State v. Miller

State of Maryland v. Oliver Miller, No. 24, September Term, 2020. Opinion by Biran, J. CONSTITUTIONAL LAW – ARTICLE 21 OF THE MARYLAND DECLARATION OF RIGHTS – SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION – RIGHT OF ACCUSED TO CONFRONT WITNESSES – The Court of Appeals held that a trial court does not violate a criminal defendant’s rights to confrontation and cross-examination, where the court allows the technical reviewer of a report analyzing DNA evidence to testify about the results of that analysis, without requiring the primary author of the report to be available for cross- examination. Given the thorough, substantive review that a technical reviewer undertakes prior to signing off on the report, the technical reviewer becomes the functional equivalent of a second author of the report. Thus, when the technical reviewer expert witness conveys information in the report to the jury, the witness does not impart testimonial hearsay, but rather provides their independent opinions based on their independent review of the entire testing process and the resulting data.

In this case, the testifying witness in Respondent’s trial was the analyst who served as the technical reviewer of the relevant report and adopted its conclusions as her own independent opinions prior to the report’s issuance. As such, the technical reviewer did not convey testimonial hearsay to the jury. Therefore, there was no violation of Respondent’s rights to confrontation and cross-examination under Article 21 of the Maryland Declaration of Rights or his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution by virtue of the technical reviewer testifying instead of the primary author of the report. CONSTITUTIONAL LAW – ARTICLE 21 OF THE MARYLAND DECLARATION OF RIGHTS – SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION – RIGHT OF ACCUSED TO CONFRONT WITNESSES – HARMLESS ERROR – The Court of Appeals held that any error in the expert witness’s reference to the non-testifying primary author of the report in her testimony was harmless beyond a reasonable doubt.

Respondent did not cross-examine the testifying witness concerning the accuracy of the DNA match or the statistics, which were also contained in the non-testifying analyst’s report. Under these circumstances, there is no reasonable possibility that the two brief and isolated references to the primary author’s conclusions may have contributed to the rendition of the guilty verdict. Circuit Court for Baltimore City Case No.: 117138025 Argued: December 3, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 24 September Term, 2020 STATE OF MARYLAND v. OLIVER MILLER Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. Opinion by Biran, J. Filed: August 5, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-08-05 10:29-04:00 Suzanne C. Johnson, Clerk Since the early 1990s, law enforcement officers throughout the United States have solved criminal cases with the aid of the Federal Bureau of Investigation’s Combined DNA Index System (“CODIS”) and the associated National DNA Index System (“NDIS”).

These tools permit law enforcement agencies to exchange and compare deoxyribonucleic acid (DNA) profiles in connection with crimes where no suspect has been identified. The indexes link DNA evidence obtained from crime scenes with the known DNA profiles of individuals contained in the indexes. To date, CODIS and NDIS have generated more than 500,000 leads for participating law enforcement agencies. This is one of those cases.

In 2008, an unidentified assailant sexually assaulted L.J.,1 a 19-year-old woman, in her Baltimore City apartment. Forensic evidence was collected at the woman’s apartment and from her body during a Sexual Assault Forensic Examination (“SAFE Exam”). Forensic scientists generated a DNA profile from the evidence for an “unknown male #1,” the presumptive assailant, but the case went cold. Nine years later, CODIS produced Respondent Oliver Miller as a match for “unknown male #1.” A grand jury subsequently charged Miller with several offenses relating to the sexual assault of L.J. At Miller’s trial, the State produced several witnesses who were involved in the collection and analysis of the forensic evidence, but the State did not call Thomas Hebert 1 In a prior case involving the rape of an adult victim, we declined to “use the victim’s name or initials” in order to “protect her privacy.” Raynor v. State, 440 Md. 71 , 75 n.1 (2014).

We use the victim’s initials here because we have decided to include as an appendix to this opinion the crime lab report that is at the center of the constitutional dispute we consider in this case. As redacted in the record before us, that report refers to the victim by her initials. as a witness. Formerly an analyst in the Baltimore Police Department’s Forensic Services Division, Mr. Hebert was the primary author of two reports that analyzed and/or compared DNA evidence relevant to this case: (1) a 2008 report stating that the DNA of “unknown male #1” was identified on the evidence collected from L.J. and her apartment; and (2) a 2017 report naming Miller as the source of that DNA. By the time of Miller’s trial, Mr. Hebert had relocated to Georgia.

