State v. Norton

BATTAGLIA, J. This case presents us with the question of whether a Forensic DNA Case Report, not executed under the penalty of perjury, but containing the language of “within a reasonable degree of scientific certainty”, was testimonial within the meaning of Williams v. Illinois, 567 U.S.-, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012). The testimonial issue was queued up when DNA was found on a mask that, according to witnesses, had been used in a robbery; the mask later was identified as potentially belonging to Harold Norton, Jr. 1 A small piece of the mask that contained saliva, from which a DNA sample was extracted, was sent to The Bode Technology Group, Inc., a commercial ⁵²⁰ DNA testing company, “based” in Wharton, Virginia, along with a buccal swab 2 obtained from Norton for DNA comparison. An analyst at Bode Technology created and executed a Forensic DNA Case Report, which was comprised of three pages on the lab’s letterhead addressed to the Baltimore County Police Department, which contained the results of her comparison of a “ ‘buccal swab from suspect Harold Norton’ ” and a “ ‘cutting from ski mask[’]”. On the second page, above her signature, the analyst documented her ultimate conclusion, that “within a reasonable degree of scientific certainty, Harold Norton (2S06-062-01) is the major source of the biological material obtained from [the mask]”.

The Report reflected the following: 3 [First page] Bode Technology 10430 Furnace Road Lorton, VA 22079 Phone 703-644-1200 Forensic DNA Case Report September 28, 2006 To: BODE Case#: 2S06-062 Laura Pawlowski Agency Case# : 06-188-1852/06-4567 Baltimore County Police Department Forensic Services 700 East Joppa Road Towson, MD 21286 List of Evidence Received on August 29, 2006 for DNA analysis: BODE # Agency ID Description 2S06-062-01 - 3521-001.1 Labeled as “buccal swab from suspect Harold Norton” 2S06-062-02 4257-010.1 Labeled as “cutting from ski mask (+ amylase phadebas dark blue)” CASE REVIEW AND RESULTS: ⁵²¹ The items listed above were processed for DNA typing by analysis of the 13 CODIS Short Tandem Repeat (STR) loci and the gender determination locus, Amelogenin. Appropriate positive and negative controls were used concurrently throughout the analysis. The results of the analysis are summarized in Table 1. 1. A mixed DNA profile was obtained from evidence item 2S06-062-02. 2.

A complete DNA profile was obtained from reference item 2S06-062-01. The DNA profiles reported in this case were determined by procedures that have been validated according to standards established by the Scientific Working Group on DNA Analysis Methods (SWGDAM) and adopted as Federal Standards. [Second page] BODE Case #: 2S06-062 Date: September 28, 2006 Agency Case#: 06-188-1852/06-4567 CONCLUSIONS AND STATISTICS: 1. The DNA profile that was obtained from evidence item 2S06-062-02 is a mixture that includes a major component male DNA profile. The major component male DNA profile matches the DNA profile obtained from the reference item from Harold Norton (2S06-062-01).

The probability of randomly selecting an unrelated individual with this DNA profile is: 1 in 900 Quintillion (1 in 9.0 x 10 20 ) from the Caucasian population; 1 in 1.5 Quintillion (1 in 1.5 x 10 18 ) from the African American population; 1 in 18 Quintillion (1 in 1.8 x 10 19 ) from the SW Hispanic population; 1 in 27 Quintillion (1 in 2.7 x 10 19 ) from the SE Hispanic population. Therefore, within a reasonable degree of scientific certainty, Harold Norton (2506-062-01) is the major source of the biological material obtained from evidence item 2506-062-02. ⁵²² The evidence and extracts will be returned to the Baltimore County Police Department. Report submitted by: -/s/- Rachel E. Cline, MFS DNA Analyst III -/s/- Susan Bach, MFS Forensic Casework Manager (emphasis added to conclusion). Norton’s first trial in which he was charged with armed robbery ended in a mistrial.

During a second trial, 4 the State attempted to introduce the Forensic DNA Case Report into evidence through the testimony of a Bode Technology supervisor, without calling the analyst who had authored and signed the Report. The supervisor testified, ultimately, that he had “reviewed all the materials, all of the notes, the lab notes, all of the data that was generated, the paperwork and the final report.” Before the Report was admitted, however, Norton’s counsel raised two issues, one of which related to discovery, which is not before us. The other objection forms the gravamen of the present dispute — that the Confrontation Clause would be violated were the Report to be admitted under the umbrella of the testimony of the supervisor, because the original analyst, then, could not be cross-examined. The State retorted that Norton had waived the objection, because his counsel had stipulated to the Report’s admissibility during the first trial.

