Cooper v. State

GREENE, J. On April 28, 2010, a jury in the Circuit Court for Baltimore City convicted Orville Cooper (“Cooper”) of second degree rape and multiple counts of second, third, and fourth degree ²¹³ sexual offenses and one count of second degree assault. After filing a motion for a new trial, Cooper filed a timely appeal to the Court of Special Appeals, and prior to the intermediate appellate court rendering a decision, we granted certiorari on our own motion, 427 Md. 606 , 50 A.3d 605 (2012), to address questions raised by Cooper: 1. Whether the trial court erred in allowing a DNA [deoxyribonucleic acid] analyst to testify regarding the analysis of another DNA analyst, who did not testify at trial, and/or erred in admitting that non-testifying analyst’s report into evidence: a) without a proper foundation in the form of a demonstrated chain of custody of the evidence tested; b) in violation of the rules against the admission of hearsay; and/or c) in violation of appellant’s federal and/or State constitutional right of confrontation. 2. Whether the trial court erred in admitting other prejudicial hearsay.

We affirm Cooper’s conviction, concluding that: (1) the State met its burden of showing chain of custody of a napkin, from which DNA was found connecting Cooper to the victim; (2) admitting the report of the analyst who performed the DNA tests on biological material found on the napkin did not violate the rule against hearsay; (3) admitting the report also did not violate Cooper’s right to confront adverse witnesses under either the Sixth Amendment to the federal Constitution or Article 21 of the Maryland Declaration of Rights; and (4) the trial judge did not commit error when he admitted the hearsay statements of the victim through the testimonies of the victim’s roommate and the investigating officer as excited utterances. FACTUAL BACKGROUND Orville Cooper was charged with multiple counts of rape, sexual offenses, assault, robbery, and other crimes. Cooper’s charges related to a February 16, 2006 attack on a woman in Baltimore City. A significant aspect of the prosecution’s casein-chief was that a match was found between Cooper’s DNA ²¹⁴ and the DNA found in the biological material on a napkin into which the victim testified she spit her attacker’s semen.

Although much of the scientific testing of the evidence was conducted by Baltimore City Police Department’s own laboratory (the “BPD lab”), the Baltimore City Police Department sent the napkin, along with other physical evidence, to a private laboratory, the Bode Technology Group (“Bode”), where an analyst, Sarah Shields, derived DNA profiles from the biological materials on the different pieces of physical evidence, including the napkin. As noted below, at trial the State introduced testimony that the DNA profile developed from material on the napkin was “consistent with” Cooper’s DNA profile. We now turn to the trial court proceedings. The victim of the sexual assault (“Victim”) testified in-court to the following: On February 16, 2006, at approximately four o’clock in the morning, Victim was waiting at a bus stop in Baltimore City to begin her trip to Fort Meade, where she worked as a cook, when a car approached her and the driver offered her a ride as a “hack” taxi. 1 After she got into the back seat of the car, the driver (“Driver”) pulled Victim into the front seat, threatened her with a box-cutter, undressed her, and sexually assaulted her.

Driver forced Victim to perform oral sex upon him and anally and vaginally raped her. Driver wore a condom during the sexual acts, but he removed the condom at one point during oral sex and ejaculated into Victim’s mouth. She spit the ejaculate into a napkin (the “napkin”). 2 After Victim spit into the napkin, she kept the napkin because she had no witnesses and she wanted “something tangible of his” ²¹⁵ as proof. 3 Additionally, Driver stole money from Victim. After the attack, Driver pushed Victim out of the car and Victim walked to her home, where, upon yelling for help, her roommate (“Roommate”) called the police.

Victim was taken to a hospital, where she met with a detective from the Sexual Assault Unit, Detective Grubb. Victim was examined by a medical professional and she gave the napkin to the police. 4 Approximately one year later, in April 2007, detectives located Victim and showed her a photo array from which she identified Cooper’s picture as that of her assailant. Victim additionally identified Cooper in open court. The State also called Roommate as a witness.