The State proposed to offer the testimony of two other Forensic Services Division analysts in Mr. Hebert’s stead: Kelly Miller (no relation to Respondent Oliver Miller), who was the technical reviewer of the 2008 report, and Kimberly Morrow, who was the technical reviewer of the 2017 report. In response, Miller moved on hearsay and confrontation grounds to preclude the State from offering evidence of Mr. Hebert’s analyses through these witnesses. The trial court denied the motion and permitted Ms. Miller and Ms. Morrow to testify over Miller’s objection. The jury convicted Miller on all counts.

In this appeal, we are concerned with Ms. Morrow’s testimony concerning the 2017 report, which named Miller as the suspect in the 2008 sexual assault of L.J. The question before this Court is whether a trial court violates a criminal defendant’s constitutional rights, where the court allows the technical reviewer of a report analyzing DNA evidence to testify about the results of that analysis, without requiring the primary author of the report to be available for cross-examination. For the reasons that follow, we answer that question in the negative and affirm Miller’s convictions. 2 I Background A. CODIS Program Requirements for Participating Laboratories In 1990, the FBI piloted the CODIS Program with 14 participating state and local laboratories. See Federal Bureau of Investigation, Combined DNA Index System (CODIS), available at https://perma.cc/RNB8-96SA. The DNA Identification Act of 1994 authorized the Director of the FBI to establish NDIS and specified the standards for those laboratories that contribute profiles to the indexes.

See Pub. L. No. 103-322, 108 Stat. 2069 (1994) (codified as amended at 34 U.S.C. § 12592 (2017)).2 Today, the indexes contain DNA identification records of persons convicted of and charged with crimes, analyses of DNA samples recovered from crime scenes, analyses of DNA samples recovered from unidentified human remains, and other DNA samples collected under applicable legal authorities. See 34 U.S.C. § 12592 (a). Each laboratory that contributes to the indexes3 must 2 The laws related to CODIS/NDIS have been modified by subsequent legislation since the 1994 enactment.

See DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 114 Stat. 2726 (2000) (granting authority to federal and state officials to collect DNA samples from persons convicted of federal offenses); Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (2004) (expanding DNA collection to persons charged in an indictment or information); DNA Fingerprint Act of 2005, Pub. L. No. 109- 162, 119 Stat. 2960 (2006) (expanding DNA collection to persons arrested and non-United States persons detained under federal authority).

See also Maryland v. King, 569 U.S. 435, 443-46 (2013) (discussing the CODIS Program). 3 CODIS has three levels of indexes. There is the Local DNA Index System (LDIS), which is used by individual laboratories. The State DNA Index System (SDIS) is used at the state level and serves as a state’s database of DNA profiles contributed by LDIS laboratories. NDIS is the national-level index, which contains DNA profiles contributed by participating states.

In Maryland, the Department of the State Police is authorized to 3 comply with the FBI’s Quality Assurance Standards for Forensic DNA Testing Laboratories (“QAS” or the “Standards”) and undergo periodic audits to ensure their continued compliance. See id. § 12592(b). Relevant to this case, Standard 12.1 requires each participating forensic laboratory to “conduct and document administrative and technical reviews of all case files and reports to ensure conclusions and supporting data are reasonable and within the constraints of scientific knowledge.” FBI, Quality Assurance Standards for Forensic DNA Testing Laboratories, Std. 12.1 (2011), available at https://perma.cc/D227-A2GU (“FBI QAS”).4 An administrative review is an evaluation of the final report and its supporting documentation “for consistency with laboratory policies and for editorial correctness.” Id. at Std. 2 (definitions). Under the QAS, an administrative reviewer must: • review the case file and final report for clerical errors and ensure relevant case information is included in the report and accurate; • review the chain of custody and disposition of the evidence; and • follow the laboratory’s administrative review documentation procedures.

See id. at Std. 12.3. collect and store DNA records and samples. See Md. Code Ann., Pub. Safety § 2-501 et seq. (2018 Repl.

Vol. & 2020 Supp.). 4 The QAS were updated in 2020. All references to the QAS in this opinion are consistent with the Standards that were in effect at the time Ms. Morrow performed her technical review of the 2017 report. 4 A technical review, in contrast to an administrative review, is a thorough, substantive review of the primary analyst’s work. Thus, a technical reviewer must be a qualified analyst in the methodology being reviewed.5 Id. at Stds. 5.5, 12.1.1. A technical review includes “an evaluation of reports, notes, data, and other documents to ensure there is an appropriate and sufficient basis for the scientific conclusions.” Id. at Std. 12.1.