At the second trial, the Report was admitted as State’s Exhibit 10A. Norton appealed to the Court of Special Appeals. 5 In an unreported opinion, our intermediate appellate court held that ⁵²³ admission of the Report without the analyst’s testimony violated Norton’s ability to confront his accuser under Derr v. State, 422 Md. 211 , 29 A.3d 533 (2011) (“Derr I”). 6 Norton v. State, No. 2382, slip op. at 13-15 (Md.App. Nov. 21, 2011) (“Norton I ”). Subsequently, the Supreme Court granted certiorari in Derr I and ultimately vacated its mandate in light of Williams v. Illinois, 567 U.S. -, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012), and remanded the case to us for further proceedings. Maryland v. Derr, — U.S.-, 133 S.Ct. 63 , 183 L.Ed.2d 700 (2012).

In Derr II, after having heard arguments, we concluded that the three exhibits in issue that identified Derr as the source of DNA found on the victim, about which testimony had been elicited from someone other than the analyst, had not violated Derr’s right of confrontation. Derr v. State, 434 Md. 88,118-20 , 73 A.3d 254, 272-73 (2013) (“Derr II ”). There was no Confrontation Clause violation, we held, because the exhibits, one of which contained the analyst’s bench notes while the others were DNA profiles consisting only of “a series of numbers and lines”, “[were] neither a sworn nor a certified declaration of fact” and, thus, were not “testimonial”. Id. at 119 , 73 A.3d at 272 (internal quotation marks omitted).

In light of Derr II, we vacated Norton 1 7 and remanded it to the Court of Special Appeals for further proceedings. State ⁵²⁴ v. Norton, 435 Md. 322 , 77 A.3d 1116 (2013) (per curiam). In a reported opinion, our intermediate appellate court once again reversed Norton’s conviction, holding that Norton’s right of confrontation was violated when the Circuit Court admitted the Report without the analyst’s testimony. Norton v. State, 217 Md.App. 388, 390 , 94 A.3d 110, 111 (2014) (“Norton II ”).

We granted the State’s petition for certiorari to consider the following question: Did the Court of Special Appeals err in determining that Norton’s right to confrontation under the federal constitution was violated where a DNA expert testified regarding the work of another DNA analyst, and that expert was a supervisor in the same lab, reviewed the work of the other analyst, and came to his own conclusion that was consistent with the conclusion of the other analyst, but the analyst herself did not testify? State v. Norton, 440 Md. 114 , 99 A.3d 778 (2014). We shall hold that the language “within a reasonable degree of scientific certainty” in the Forensic DNA Case Report rendered the Report testimonial within Williams, 567 U.S. -, 132 S.Ct. 2221 , 183 L.Ed.2d 89 . Our analysis regarding the admission of a forensic document absent the testimony of its author begins with Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). 8 In Crawford , Justice Antonin Scalia, writing for the Court, explored the history of the Sixth Amendment Right of ⁵²⁵ Confrontation; 9 he concluded that the Clause was an attempt to eviscerate the “use of ex parte examinations as evidence against the accused”.

Id. at 50 , 124 S.Ct. at 1863 , 158 L.Ed.2d at 192 . As such, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53-54 , 124 S.Ct. at 1365 , 158 L.Ed.2d at 194 . Justice Scalia’s analysis in Crawford was steeped in the history of England, which, two centuries before the Revolution, according to Justice Scalia, began to incorporate “elements of the civil-law practice” of continental Europe into its “common-law tradition.” 10 Id. at 43 , 124 S.Ct. at 1359 , 158 L.Ed.2d at 187-88 . One such practice was to allow justices of the peace to examine suspects and witnesses before criminal trials, such that the results of the examination would, at times, be read in court, without hearing from the witness at trial.