Roommate testified that he remembered being awaken by “a frantic [Victim] coming into the home” after she “came in very hysterical.” Roommate further testified that, after Victim told him she had been raped, he went to a pay phone to call the police. Then, over an objection that it was hearsay, Roommate testified as to what Victim had told him about some of the details of the rape. Detective Danny Grubb (“Grubb”) of the Baltimore City Police Department also testified during the State’s case-in-chief. Grubb testified that his involvement with this case began when the “primary officer,” Officer Jason Monn (“Monn”), notified Grubb that Monn was with a rape victim and “needed assistance with the investigation.” After instructing Monn to transport Victim to the hospital, Grubb met her there.

Detective Grubb also testified that, among other things: he interviewed Victim; he “authorized” a Sexual Assault Forensic Exam, or a SAFE exam, of Victim, which is done “[t]o collect forensic evidence that ... may have been ²¹⁶ left behind by a suspect[;]” several days later, he collected evidence from the secured “SAFE locker” at the hospital which he submitted to evidence control for later DNA testing; after Victim failed to appear for an appointment with law enforcement to assist in creating a sketch of Driver and failed to return calls to law enforcement the investigation was eventually suspended; approximately one year later, the case was reopened and Victim identified Cooper from a photo array; and based on Victim’s photo identification, pursuant to an arrest and a search warrant, Grubb collected a DNA sample from Cooper, through a buccal swab 5 of his inner cheek, for comparison with the DNA profiles developed from the biological materials found on the items previously collected in the case. The State further called Officer Monn to testify. Monn testified that his involvement with this case began when he responded to a call that there had been an attack. He further stated that he took Victim’s initial statement, from which he compiled a police report, and transported her to the hospital to be examined.

Without objection, Monn additionally read Victim’s statement into the record. Matthew Stielper (“Stielper”), 6 a forensic biologist who had previously worked at the BPD Lab 7 also testified for the State. After being accepted by the trial court as an expert in “forensic serology,” 8 Stielper explained that his job was to ²¹⁷ “analyze and identify any body fluids that we find on evidence and if we identify those body fluids we prepare those samples to be sent for DNA analysis.” After explaining, among other things, the test used to detect semen, Stielper stated that he worked on the present case and had analyzed 13 items of evidence, including the napkin and swabs taken from Victim, for the presence of biological fluids. Stielper testified that he identified the presence of semen on the swabs of Victim’s vaginal, vaginal cervical, anal, and perivaginal areas.

Additionally, Stielper testified that the tests were positive for the presence of sperm and seminal fluid on the napkin. Ashley Fulmer (“Fulmer”), a DNA analyst at Bode testified that another Bode DNA analyst, Sarah Shields (“Shields”), analyzed the DNA extracted from the biological material on the items submitted to Bode, namely swabs collected from Victim, Victim’s blood sample, and the napkin. Fulmer also stated that she is Shields’s supervisor. Over objection, Fulmer introduced a report prepared by Shields indicating the results of her testing.

Fulmer explained the results to the jury which indicated that swabs from the vaginal, perivaginal, and anal regions contained a male DNA profile for the same unspecified male, “male 1,” and the biological material on the napkin contained a DNA profile for a different unspecified male, “male 2.” 9 Also over Cooper’s objection the report was entered into evidence. Rania Stanos, the DNA technical leader for the Baltimore City Police Department Crime Lab, testified that she analyzed the DNA profile developed from the biological material on the swab of Cooper’s inner-cheek and compared it to the results of the DNA tests conducted by Bode on the swabs taken from Victim and the napkin. Santos stated that her conclusions were that the DNA profile developed from the biological materials on the napkin sample, “male 2,” were consistent with Cooper’s DNA profile from the swab of his inner-cheek. ²¹⁸ Finally, a forensic nurse examiner, Daniel Sheridan (“Sheridan”), testified that he conducted the forensic examination of Victim when she was taken to the hospital. He stated that he collected forensic evidence from Victim including the swabs and the napkin which Sheridan packaged in a sealed bag.