Standard 12.2 sets forth the following requirements for a technical review: STANDARD 12.2 Completion of the technical review shall be documented and the technical review of forensic casework shall include the following elements: 12.2.1 A review of all case notes, all worksheets, and the electronic data (or printed electropherograms or images) supporting the conclusions. 12.2.2 A review of all DNA types to verify that they are supported by the raw or analyzed data (electropherograms or images). 12.2.3 A review of all profiles to verify correct inclusions and exclusions (if applicable) as well as a review of any inconclusive result for compliance with laboratory guidelines. 12.2.4 A review of all controls, internal lane standards and allelic ladders to verify that the expected results were obtained. 12.2.5 A review of statistical analysis, if applicable. 12.2.6 A review of the final report’s content to verify that the results/conclusions are supported by the data. The report shall address each tested item or its probative fraction. 12.2.7 Verification that all profiles entered into CODIS are eligible, have the correct DNA types and correct specimen category. 5 A technical reviewer should not be confused with a “technician.” A technician works under the direction of a qualified analyst. FBI QAS, supra, at Std. 2 (definitions). A technical reviewer is a qualified analyst.

Id. Accordingly, “[t]echnicians do not interpret data to reach conclusions on typing results or prepare final reports.” Id. 5 12.2.7.1 Prior to upload to or search of SDIS, verification of the following criteria for DNA profiles: eligibility for CODIS, correct DNA types, and appropriate specimen category. 12.2.7.2 For entry into a searchable category at SDIS, verification of the following criteria for DNA profiles by two concordant assessments by a qualified analyst or technical reviewer: eligibility for CODIS; correct DNA types; and appropriate specimen category. The QAS further requires the laboratory to document each element of the administrative and technical reviews. Id. at Std. 12.4.

To ensure that each laboratory employee involved in casework is proficient, the QAS requires that analysts, technical reviewers, and other relevant personnel periodically be “proficiency tested” in the technology they use in casework. Id. at Std. 13.1.4.1. In addition, the contributing laboratories must be audited annually to evaluate, confirm, and verify that laboratories are meeting the level of quality required. Id. at Std. 15.1.

B. This Case 1. The Crime and Subsequent Investigation On January 19, 2008, L.J., a 19-year-old student, noticed someone who seemed to be following her as she walked home along Eutaw Street in Baltimore City. As L.J. put her keys into the front door of her apartment building, a man came up from behind her, held a knife to her throat, told her not to scream, and ordered her to open the door. Once inside L.J.’s apartment, the assailant forced her to engage in various sexual acts with him for approximately two hours.

During the assault, the assailant forced L.J. to touch his penis with her hand and perform fellatio on him multiple times. Following those acts, he ejaculated on her face, her 6 bedsheet, and pillowcase. He also attempted to penetrate her vagina, kissed her mouth, sucked her breasts, and forced her to shower with him. Later, the assailant saw a bottle of whiskey from which he drank and forced L.J. also to drink.

When the assailant decided to leave, he tied L.J. to a chair using electronics cords and exited with her keys, debit card, cash, and cellphone. L.J. eventually freed herself, escaped her apartment, and called the police from a neighbor’s apartment. The responding officer transported L.J. to a nearby hospital, where a forensic nurse examiner conducted a SAFE Exam on L.J., during which the examiner swabbed L.J.’s body for DNA and took a sample of L.J.’s blood. Meanwhile, detectives collected forensic evidence at L.J.’s apartment.

Thirty-nine items were submitted to the Forensic Services Division of the Baltimore Police Department for analysis, including the evidence collected at L.J.’s apartment and during her SAFE Exam. On November 24, 2008, Thomas Hebert prepared a report stating the results and conclusions of that analysis (the “2008 report”).6 The report contained forensic analysis of six items of evidence: (1) L.J.’s blood card (her known DNA sample); (2) swabs of L.J.’s left breast; (3) swabs of the electronics cords; (4) swabs of the whiskey bottle; (5) vacuum extraction of a washcloth; and (6) a sample from the pillowcase. The report also analyzed DNA collected from a plastic cup recovered by detectives following an interview with a person of interest (referred to in the report as “unknown male #2,” 6 The 2008 report is not part of the record in this case. The information concerning the 2008 report we include here comes from trial testimony. 7 although the contributor of that profile presumptively was the person of interest who had been interviewed).