Id. at 43 , 124 S.Ct. at 1359 , 158 L.Ed.2d at 188 . Justice Scalia ⁵²⁶ observed that the practice of receiving ex parte statements of accusers at the trial of the accused in English courts “ ‘occasioned frequent demands by the prisoner to have his ‘accusers,’ i.e. the witnesses against him, brought before him face to face.’ ” Id., quoting 1 J. Stephen, History of the Criminal Law of England 326 (1883). As Justice Scalia continued to review English history with respect to the Confrontation Clause, he noted that ex parte pretrial examinations had become routine during the sixteenth century reign of Queen Mary. 11 Id. at 43 , 124 S.Ct. at 1360 , 158 L.Ed.2d at 188 . Justices of the peace were appointed pursuant to then-enacted bail and committal statutes to examine suspects and witnesses in felony cases and certify the results to the court; the certifications were used as evidence at trial. 12 Id. at 44 , 124 S.Ct. at 1360 , 158 L.Ed.2d at 188 .

One of the most notorious, and reviled, instances of the use of the civil law judicial examination procedure in an English court, Justice Scalia observed, occurred during the trial of Sir Walter Raleigh for treason in 1603. Id. at 44 , 124 S.Ct. at 1360 , 158 L.Ed.2d at 188 . According to Justice Scalia, an ex parte examination of Sir Walter Raleigh’s alleged accomplice, Lord Cobham, was read to the jury during Sir Walter Raleigh’s trial, at which Lord Cobham did not appear. Id.

Sir Walter Raleigh had demanded that the judges adhere to the common law tradition of allowing the accused to examine the witnesses against him in court: “ ‘[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face....’” Id., quoting 2 How. St. Tr., at 15-16. The judges refused, and Sir Walter Raleigh was convicted and ⁵²⁷ sentenced to death. 13 Id.

Justice Scalia described the statutory and judicial reforms that developed following Sir Walter Raleigh’s trial in order to limit the use of ex parte examinations. Id. Treason statutes, for example, required witnesses to confront the accused at arraignments; meanwhile, courts developed strict rules of unavailability and admitted ex parte examinations only if the witness was demonstrably unable to testify in person. Id. at 44-45 , 124 S.Ct. at 1360 , 158 L.Ed.2d at 188 .

Toward the end of the seventeenth century, in response to a recurring question of whether an accused should be afforded the opportunity to cross-examine witnesses against him, the Court of the King’s Bench answered in the affirmative, ruling that, “even though a witness was dead, his examination was not admissible where ‘the defendant not being present when [it was] taken before the mayor ... had lost the benefit of a cross-examination.’ ” Id. at 45 , 124 S.Ct. at 1360-61 , 158 L.Ed.2d at 189 , quoting King v. Paine, 5 Mod. 163, 165, 87 Eng. Rep. 584, 585 (1696). Justice Scalia then reviewed the practices embraced by the English in pre-revolutionary America, which continued the civil law tradition of ex parte examinations; the Governor of Virginia, for example, “ ‘privately issued several commissions to examine witnesses against particular men ex parte’ ”, which was met by protests from the Virginia Council advocating for the common law approach of permitting the accused “ ‘to be confronted with, or defend himself against his defamers.’ ” Id. at 47 , 124 S.Ct. at 1362 , 158 L.Ed.2d at 190 , quoting A Memorial Concerning the Maladministrations of His Excellency Francis Nicholson, reprinted in 9 English Historical Documents 253, 257 (D. Douglas ed. 1955). The purview of admiralty courts, which followed civil law, was extended to offenses arising under the Stamp Act so that testimony by private ⁵²⁸ judicial examination from witnesses against accused colonists was admitted into evidence without cross-examination.

Id. at 47-48 , 124 S.Ct. at 1362 , 158 L.Ed.2d at 190 . Justice Scalia opined that in reaction to the use of such ex parte examinations the declarations of rights adopted by many of the colonies around the time of the Revolution guaranteed a right of confrontation. Id. at 48 , 124 S.Ct. at 1362 , 158 L.Ed.2d at 191 , citing, inter alia, Maryland Declaration of Rights § XIX (1776). 14 The absence of a comparable right in the proposed Federal Constitution, Justice Scalia continued, garnered objections during the Massachusetts ratifying convention 15 from those who criticized the use of ex parte examinations as evidence during trial. Id.

In response, the Bill of Rights included in its Sixth Clause the language, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him”. Id. at 49, 124 S.Ct. at 1363 , 158 L.Ed.2d at 191 ; U.S. Const. amend.