Sheridan additionally stated that Victim complained of pain in the rectal area and Sheridan observed small tears in that area. Finally, Sheridan testified that Victim told him that she had consensual unprotected sexual relations with her boyfriend three days prior to the attack. After being asked by the prosecutor, Sheridan testified that it was possible that Victim’s boyfriend could be the source of the biological material found on swabs of Victim’s vaginal, perivaginal, and anal swabs, or in other words, that Victim’s boyfriend could be “male 1.” There is no evidence that Fulmer or Santos participated in or observed the DNA testing of the biological material found on the napkin. Additionally, Shields (analyst) was never called to testify, and the State never showed that she was unavailable or that Cooper had a prior opportunity to cross-examine her.

Moreover, over Cooper’s objection, the report prepared by Shields indicating, among other things, the results from the DNA test on the napkin, was admitted into evidence. During the State’s closing arguments, the prosecutor reviewed the testimony of its witnesses and focused primarily on Victim’s testimony. The prosecutor expressed that Victim identified Cooper as her attacker, both in a photo lineup and in-court, and then indicated, “[the State] ha[s] more than that. With that napkin we had the analyst from the Baltimore City Lab come and [she was] able to [tell] you whose DNA that was.” Presenting her conclusion to the jury, the prosecutor stated, “[a]nd low and behold, ladies and gentlemen, you know whose DNA that was?

It was Orville Cooper’s DNA. That was the same person that [Victim] said raped her, sodomized her, forced [her] to perform oral sex. That DNA on that napkin came back as the same person [Victim] has told you did all these terrible things to her.” ²¹⁹ As noted above, the jury returned guilty verdicts against Cooper for second degree rape, and multiple counts of second, third, and fourth degree sexual offenses and one count of second degree assault. Additional facts will be supplied as necessary to address Cooper’s challenges to his conviction.

DISCUSSION I. DNA Analysis of the Biological Material on the Napkin Cooper’s first three challenges to his conviction relate to the introduction of the report prepared by Sarah Shields, indicating the results of the DNA tests relating to the physical evidence in this case (the “Shields report”), through the testimony of Ashley Fulmer. Cooper contends: Bode ... analyst, Sarah Shields, conducted the testing and analysis of the [physical evidence in this case] — consisting, in relevant part, of the vaginal swab, perivaginal swab, anal swab, and [the napkin] — in order to obtain any DNA profiles from each. Sarah Shields did not testify at trial. Instead, the State was permitted, over objection, to adduce testimony from another Bode ... analyst, Ashley Fulmer, regarding the analysis that had been done by Sarah Shields.

Over further objection, the trial court admitted Sarah Shields’[s] report into evidence through Ashley Fulmer. The trial court erred in admitting the report and/or attendant testimony: 1) without a proper foundation in the form of a demonstrated chain of custody of the evidence tested; 2) in violation of Maryland evidentiary rules prohibiting the admission of hearsay; and/or 3) in violation of [Cooper’s] State and/or federal constitutional right of confrontation. (Footnote and citations omitted.) Ashley Fulmer, “a supervisor and a senior DNA analyst” at Bode, was called as an expert witness during the State’s casein-chief. During Fulmer’s voir dire, among other things, she testified about the duties of a DNA analyst at Bode, and more specifically about her role as a supervisor.

Fulmer noted that she “basically manage[s] a group of DNA analysts[,]” “over ²²⁰ see[s] the functioning of that group[,]” and reviews case files. Fulmer testified that reviewing case files includes both an “administrative review” that “evaluate[s] sort of, you know, grammar, there’s punctuation and that sort of stuff[,]” and a “technical review” where she would “go through everything in the case, make sure procedures were followed, make sure things were tested in the right manner and all of that. Make sure that the results, any conclusions that were made are reported accurately.” After being accepted as an “expert in forensic DNA analysis!],]” Fulmer testified about the “quality assurance system at work” at Bode, including that: the building, the evidence department, and the laboratories are secure; there are “educational requirements of the analysts;” there is “proficiency testing;” everyone in the lab wears “protective gear” including lab coats, goggles, and gloves; all of the equipment is “maintained and calibrated on a regular basis;” and Bode runs controls on all of the samples and case files are reviewed. Fulmer then explained to the jury, in general, what DNA is, and how it is analyzed by examining thirteen locations on DNA identified in accordance with the FBI guidelines.