Mr. Hebert concluded that “unknown male #1” was the source of the DNA found on L.J.’s breast, the pillowcase, electronics cords, and the whiskey bottle. He ruled out the possibility that “unknown male #2” was a contributor to the DNA found on those items. L.J. worked with the police to develop a computer composite sketch of the assailant. She also viewed photo arrays, but was unable to positively identify a suspect.

By December 2008, the case had gone cold. On February 2, 2017, Oliver Miller’s DNA sample was collected and processed in connection with an unrelated sexual assault case by Christy Silbaugh, another DNA analyst in the Forensic Sciences Division. Two months later, on April 3, 2017, the Baltimore Police Department received notification from CODIS of a “hit” in the system, which produced Miller’s DNA profile as a match with the DNA record associated with the pillowcase sample.7 As a result of that notification, Detective Justin Stinnett of the Cold Case Unit was assigned the case. Detective Stinnett made contact with L.J. for further investigation. 7 A CODIS/NDIS hit is “[a] confirmed match that aids an investigation and one or more of the case(s) involved in the match are unsolved.” FBI Laboratory, National DNA Index System (NDIS) Operational Procedures Manual (2021), available at https://perma.cc/KZ3C-SMN5.

We presume that the DNA records and profiles generated from Mr. Hebert’s 2008 analysis were submitted to the statewide DNA database system, because a CODIS hit later produced Miller as a match of the DNA profile generated for “unknown male #1.” At trial, Miller moved to exclude any testimony regarding the CODIS hit. The State agreed that there would be no mention of CODIS or of the other sexual assault case, which led to law enforcement obtaining Miller’s known DNA profile. 8 He and another detective interviewed L.J. and showed her a photo array that included Miller. At that time, L.J. was unable to positively identify Miller as the assailant. Using Miller’s known sample, Mr. Hebert produced a “Supplemental Forensic Biology Report,” dated May 9, 2017 (the “2017 report”).8 The 2017 report concluded that Miller was “the source of the DNA profiles” generated from the pillowcase sample and the swabs of L.J.’s left breast.

The report stated these conclusions with “a random match probability greater than 1 in 7.49 trillion,” which “shows at least 99.9% confidence that the DNA profile is unique” in the world’s population. The report further concluded that the DNA profiles generated from the swabs of the electronics cords (referred to in the 2017 report as “black wires”) and whiskey bottle were “consistent with a mixture of [L.J.], Oliver Miller, and additional minor alleles from an unknown source.” The report did not specifically identify the particular genetic makeup of either the DNA profile associated with “unknown male #1” in the 2008 report or the DNA profile that Ms. Silbaugh generated from Miller’s known sample in 2017. That is, in the 2017 report, Mr. Hebert did not list particular alleles found at the particular loci that comprised the DNA profiles of “unknown male #1” and Miller. He only said that, based on the DNA profiles of the forensic evidence that previously had been analyzed and reported on November 24, 2008, and on Miller’s known DNA profile, which had been analyzed and reported on February 2, 2017, Miller was the source of the DNA contained in the evidentiary samples collected from L.J.’s 8 A copy of the 2017 report (with the victim’s name redacted to show just her initials) is provided as an appendix to this opinion. 9 person and apartment following the sexual assault.

Mr. Hebert also provided other statistical analyses in the 2017 report in addition to that quoted above. A grand jury in Baltimore City charged Miller with several offenses related to the sexual assault of L.J. in 2008. 2. Trial Miller’s jury trial began on June 7, 2018, in the Circuit Court for Baltimore City. At trial, the State produced several experts involved in the collection and analysis of the forensic evidence.9 However, Mr. Hebert – who, by the time of trial, had left the Baltimore Police Department and moved to Georgia – did not testify.

After becoming aware that Mr. Hebert might not testify, Miller’s counsel moved to exclude the 2017 report,10 as well as Ms. Miller’s and Ms. Morrow’s testimony about the conclusions contained in the 2008 and 2017 reports, respectively. For purposes of the motion only, the defense introduced a copy of the 2017 report. Defense counsel argued that the admission of evidence relating to Mr. Hebert’s analyses would violate the rule against hearsay, as well as Miller’s constitutional right to confrontation. With respect to the confrontation challenge, defense counsel argued that the 2017 report was “testimonial” 9 The State called the mobile technician who processed the crime scene, the serologist who submitted the forensic evidence for DNA analysis, the forensic nurse examiner who collected samples from L.J. as part of the SAFE Exam, and the technical reviewers of the 2008 and 2017 reports (Ms. Miller and Ms. Morrow). 10 Defense counsel did not move to exclude Mr. Hebert’s 2008 report, based on her apparent assessment that it was not “testimonial.” However, the State did not introduce the 2008 report into evidence. 10 under State v. Norton, 443 Md. 517 (2015), either because it was a formalized document that stated facts relevant to a potential criminal prosecution, or because it was prepared for the primary purpose of accusing Miller.