VI

From this historical perspective, Justice Scalia extrapolated that the Confrontation Clause embodied two essential premises: “First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused”; and, second, “that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable ⁵²⁹ to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 50, 53-54 , 124 S.Ct. at 1363, 1365 , 158 L.Ed.2d at 192, 194 . Deducing that the Framers intended, by the adoption of the mandate of the Confrontation Clause, to eliminate the use of civil law ex parte examinations at the trial of the accused, Justice Scalia concluded that the Clause adheres when “testimonial hearsay” is being introduced at trial. Id. at 53 , 124 S.Ct. at 1365 , 158 L.Ed.2d at 194 . Justice Scalia posited that the text of the Confrontation Clause reflected such a focus, because “witnesses”, as used therein, served to restrict the use of statements from those who “bear testimony”.

Id. at 51 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 192 . To “bear testimony”, Justice Scalia continued, involves making “ ‘[a] solemn declaration or affirmation ... for the purpose of establishing or proving some fact’ ”, (id., quoting 2 N. Webster, An American Dictionary of the English Language (1828)); therefore, the “primary object” of the Confrontation Clause is to limit the unfettered use of a statement made for the purpose of establishing a fact against the accused at trial, which Justice Scalia termed “testimonial hearsay”. Id. at 53 , 124 S.Ct. at 1365 , 158 L.Ed.2d at 194 . In Crawford , Justice Scalia’s application of the testimonial tenets gleaned from the historical analysis yielded a conclusion that a wife’s statements implicating her husband made during a police interrogation were testimonial and inadmissible without the wife’s presence as a witness at trial.

Id. at 65-68 , 124 S.Ct. at 1372-74 , 158 L.Ed.2d at 201-03 . The Crawford case had evolved from a Washington trial court judge permitting the introduction of the wife’s statements, without her presence, because the “questioner [was] neutral to her”. Id. at 66 , 124 S.Ct. at 1373 , 158 L.Ed.2d at 202 (internal quotation marks and alterations omitted). Although the Washington Court of Appeals reversed the trial court, the Washington Supreme Court vacated the opinion of its intermediate appellate court and reinstated Crawford’s conviction.

Id. at 41 , 124 S.Ct. at 1358 , 158 L.Ed.2d at 186 . ⁵³⁰ The United States Supreme Court reversed, because, as Justice Scalia recounted, “[t]he Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by ‘neutral’ government officers.” Id. at 66 , 124 S.Ct. at 1373 , 158 L.Ed.2d at 202 . Justice Scalia opined that the situation at issue bore the “closest kinship” to the admission of the results of ex parte examinations at trial, because the justices of the peace who conducted examinations under the bail and committal statutes enacted during the reign of Queen Mary “had an essentially investigative and prosecutorial function” and, therefore, bore a strong resemblance to the police officers of the present day. Id. at 53 , 124 S.Ct. at 1365 , 158 L.Ed.2d at 193-94 . The wife’s statements, in Justice Scalia’s calculus, were, therefore, testimonial in any sense of the term.

Id. at 53 , 124 S.Ct. at 1365 , 158 L.Ed.2d at 194 . The Crawford holding, then, that testimonial hearsay is inadmissible at trial without the accused having had the opportunity to cross-examine is foundational. Justice Scalia, however, did not define “testimonial” nor identify its parameters. What we do know is “that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53-54 , 124 S.Ct. at 1365 , 158 L.Ed.2d at 194 .

A number of inquiries can be derived from Crawford , however, to determine whether hearsay would be considered “testimonial”. To whom the statement is made is a key component, because the involvement of a government official, or one acting on the government’s behalf, is strongly associated with what Justice Scalia emphasized as the “core concern” of the Confrontation Clause, (id. at 53, 124 S.Ct. at 1365 , 158 L.Ed.2d at 193-94 ); the involvement of government officers, Justice Scalia explained, “presents unique potential for prosecutorial abuse ... with which the Framers were keenly familiar.” Id. at 56 n. 7, 124 S.Ct. at 1367 n. 7, 158 L.Ed.2d at 196 n.7. ⁵³¹ Another inquiry would involve whether the statement had been solicited and, if so, whether the solicitation occurred under circumstances that “would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”. Id. at 52 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 (describing various valid formulations of “testimonial”) (internal quotation marks omitted). Such an inquiry is consistent with Crawford’s focus on the trial of Sir Walter Raleigh, which made clear that ex parte statements solicited as part of a criminal investigation or prosecution are the archetypal statements that demand confrontation.

