictions that have addressed the admissibility of
certificates of analysis after Melendez-Diaz. See Turner, 591
F.3d at 931-32 (defendant's confrontation rights were not
violated when testifying witness supervised analyst's work,
reviewed the materials, and drew the same conclusions, and no
statements of original analyst were introduced); Bradberry, 678
S.E.2d at 134 (defendant's confrontation rights were not
violated when both a lab technician who microscopically viewed a
sample taken from the victim and informed the expert that sperm
were present, and a second technician who placed some blood
taken from the defendant onto a "blood-stain card," did not
5
The written report of the DNA analysis was not introduced
into evidence at trial. Roberts, 916 A.2d at 938.
20
testify); Pendergrass v. State, 913 N.E.2d 703, 704-05 (Ind.
2009) (no confrontation violation when DNA expert who performed
paternity analysis testified at trial and a supervisor testified
regarding the process of DNA test sampling, although two
documents that contained information other than the test results
were admitted without testimony from the analysts who compiled
the information and prepared the documents), cert. denied, 560
U.S. ___, 130 S.Ct. 3409 (2010).
CONCLUSION
For these reasons, we will affirm the judgment of the Court
of Appeals.
Affirmed.
21