The prosecutor clarified that he did not intend to introduce the 2017 report into evidence if Mr. Hebert did not testify, but argued that admission of the testimony of Ms. Miller and Ms. Morrow, as the technical reviewers of the two reports, would not violate Miller’s confrontation rights. According to the prosecutor, the technical reviewer takes the evidence, takes the raw data and just goes through it as though they were going through the whole thing from the start, as though they were Mr. Hebert going through the whole thing from the start, and tests and retests each and every step through the process to make certain that these results are accurate. Thus, according to the prosecutor, although “the actual physical paper DNA report might not be admissible as evidence” if Mr. Hebert did not testify, the two technical reviewers should be permitted to “testify regarding their review of Mr. Hebert’s work and regarding his conclusions.” To resolve the issue, at the suggestion of the State, the trial judge decided to examine one of the technical reviewers – Ms. Morrow – outside the presence of the jury to determine the procedures she used to reach her conclusions as a technical reviewer. Ms. Morrow explained to the trial judge that it is common for more than one analyst to perform the “hands-on work” that goes into the preparation of a DNA report: “We do work together.

So one analyst might perform the lab work. Multiple analysts might perform the lab work. But then all the data generated is reviewed by an analyst at the end who creates that report and then it starts the review process.” 11 Ms. Morrow stated that Mr. Hebert was not responsible for all of the “hands-on work … that went into the report.” Rather, as the creator of the report, “[h]e would just be responsible for reviewing the data at the end and drawing the conclusions, the statistics, and issuing the report.” Indeed, with respect to Mr. Hebert’s 2008 report, Ms. Morrow stated that she had been “responsible for the quantification, amplification and the electrophoresis of the portion of the victim’s blood card.” With respect to Miller’s known sample, Ms. Morrow explained that Mr. Hebert did not do the lab work that generated the DNA profile for Miller, and that a different analyst in the Forensic Services Division, Christy Silbaugh, issued the report that identified Miller’s DNA profile. Thus, Ms. Morrow affirmed that, in the 2017 report, Mr. Hebert “took … his results from 2008 and he compared them with the results from the oral swab of Oliver Miller that were actually prepared by Christy Silbaugh” in connection with an unrelated case.

Regarding the review process after an analyst completes a report, Ms. Morrow explained: We have two types of reviews in our office. We have something called a technical review and we have something called an administrative review. So when an analyst completes their case, they do something called an analyst review first where they go through their case folder, check all of their work. It goes on to a technical reviewer where the technical reviewer checks all of their documentation, checks that the proper procedures were followed, checks that all of the statements and conclusions are correct, checks the statistics, makes sure agreements are made with all of those things, they are consistent with the report and then the technical reviewer will sign off on that report.

Following that, we have an administrative review which is less of the technical aspects but covers things like typographical errors, numbering, the general documentation in the case folder, things like that. 12 Ms. Morrow subsequently expanded on the role of a technical reviewer in the crime lab: Q [W]hat do you do as a technical reviewer? A So as a technical reviewer, we have a checklist that we follow where we review all the work that was done. We make sure that we believe that the statements made are scientifically valid. We review all of the statistics.

We make sure that we are in agreement with the report that has been authored. And then we document those agreements on our forensic biology document checklist and then sign and date it. Q So in laymen’s terms, would it be fair to say that you go step by step through the analysis and instead of actually having hands on and lab [sic], you’re actually doing analysis with numbers? A Right.

We review all of the documentation in the case folder. So in this case, there was no lab work done by—if lab work is done, they’ll review all of that documentation, they’ll make sure it’s complete, that protocols were followed, review the controls, everything that was generated in the case. And then review any conclusions and interpretations that were made. …. Q … [B]ased on your review of Mr. Hebert’s report dated May 9th, 2017, are you able to adopt his conclusions as your own? [DEFENSE]: Objection.