Id. at 44 , 124 S.Ct. at 1360 , 158 L.Ed.2d at 188 . Yet another question involves whether, when viewed objectively, the challenged statement was made “for the purpose of establishing or proving some fact” in a criminal prosecution or investigation. Id. at 51 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 188 . Justice Sealia drew a sharp distinction between hearsay made as part of a routine business practice, as part of a casual conversation or to further a criminal conspiracy with hearsay made in order to establish an individual’s role in the commission of a criminal act. 16 Id. at 51-52 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 .

When a statement, then, is made for a nonprosecutorial purpose, it is less likely to be testimonial than one created as part of an ongoing criminal investigation. Id. Another query from Crawford is whether the statement under scrutiny was made in a formal context. During Justice Scalia’s textual analysis of the Confrontation Clause, he noted that a testimonial statement is one that is “formal”, and a “core class” of such declarations is one contained within an affidavit, deposition, prior testimony or confession.

Id. at 51-52 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 . As such, an inquiry with respect to formality may turn on the form of the state ⁵³² ment as well as other circumstances involving the creation of the statement, such as if it was offered in the confines of a police interview room. See id. at 52-53 , 124 S.Ct. at 1364-65 , 158 L.Ed.2d at 193-94 . A final inquiry involves whether there is historical authority for the admission of the challenged statement, despite its testimonial nature.

Justice Scalia reflected upon at least two situations in which such historical precedent exists: when the statement is a dying declaration as that term is understood by the rules of evidence pertaining to hearsay, (id. at 56 n. 6, 124 S.Ct. at 1367 n. 6, 158 L.Ed.2d at 195 n. 6), and when the witness is unavailable due to the wrongdoing of the defendant, (id. at 62, 124 S.Ct. at 1370 , 158 L.Ed.2d at 199 ). Following Crawford , refining what is “testimonial” has been the gravamen of a number of Supreme Court cases, most notably for our analysis, Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S.-, 131 S.Ct. 2705 , 180 L.Ed.2d 610 (2011); and Williams v. Illinois, 567 U.S.-, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012). In Melendez-Diaz , Melendez-Diaz was charged with distributing cocaine. 557 U.S. at 308 , 129 S.Ct. at 2530 , 174 L.Ed.2d at 320 . During trial, three “certificates of analysis” were received in evidence, 17 which contained the results of ⁵³³ forensic testing performed by a state laboratory in response to a police request as required by Massachusetts law.

Id. at 308 , 129 S.Ct. at 2531 , 174 L.Ed.2d at 320 . The technicians who had performed the testing swore to the results of their testing before a notary public. Id. Melendez-Diaz was convicted and the Massachusetts intermediate appellate court affirmed.

Id. at 309 , 129 S.Ct. at 2527 , 174 L.Ed.2d at 320 . The State Supreme Judicial Court denied review, but the United States Supreme Court granted certiorari and reversed, holding that the laboratory certificates fell “within the ‘core class of testimonial statements’ ” and, therefore, were inadmissible. Id. at 310 , 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 , quoting Crawford, 541 U.S. at 51-52 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 . Justice Scalia, again writing for the majority, emphasized the formality of the exhibits as indicative of their testimonial nature.

Id. at 311, 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 . He noted that, although denominated as “certificates”, the exhibits were “quite plainly affidavits” in that they were declarations of fact sworn to by the declarant before an officer authorized to administer oaths and, therefore, the documents fell within the “core class” of testimonial statements. Id. at 310 , 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 . The second point of emphasis, Justice Scalia observed, was that the reports were created specifically to resolve a fact in question, “that the substance found in the possession of Melendez-Diaz ... was, as the prosecution claimed, cocaine”.

Id. ⁵³⁴ The sole purpose of the certificates, Justice Scalia opined, was to provide evidence to be used at trial against Melendez-Diaz and, therefore, it was clear that he should have been afforded an opportunity to cross-examine the analysts who created the certificates. Id. at 311 , 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 . In essence, the certificates were functionally identical to live testimony and were created to do “ ‘precisely what a witness does on direct examination.’ ” Id., quoting Davis v. Washington, 547 U.S. 813, 830 , 126 S.Ct. 2266, 2278 , 165 L.Ed.2d 224, 242 (2006). Justice Scalia then rejected a number of arguments raised by the State, (id. at 313-28, 129 S.Ct. at 2533-42 , 174 L.Ed.2d at 323-32 ), and, in so doing, refined “testimonial hearsay” as it pertains to forensic documents.