Fulmer further testified about the procedures generally used at Bode from the time evidence arrives to be analyzed. Eventually, Cooper’s attorney objected to Fulmer’s testimony concerning the general practices employed at Bode, noting that “my objection is that we’re not dealing with this case. We’re dealing with general procedure. If we’re going to get an education in DNA procedure — ” at which point the trial judge responded that Fulmer could testify about general procedures because she is an expert.

When Cooper’s counsel again pointed out that his “quarrel is that we’re not hearing about what happened in this case[,]” the court concluded that “[Fulmer] gets to it when she wants to get to it” and that “she can talk about general procedure if she wants.” When asked if there is a way that the lab protects against evidence becoming “mixed up with other cases[,]” Fulmer pointed out that analysts only work on one case at a time and ²²¹ “within a case [an analyst] only ever ha[s] one item of evidence open at a time.” Fulmer stated that once an analyst finishes “processing]” one item, the analyst is required to seal it back up with evidence tape and sign that it is sealed before moving on to another piece of evidence. Fulmer then testified about the present case. She expressed that in May of 2006, when the biological material on swabs taken from the victim and the napkin were tested at Bode, she supervised Shields. Noting that she did not review all of Shield’s cases, because there were multiple reviewers on her team, Fulmer testified that she did review Shields’s work in the present case.

When asked by the prosecutor what she reviewed, Fulmer testified: When it comes to me for review I have all the data that [Shields] generated in the processing of this case. I have her final case report. So I’ll sit down and make sure, like I said, that the data — she performed the right procedures, that the data looks accurate and then I also agree with the results that she generated and issued in her report. After Fulmer expressed that she had read the report before Shields “signfed'j off’ on it, the prosecutor gave Fulmer a copy of the first two pages of the Shields report.

Fulmer then, over objection, testified that the pieces of evidence received and tested by Bode in the present ease were items labeled as swabs from Victim’s vaginal, perivaginal, and anal regions, “stains from tissues” (the napkin), and a “reference standard” from Victim. Fulmer additionally testified about the specific procedures used at Bode to test the different items and evaluate the results. When asked by the prosecutor, “[i]n this particular case, the case we’re speaking about today, based on your review of this file and the fact that you were her [Shields’s] technical reviewer, were those the processes that were followed?[,]” Fulmer answered yes. When the prosecutor then asked, “[a]nd was there any results to be evaluated?^]” again Fulmer agreed.

When the prosecutor then asked Fulmer to tell the jury about the results, Cooper ²²² objected and the trial judge directed the parties to approach the bench for a conference: [Cooper’s Attorney]: — I’m objecting A, to the question, can you tell us about the results. I don’t really know what that means. I know. [Judge]: Yeah, no, no, no, no. [Cooper’s Attorney]: And I’m objecting to her giving any opinion of somebody else’s analysis— [Judge]: Right. That’s why I brought you up, just I wanted to deal with that.

Do you want to be heard on that so I can rule and then we can move on? [Cooper’s Attorney]: Your Honor, there’s been no evidence of the items. First of all, there’s been no chain of custody. We don’t know anything that — what the State — the police department. We don’t know how the [napkin] that was recovered with the sperm.

No chain of custody has been established. She didn’t — we have no chain of custody that has been established that the evidence was from Baltimore City to Bode testing lab. We have her statement that this is her normal procedure. That’s fine.

There’s no testimony it happened in this case. [Judge]: Okay. [Prosecutor]: There’s no chain of custody required. It goes to weight not admissibility. Furthermore the State contends there has been a chain of custody because we’ve talked about the CC numbers and it’s been admitted the CC numbers and it’s been (inaudible). So the State, although it feels that we don’t have to prove chain of custody that we have more than proven chain of custody. [Judge]: Okay.