THE COURT: Overruled. A I have reviewed all of his work and I have stated in the document review checklist that I do agree with all of his conclusions in his report and the statistical analysis, yes.[11] 11 Ms. Morrow stated that the crime lab maintains a “review sheet” in each “case folder” upon which “the analyst, the technical reviewer and the administrative reviewer will sign checking off boxes that they have reviewed each of these items.” The “review sheet” for the 2017 report was not admitted as an exhibit at the hearing on the defense motion to exclude Ms. Morrow’s testimony or during Ms. Morrow’s testimony before the jury, and therefore is not part of the record of this case. However, it is undisputed that Ms. Morrow signed off on the 2017 report prior to its issuance. 13 Following Ms. Morrow’s testimony, the trial court denied the motion to exclude her testimony.12 Reflecting on the “protocols and standards” that Ms. Morrow discussed in her testimony outside the presence of the jury, the court observed: [W]hat has impressed me is the fact that they look back over the data that’s been generated. That is, the reviewers, the technical reviewers, in this case Ms. Morrow.

And in other cases, where there’s been challenges … the Courts have said that it’s all right for an expert to come in who actually didn’t do the lab work, who didn’t actually do the extraction and the amplification, things along those lines, but instead relies on the data generated by others’ efforts in making their analysis and making their conclusion. And that’s what I think we have here. We have an individual who is reviewing step-by-step the process, the data generated and then looking to make sure (a) that the conclusion is correct based on the data and the process followed; and (b) not only that the conclusion is correct but there is a certain statistical analysis that goes along with that and ensure that that is done. The court stated that it was not deciding whether the 2017 report was testimonial because the State was not going to offer it in evidence.

The judge subsequently permitted Ms. Morrow to testify over Miller’s continuing objection. Before the jury, Ms. Morrow testified she was the technical reviewer of the 2017 report that Mr. Hebert had produced and that she reviewed his conclusions. She explained that the technical reviewer “reviews all of the documentation that’s been done, all of the conclusions, all of the statistics and then signs off that they believe all of these are valid 12 After the trial court stated that it was denying “the motion to have Ms. Morrow excluded,” the defense did not ask for a ruling with respect to Ms. Miller’s testimony as the technical reviewer of the 2008 report. However, when the State called Ms. Miller as a witness, defense counsel objected to her testimony on hearsay and confrontation grounds.

The trial court overruled that objection. On appeal, Miller has not argued that the admission of Ms. Miller’s testimony concerning the 2008 report was erroneous. 14 conclusions.” Asked whether a technical review is a “rubber stamp,” Ms. Morrow answered: “No. The technical review—we actually look at all of the data and we do review all of the statistics and all of the interpretation.” Ms. Morrow explained that the 2017 report “compared all of the data from 2008 to another known individual,” and that the “known individual is Mr. Oliver Miller.” In stating the results of the various tests, Ms. Morrow used the exact language of the 2017 report in several instances. For example, Ms. Morrow testified that, as to the left breast swabs from 2008, “Oliver Miller is the source of the major portion of the profile.” The 2017 report contained the same language. Similarly, Ms. Morrow testified that the swabs of the black wires “yielded a DNA profile consistent with a mixture of [L.J.], Oliver Miller and additional minor alleles from an unknown source.

Unknown male number 2 is excluded as a potential contributor to the DNA profile.” The 2017 report again included this exact language. The same occurred with respect to Ms. Morrow’s discussion of the swabs of the whiskey bottle. Using almost the exact language of the 2017 report, Ms. Morrow told the jury that “[t]he swabs of the whiskey bottle yielded a DNA profile consistent with a mixture of [L.J.], Oliver Miller and an additional minor allele from an unknown source. Unknown male number 2 is excluded as a possible contributor to the profile.” Ms. Morrow provided the statistical likelihood of a coincidental match for the mixed profiles from the black wires and the whiskey bottle, in both instances again using the same language that Mr. Hebert included in the 2017 report.

She also testified that “Oliver Miller is the source of the DNA profiles” generated from the pillowcase, again using the same language that Mr. Hebert used in the 2017 report. 15 In his last question to Ms. Morrow in direct examination, the prosecutor asked: “And as a result of your technical review, do you agree with the conclusions that Mr. Hebert came to in this case?” Ms. Morrow answered, “I do, yes.” On cross-examination, Ms. Morrow acknowledged that she was not present “when any of this was analyzed.” Miller’s attorney did not question Ms. Morrow about the accuracy of her testimony that Miller’s known DNA profile matched the profile of “unknown male #1” whose DNA was found on the evidentiary samples taken from L.J. and her apartment. Nor did she cross-examine Ms. Morrow about the statistics she conveyed to the jury. On June 14, 2018, the jury returned its verdicts, finding Miller guilty of first-degree rape, attempted first-degree rape, two counts of first-degree sex offense, three counts of third-degree sex offense, and false imprisonment. He was sentenced to an aggregate of 109 years of imprisonment. 3.