He opined that a voluntary statement could be testimonial, thereby rejecting the State’s argument to the contrary. Id. at 316-17 , 129 S.Ct. at 2535 , 174 L.Ed.2d at 325 . Justice Scalia continued that, even were an inquiry from the police to be required for a statement to be testimonial, the fact that investigators had requested the analysis of the substance found in Melendez-Diaz’s possession was a sufficient: As we have explained, “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Davis, supra, at 822-823, n. 1 [ 126 S.Ct. 2266 ]. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a “ ‘witness against’ the defendant,” Brief for Respondent 26, than one who is responding to interrogation.

In any event, the analysts’ affidavits in this case were presented in response to a police request. See Mass. Gen. Laws, ch. Ill, §§ 12-13.

If an affidavit submitted in response to a police officer’s request to “write down what happened” suffices to trigger the Sixth Amendment’s protection (as it apparently does, see Davis, 547 U.S. at 819-820 [ 126 S.Ct. 2266 ]; id., at 840, n. 5 [ 126 S.Ct. 2266 ] (THOMAS, J., concurring in ⁵³⁵ judgment in part and dissenting in part)), then the analysts’ testimony should be subject to confrontation as well. Id. at 316-17, 129 S.Ct. at 2535 , 174 L.Ed.2d at 325 . The later case of Bullcoming v. New Mexico, 564 U.S.-, 131 S.Ct. 2705 , 180 L.Ed.2d 610 (2011), represents the next refinement of the word testimonial in the context of a forensic document. More specifically, the question addressed in Bull-coming was “whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” Id. at-, 131 S.Ct. at 2710 , 180 L.Ed.2d at 616 .

The issue had arisen during Bullcoming’s trial for aggravated driving while intoxicated, when the State failed to call the analyst from the Scientific Laboratory Division of the New Mexico Department of Health who had quantified Bullcoming’s blood alcohol concentration level. Id. The sample had been forwarded to the Laboratory along with information that Bullcoming was stopped and arrested because of an accident. Id.

The analyst recorded the results onto “a standard [Scientific Laboratory Division] form titled ‘Report of Blood Alcohol Analysis’ ” and certified 18 that Bullcoming’s blood alcohol concentration was above the threshold for supporting a charge of aggravated driving while intoxicated. 19 Id. at -, 131 S.Ct. at 2710, 2711 , 180 L.Ed.2d at 616, 617 . The Report was offered as a business record at Bullcoming’s trial during the testimony of ⁵³⁶ another scientist from the Laboratory, who had neither observed nor reviewed the analyst’s work. Id. at-, 131 S.Ct. at 2712 , 180 L.Ed.2d at 618 . The Court of Appeals of New Mexico, as well as the Supreme Court of New Mexico, affirmed Bullcoming’s conviction.

Id. at-, 131 S.Ct. at 2712-13 , 180 L.Ed.2d at 618-19 . The Supreme Court reversed Bullcoming’s conviction and held that introduction of the Report through the testimony of a technician in the Laboratory who had neither performed nor witnessed the testing did not meet the requirements of the Confrontation Clause. Id. at-, -, 131 S.Ct. at 2710, 2713 , 180 L.Ed.2d at 616, 619 . Justice Ruth Bader Ginsburg, writing for the Court, emphasized that the exhibit resembled those in Melendez-Diaz , because it was created to “assist in police investigations” and it was “ ‘formalized’ in a signed document ... headed a ‘report’ ”, which brought it within the bounds of the Confrontation Clause: In all material respects, the laboratory report in this case resembles those in Melendez-Diaz .

Here, as in Melendez-Diaz , a law-enforcement officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the analysts in Melendez-Diaz , [the] analyst [in Bullcoming ] tested the evidence and prepared a certificate concerning the result of his analysis. Like the Melendez-Diaz certificates, [the Bullcoming ] certificate is “formalized” in a signed document, Davis, 547 U.S. at 837, n. 2 , 126 S.Ct. 2266 (opinion of THOMAS, J.), headed a “report[.]” ... In sum, the formalities attending the “report of blood alcohol analysis” are more than adequate to qualify [the analyst’s] assertions as testimonial.