Now I know what the argument is so that we can move on. I’m going to overrule the objection. The issue has to do with — I do agree is with the weight and how you’re going to argue it as opposed to whether it actually comes in. And then also I’m ruling on the fact that she can testify to — as an expert to the reports of another individual. ²²³ After the trial judge’s ruling, Fulmer proceeded to read and explain the results indicated in the Shields report.

Of particular importance to this case, Fulmer identified that biological material on the swabs from Victim’s vaginal, perivaginal, and anal region contained a mixture of DNA from Victim and the same male, labeled “male 1,” and on the sample from the napkin there was DNA from a different male, “male 2.” After Fulmer read and explained the content of the Shields report to the jury, the report was admitted into evidence over Cooper’s objection. Fulmer’s testimony then addressed the controls generally in place to ensure the reliability of the test results formulated at Bode. Finally, Fulmer finished her direct testimony by answering two questions from the prosecutor: [Prosecutor]: And when you read through Ms. Shield[s]’s paperwork and read through her results and looked at everything!,] did you concur with her results? [Fulmer]: Yes. [Prosecutor]: Okay. And did you have any reason to believe that something didn’t perform as it was expected to? [Fulmer]: No. A. Chain of custody of the napkin.

In his brief on appeal, Cooper argues that “[t]he trial court erred in admitting the [Shields] report and attendant testimony [from Fulmer] without a proper foundation in the form of a demonstrated chain of custody of the evidence tested.” Cooper contends that “in order to be admissible, real evidence must be in substantially the same condition that it was in at the time of the crime and must be properly identified! ]” (quotation omitted), and “when the State seeks to introduce real evidence in a criminal trial, it has the onus of establishing a proper chain of custody for that evidence!.]” Cooper asserts that: In the instant case, Detective Grubb testified that he submitted the SAFE kit to evidence control. Police [florensic [bjiologist, Matthew [Stielper], then testified that his report reflected his examination of the items of evidence in this ²²⁴ case and that he later packaged and resealed the items. However, there was no testimony or evidence accounting for how the evidence was forwarded to Bode Technology. Ashley Fulmer spoke only in general terms regarding how evidence is obtained and maintained by Bode Technology.

There was no testimony or evidence that the specific items of actual evidence in this particular case were obtained and maintained by Bode in accordance with their general procedure up to and through testing and analysis, much less any evidence of how they were obtained and maintained at all. There was no accounting by Bode analysts for the handling of the actual evidence in this case, let alone any accounting sufficient to establish the chain of custody necessary in order [to] guarantee its integrity from seizure to analysis by Bode Technology. Under the circumstances, it was error to admit the report and subsequent related testimony regarding the results of tests that were conducted on evidence that was not duly accounted for. Reversal is required on this basis alone.

(Footnote and citations omitted.) The State responds in its brief that Cooper’s objection on the grounds of chain of custody was “properly overruled, as it was without merit.” The State further contends that Cooper, on appeal, must show that his objection had merit and that “the trial court abused its discretion in determining that a sufficient chain of custody had been established[,]” which Cooper failed to do. In addition, the State asserts that “[establishing an adequate ‘chain of custody’ requires showing, to the satisfaction of the trial court, that the provenance of a particular piece of evidence can be established well enough to negate the likelihood of tampering.” (Citation omitted.) The State argues that “it is unclear what ‘chain’ Cooper felt had not been connected regarding Fulmer’s testimony^]” but concluded that the objection “focus[ed] on the chain of custody connecting the semen-soaked [napkin] that the victim gave to the police with the semen that Shields tested at Bode under Fulmer’s supervision.” The State asserts that the prosecution had, through Fulmer and earlier witnesses, “sufficiently established that the item tested by ²²⁵ Shields was what it purported to be, and that it had not been tampered with prior to testing.” It is helpful to review the information that had been presented through testimony by the time the trial judge had admitted the Shields report. Because the DNA that was matched to Cooper’s DNA was from the napkin, we focus on the chain of custody for the napkin. First, Victim testified about her attack and the events after her attack, including that her attacker ejaculated into her mouth, she spit his ejaculate into a napkin, and she still had the napkin in her hand when she arrived at the hospital.