Appeal In his appeal to the Court of Special Appeals, Miller argued that Ms. Morrow’s testimony should have been excluded, and that the “erroneously admitted testimony” violated his rights to confront adverse witnesses under Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the United States Constitution. According to Miller, Ms. Morrow’s “testimony reading from Hebert’s report and endorsing its conclusions was testimonial” under State v. Norton. As Mr. Hebert was not available for cross-examination, Miller contended, the trial court should not have permitted Ms. Morrow to put Mr. Hebert’s conclusions before the jury. Miller also argued that the trial 16 court improperly imposed separate sentences for rape and attempted rape, and for multiple counts of third-degree sex offense.

With respect to Miller’s confrontation argument, the State responded that the 2017 report was not “testimonial” and, therefore, there was no Article 21 or Sixth Amendment violation. Alternatively, the State argued that, even if the 2017 report was testimonial, Ms. Morrow, as the technical reviewer of that report, could testify concerning the report’s conclusions without violating Miller’s rights to confrontation and cross-examination. The Court of Special Appeals held that the 2017 report was testimonial because it was both “formal” and “accusatory.” Miller v. State, No. 2053, 2020 WL 737638 , at ⁷ (Md. Ct. Spec. App. Feb. 12, 2020).

The court reasoned that the trial court therefore violated Miller’s constitutional rights to confrontation by allowing Ms. Morrow to “effectively read [the contents of the 2017 report] into evidence as the basis of her expert opinion.” Id. The intermediate appellate court did not address the State’s alternative argument that, as the technical reviewer of the 2017 report, Ms. Morrow was permitted to convey the information in the report to the jury without requiring Mr. Hebert to be available for cross-examination. Concluding that the confrontation error was not harmless beyond a reasonable doubt, the court remanded for a new trial. Id. at ⁸ .

Given this disposition, the court did not reach Miller’s claim of sentencing error. See id. at ¹ . Following the Court of Special Appeals’ decision, the State filed a motion for reconsideration and stay of the court’s mandate, which the Court of Special Appeals denied. On August 21, 2020, this Court granted the State’s motion and stayed the enforcement of the intermediate appellate court’s mandate, pending disposition of the 17 State’s petition for a writ of certiorari.

In its petition, the State presented the following question: Did the Court of Special Appeals err in concluding that the trial court violated Miller’s right to confrontation by admitting the results of DNA testing and analysis through a witness who did not author the report of DNA testing and analysis, but who served as its technical reviewer and thus performed the same analysis and reached the same results as the report’s author? We granted the State’s petition on August 26, 2020. State v. Miller, 470 Md. 223 (2020). II Standard of Review The decision to admit evidence is ordinarily reviewed for abuse of discretion.

See, e.g., Wheeler v. State, 459 Md. 555, 560-61 (2018). However, this case presents a question of law. Accordingly, our review is de novo. Langley v. State, 421 Md. 560, 567 (2011).

To the extent we are called upon to consider a mixed question of law and fact, that review is also de novo. See, e.g., Cartnail v. State, 359 Md. 272, 282 (2000). III Discussion Article 21 of the Maryland Declaration of Rights, provides that, “[i]n all criminal prosecutions, every man hath a right … to be confronted with the witnesses against him; … [and] to examine the witnesses for and against him on oath.” Md. Decl. of Rts. art. 21. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides a criminal defendant with the right “to be confronted with the witnesses against him.” U.S. Const. amend.

VI. 18 In 1980, the Supreme Court held that, when a declarant is not present for cross- examination at trial, the declarant’s prior out-of-court statement is admissible “if it bears adequate ‘indicia of reliability,’” which may be inferred when the evidence “falls within a firmly rooted hearsay exception” or with “a showing of particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court overruled Ohio v. Roberts. After examining the historical background of the Confrontation Clause, the Court stated that its “primary object” is “testimonial hearsay.” Id. at 53 . The Court held that, under the Confrontation Clause, an absent witness’s out-of-court testimonial hearsay statement is inadmissible unless “the [witness] is unavailable[] and … the defendant has had a prior opportunity to cross-examine.” Id. at 59 .