The absence of notarization does not remove his certification from Confrontation Clause governance. The New Mexico Supreme Court, guided by Melendez-Diaz , correctly recognized that [the analyst’s] report “fell within the core class of testimonial statements”, described in this Court’s leading Confrontation Clause decisions: Melendez-Diaz, 557 U.S. at 330 [308-312], ⁵³⁷ 129 S.Ct. at 2531-2532 ; Davis, 547 U.S. at 830 , 126 S.Ct. 2266 ; Crawford, 541 U.S. at 51-52 , 124 S.Ct. 1354 . Id. at -, 131 S.Ct. at 2717 , 180 L.Ed.2d at 624 (some internal citations omitted). Justice Ginsburg emphasized that, although the Report in Bullcoming was unsworn, as differentiated from those in Melendez-Diaz , it would be untenable for the definition of “testimonial statements” to turn on whether the individual making the statement had done so under oath.

Id. at-, 131 S.Ct. at 2717 , 180 L.Ed.2d at 623 . Most recently, in Williams v. Illinois, 567 U.S.-,-, 132 S.Ct. 2221, 2229 , 183 L.Ed.2d 89,100 (2012), the Court was faced with a DNA profile produced by a private laboratory, Cellmark, located in Germantown, Maryland. The DNA profile had been solicited by the Illinois State Police from a vaginal swab collected from a rape kit. Id.

Analysts at Cellmark determined that the DNA profile belonged to a male; 20 there was no suspect identified at the time. Id. The ⁵³⁸ profile was then compared to the DNA database in Illinois by an Illinois State Police forensic specialist and Williams’s DNA developed as a result of a prior, unrelated, arrest was a match. Id.

The Cellmark DNA profile was later received in evidence during Williams’s bench trial during the testimony of the police specialist and not the Cellmark analyst. Id. at-, 132 S.Ct. at 2227 , 183 L.Ed.2d at 98 . The State posited that the Cellmark profile was not admitted for its truth, rather, that it only served to explain the underlying facts the specialist had relied upon in reaching her expert opinion. Id. at -, 132 S.Ct. at 2227-28 , 183 L.Ed.2d at 98 .

The plurality opinion authored by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Anthony Kennedy and Stephen Breyer, 21 set forth two rationales for concluding that Williams’s right of confrontation was not violated by admission of the Cellmark profile. Justice Alito posited that the profile was not offered for its truth and, therefore, was outside the scope of the Confrontation Clause. Id. at-, 132 S.Ct. at 2228 , 183 L.Ed.2d at 99 . Alternatively, Justice Alito stated that the Cellmark profile was not testimonial, because it was not produced for “the primary purpose of accusing a targeted individual”, unlike that which had occurred in Melendez-Diaz and Bullcoming.

Id. at-, -, 132 S.Ct. at 2228, 2243 , 183 L.Ed.2d at 99, 115 . Justice Clarence Thomas concurred only in the judgment and provided his own opinion. Id. at-, 132 S.Ct. at 2255 , 183 L.Ed.2d at 129 . In his view, introducing the Cellmark profile through the testimony of the police specialist did not ⁵³⁹ encumber Williams’s cross-examination rights, “because Cell-mark’s statements lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause.” Id.

Justice Thomas opined that “Cellmark’s report, in substance, certifies nothing.” Id. at-, 132 S.Ct. at 2260 , 183 L.Ed.2d at 134 . When considering the question of the purpose of the Cellmark profile, Justice Thomas iterated that, when a statement is created under circumstances that indicate it is to be used in a criminal prosecution or investigation, the statement may be testimonial. Id. at-, 132 S.Ct. at 2261 , 183 L.Ed.2d at 135 . The purpose for creating the statement is not enough, however, under Justice Thomas’s rationale, because the statement must also have the requisite “formality and solemnity” to be considered testimonial. 22 Id.