This was bolstered by Roommate who testified that he saw the napkin in her hand when she came in the door. Detective Grubb then testified that: (1) Victim had a SAFE exam, which was performed “[t]o collect forensic evidence that ... may have been left behind by a suspect[;]” (2) several days later, he removed from the “SAFE locker” the physical evidence collected as a result of the SAFE exam and submitted it to the police evidence control unit; (3) the results of SAFE exams are put in the SAFE locker by the nurse who conducts the SAFE exam after he or she completes the exam; (4) a “SAFE locker” is a locker that is in the room next to where they conduct the exams and is secured behind two locked doors; and (5) the people with access to the SAFE locker are the “SAFE nurses, security that unlocks it and the primary detective who recovers it.” Grubb additionally testified that when submitting the evidence to the police evidence control unit, an officer “fill[s] out a 56 form which is a form [that] just states what the item is to be submitted to evidence control ...,” and that they are submitted to evidence control “[flor chain of custody purposes, to ensure that it’s not tampered with and so that the [police DNA] technicians can recover it Grubb further stated that when the police get pieces of evidence from SAFE exams they are: (1) “contained in an envelope and a bag if there’s additional clothing that is too large or bulky to fit into the envelopes[;]” (2) sealed with a ²²⁶ “piece of tape over it so that it cannot be tampered with[;]” and (3) marked with “a biohazard symbol on it and it’s marked SAFE exam, Sexual Assault Forensic Exam.” He further testified that in the present case, the complaint number was also written on the evidence taken from the SAFE exam. He also indicated that he “believed” that both Grubb’s name and Victim’s name were on the package. Grubb testified that the material is sealed with tape and marked with identifying information “[s]o that they can’t be tampered with and ... the name of the detective and the victim so we know who it came from and who is the primary investigator on the case.” Matthew Stielper, the forensic biologist who testified that he conducted tests on the pieces of physical evidence in the case and found semen on the napkin, provided further testimony about the chain of custody.

He first explained how evidence in general is handled, noting that: (1) the evidence is brought to the biology unit and “it’s placed in our evidence vault which is secured” and “[o]nly analyst whose ID card will let them in there, you know, can access that evidenee[;]” (2) once he collects the evidence “out of our vault I sign for it on our chain of custody indicating that it’s in my possession and nobody else’s so I’m responsible for it[;]” (3) before he opens the evidence and puts it on his “bench” to be tested, he will clean his bench to “make sure, you know, everything is elean[;]” and (4) he will “document whether the evidence was properly sealed to make sure nobody tampered with it beforehand.” Stielper then confirmed that he worked on the “case under CC number 068B07346,” and stated that all of the items under that “property number ... came from the rape kit that was collected from the victim.” After testifying about the tests conducted on the swabs from Victim, Stielper addressed his testing of the item “listed as the tissue of the ejaculate[,]” or in other words, the napkin. He noted that “I don’t have anything in my notes about it being improperly packaged so I don’t recall what — what the outer package was.” When asked, however, if it would have been “enclosed in something” and if it was not, whether he would have documented that in his notes, Stielper answered “yes.” ²²⁷ After again agreeing that when he received the evidence in this case it was sealed and had “the CC number,” Stielper stated that when he was finished with his analysis of the different items, including the napkin, he “properly seal[ed] the packages again.” Elaborating, Stielper testified that he “put some evidence tape across wherever I open the package and after I put the blue tape on I sign my initials and date over that seal. So in other words, half of my signature is on the tape and the package as well. That way if any kind of tampering of that evidence occurred it would be obvious based on how I wrote my signature over that seal.” Next, Ms. Fulmer, the supervisor from Bode, testified.