Crawford involved a tape-recorded statement to police by a witness in which she described a stabbing. There was no dispute that the witness’s statement was “testimonial.” However, the Court declined to provide a “comprehensive definition of ‘testimonial.’” Id. at 68 . Over the next decade, the Supreme Court considered the applicability of Crawford to forensic test results in a trio of cases, culminating in the Court’s fractured decision in Williams v. Illinois, 567 U.S. 50 (2012). As we explain in another decision we issue today, Leidig v. State, No. 19 (Md. Aug. 5, 2021), Williams revealed that there was not a majority position on the Supreme Court concerning the minimum requirements for a forensic test report to qualify as testimonial.

See Leidig, slip op. at 1-2, 59-60. Justice Alito wrote an opinion for a four-Justice plurality in Williams in which he stated that, in order for a forensic report to be testimonial for purposes of a defendant’s right to confrontation, the 19 report must be “accusatory” – that is, it must have been prepared for the primary purpose of accusing the defendant of a crime. Williams, 567 U.S. at 82-84 (plurality op.). Justice Thomas wrote an opinion concurring only in the judgment in which he reiterated his long-held view that, “to be testimonial within the meaning of the Confrontation Clause, the declarant must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution” and the statement must “bear[] the formality and solemnity necessary to come within the scope of the Clause.” Id. at 113-14 (Thomas, J., concurring).

In Justice Thomas’s view, an affidavit or a sworn deposition or some other document that certifies the accuracy of its contents satisfies this formality/solemnity requirement. See id. at 111 . Justice Kagan wrote a dissenting opinion for herself and three Justices. See id. at 118-41 (Kagan, J., dissenting).

The dissenting Justices would have applied a different “primary purpose” test that the Court had articulated in the post-Crawford case of Davis v. Washington, 547 U.S. 813 (2006), which did not concern a scientific report, but rather involved statements to a 911 operator and to police in response to investigative questioning. See Williams, 567 U.S. at 135 (Kagan, J., dissenting) (quoting Davis). In Davis, the Court held that such out-of-court statements are testimonial “when the circumstances objectively indicate that there is no … ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. at 822 . With our decision in Leidig, we have adopted a standard under Article 21 for what makes a scientific report “testimonial,” thereby triggering the rights to confrontation and 20 cross-examination as a matter of Maryland constitutional law.

Drawing upon Crawford, Davis, and Justice Kagan’s dissenting opinion in Williams, we hold in Leidig that, “under Article 21, a scientific report is ‘testimonial’ if the author of the report reasonably would have understood that the primary purpose for the creation of the report was to establish or prove past events potentially relevant to later criminal prosecution.” Leidig, slip op. at 3. In this case, the State argued in the Court of Special Appeals that the 2017 report was not testimonial. The State alternatively argued that, if the 2017 report was testimonial, Ms. Morrow nevertheless could convey its results and conclusions to the jury, without violating Miller’s confrontation rights, because she was the report’s technical reviewer. Before this Court, the State now concedes that the 2017 report was testimonial because it was “accusatory” under Justice Alito’s plurality opinion in Williams and this Court’s prior decision in Norton interpreting the various opinions in Williams.

We agree that the 2017 report was testimonial. Thus, as the State acknowledges, an expert who had no prior connection to the 2017 report could not convey its conclusions to the jury without violating Miller’s rights under Article 21 and the Sixth Amendment. However, the State argues that Ms. Morrow was not just any expert witness; rather, she was the technical reviewer of the 2017 report. As such, Ms. Morrow independently verified Mr. Hebert’s results and conclusions and signed off on the report prior to its issuance, thereby adopting its results and conclusions.

Thus, the State argues that Ms. Morrow did not impart testimonial hearsay, but rather conveyed her own independent opinions to the jury based on her own results and conclusions. In other words, according to the State, Ms. Morrow was the witness against Miller concerning the DNA profile match, not Mr. Hebert, and Mr. 21 Hebert therefore was not required to be present for cross-examination about his results and conclusions. Miller argues in response that Ms. Morrow’s status as the technical reviewer is immaterial. Rather, Miller contends, a witness like Ms. Morrow, who did not participate in, supervise, or observe any of the physical lab work underlying the DNA analysis cannot properly testify to that analysis without the analysts who did the lab work being present for cross-examination.

In addition, Miller argues that, even if Ms. Morrow could testify about the analysis contained in the 2017 report, she improperly relayed Mr. Hebert’s opinions to the jury by reading the report to the jury verbatim and stating that she agreed with the conclusions Mr. Hebert reached in the 2017 report. In other words, according to Miller, Ms. Morrow did not convey her independent opinions to the jury, but instead improperly provided the jury with Mr. Hebert’s opinions. As discussed below, we agree with the State. Where a testifying expert was the technical