In Derr II, we were called upon to apply the tenets of Williams and did so by “applying] the standard articulated by the Supreme Court in Marks v. United States, 430 U.S. 188, 193 , 97 S.Ct. 990, 993 , 51 L.Ed.2d 260, 266 (1977)”, that being, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on ⁵⁴⁰ the narrowest grounds.” Id. at 114, 73 A.3d at 269 (internal quotation marks omitted). The narrowest grounds, we opined, were provided by Justice Thomas’s concurrence: The plurality opinion expressed that statements are testimonial when they both have “the primary purpose of accusing a targeted individual of engaging in criminal conduct” and are “formalized statements such as affidavits, depositions, prior testimony, or confessions.” 567 U.S. at-, 132 S.Ct. at 2242 , 183 L.Ed.2d at 116 (plurality). Justice Thomas’s concurrence expressed that for statements to be testimonial both “the declarant must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution,” 567 U.S. at -, 132 S.Ct. at 2261 , 183 L.Ed.2d at 135 (Thomas, J., concurring in judgment) (citation omitted), and the statements must “bear[ ] [an] indicia of solemnity.” 567 U.S. at -, 132 S.Ct. at 2259 , 183 L.Ed.2d at 133 (Thomas, J., concurring in judgment) (quotation omitted). Those statements, Justice Thomas explained, include “formalized testimonial materials, such as depositions, affidavits, and prior testimony, or statements resulting from formalized dialogue, such as custodial interrogation.” 567 U.S. at-, 132 S.Ct. at 2260 , 183 L.Ed.2d at 133 (Thomas, J., concurring in judgment) (citations and quotation omitted).

The common point of agreement between the plurality opinion and Justice Thomas’s concurring opinion is that statements must, at least, be formalized, or have “indicia of solemnity” to be testimonial. Therefore, using the Marks approach, we conclude that the narrowest holding of Williams is that a statement, at a minimum, must be formalized to be testimonial. Id. at 114-15, 73 A.3d at 270 . By embracing Justice Thomas’s opinion we emphasized the formality of a statement or its “indicia of solemnity”.

Id. at 115 , 73 A.3d at 270 . In Derr II we had been asked to determine whether three exhibits received in evidence were testimonial. The first exhibit “appeared] to be the notes from the bench work of the serological examiner”, which were compiled during the 1985 ⁵⁴¹ investigation of the underlying rape, and were the result of an examination of physical evidence collected at the scene. Id. at 118 , 73 A.3d at 272 .

We opined that the notes, because they lacked any “signed statements or any other indication that the results or the procedures used to reach those results were affirmed by any analyst”, were not sufficiently formalized to be considered testimonial, (id. at 119, 73 A.3d at 272 ); therefore, the admission of the exhibit without the testimony of the analyst who had created it did not violate Derr’s right of confrontation. With respect to the second exhibit, which was a DNA profile created in 2002 from biological material obtained via a vaginal swab of the victim, we observed that it “display[ed] a series of numbers and lines, and on the bottom of the documents [were] the initials of two parties. No statements, however, appeared] anywhere on the results attesting to their accuracy or that the analysts who prepared them followed any prescribed procedures.” Id. at 119 , 73 A.3d at 272-73 . The initials, we said, certified nothing and, thus, we concluded that the second exhibit was not sufficiently formalized to meet the standard in Williams .

The third exhibit was created when “a match was discovered between Derr’s existing profile in CODIS[ 23 ] and the profile generated in 2002”, which led investigators to create a reference DNA sample from Derr’s buccal swab. Id. at 99, 73 A.3d at 260 . The third exhibit was “almost identical in form to the test results from the 2002 DNA test of biological material” obtained from the victim, except that there were no initials on the bottom of the third exhibit. Id. at 120 , 73 A.3d at 273 .

The report itself, attached hereto as Appendix B, reflected no conclusions authored by the analyst and graphically represented only the makeup of the DNA under analysis. The third set of results, we determined, was not sufficiently formalized, and ⁵⁴² the analyst who had derived the DNA test results was not required to testify. In conclusion, we rejected each of Derr’s challenges based on the Confrontation Clause, having determined that the exhibits were not formalized and, thus, were not testimonial. 24 Since Derr II was decided, many other courts also have struggled to interpret Williams and apply its tenets. E.g., State v. Michaels, 219 N.J. 1 , 95 A.3d 648, 666 , cert, denied, — U.S. -, 135 S.Ct. 761 , 190 L.Ed.2d 635 (2014) (“We find Williams’s force, as precedent, at best unclear.”).

The essence of the confusion, according to our sister courts, is that none of the opinions in Williams articulated what could be described as the “narrowest” ground for the opinion, nor did the