As noted above, she testified about the general safeguards in place at Bode to ensure the reliability of DNA test results. Although Fulmer also testified that she does not review every one of Shield’s cases, when asked if she reviewed “[Shields’s] case under case number 068B as in boy, 07346[,]” Fulmer said yes. Looking at the Shields report, which indicated the results of Shields’s analysis in the case, Fulmer identified the materials tested, including the napkin, and when she was asked to testify about the results indicated on the Shields report, Cooper objected. As noted above, Cooper argued at trial that the State failed to establish the chain of custody of the napkin, specifically between the Baltimore City Police and Bode.

The prosecutor responded that the State did not have to establish chain of custody because “[i]t goes to weight not admissibility^]” and furthermore the State sufficiently established the chain of custody. The trial judge agreed with the State and overruled the objection noting “[t]he issue has to do with — I do agree is with the weight and how you’re going to argue it as opposed to whether it actually comes in.” When determining whether a proper chain of custody has been established courts examine whether there is a “reasonable probability that no tampering occurred.” Breeding v. State, 220 Md. 193, 199 , 151 A.2d 743, 747 (1959). As the Court of Special Appeals has noted in Wagner v. State, 160 ²²⁸ Md.App. 581 , 864 A.2d 1037 (2005), “[t]he circumstances surrounding [an item of evidence’s] safekeeping in that condition [that is substantially the same as when it was seized] in the interim need only be proven as a reasonable probability[,] and in most instances is established by responsible parties who can negate a possibility of tampering and thus preclude a likelihood that the thing’s condition was changed.” 160 Md.App. at 552, 864 A.2d at 1049-50 (quotation omitted). There is sufficient evidence in the record for the conclusion that “no tampering occurred” with respect to the napkin.

The Shields report shows the results of tests from case “06-8B-07346,” the same number that appeared on the sealed envelopes containing evidence which Stielper tested in the BPD lab. The chances of the napkin not being the napkin Victim brought to the hospital but somehow ending up being labeled as part of the case is unlikely. Similarly, the chances of Cooper’s DNA being placed on the napkin through tampering when the napkin had been transferred from the Victim to a locker behind locked doors at the hospital to the evidence control unit to the police laboratory and then to Bode is remote. Because the evidence presented indicates that it is unlikely that tampering undermined the integrity of the napkin, we conclude that the State has provided sufficient testimony to establish the chain of custody as to the napkin.

See Nixon v. State, 204 Md. 475, 483 , 105 A.2d 243, 247 (1954). B. Admissibility of the Shields report under the rules of evidence. In his appellate brief, Cooper asserts that “[t]he trial court erred in admitting the report and attendant testimony because it amounted to inadmissible hearsay.” Cooper notes that: In the instant case, Ms. Fulmer identified State’s Exhibit 4 as follows: “This is the first two pages of the report that was generated in this ease by Sarah Shields,” and then Ms. Fulmer proceeded to testify as to the contents of that report (i.e., “the results of the analysis by Ms. Shields”). The entirety of [ ] Shields’[s] report and [ ] Fulmer’s testimony ²²⁹ thereon was hearsay, and its substance was clearly offered for the truth of those matters.

As to the report, the State made no effort to show that the rule proscribing the admission of hearsay did not apply or what, if any, exception to that rule applied. Likewise, there was no proffer by the State as to what exception, if any, applied to Ms. Fulmer’s testimony regarding the report. The trial court erred in admitting the report and the subsequent testimony and the error was not harmless. Reversal is required on this basis alone.

(Footnote and citation omitted.) The State responds in its brief that the trial judge correctly ruled that Fulmer, an expert witness, could testify about the reports of another individual pursuant to Maryland Rule 5-703, as the basis for her expert testimony. The State highlights that: Fulmer was being asked if, in her expert opinion, Shields had complied with the appropriate standards and had developed accurate data regarding the various items she had tested, such that the report she generated gave accurate DNA profiles of the various contributors to the biological evidence recovered from the [napkin] and the swabs. The court did not abuse its discretion in determining that the jury could, in fact, hear about the raw data generated by Shields. Such information would be useful to the jury in evaluating both Fulmer’s testimony that the proper procedures were followed and accurate data generated, and, later, Rania Santos’s testimony that one of the unknown DNA profiles generated by Shields was consistent with a DNA profile of Cooper that Santos