IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID L. BRUCE, 

Petitioner, CASE NO. 2:10-CV-889

JUDGE MICHAEL H. WATSON

v. Magistrate Judge Abel

WARDEN, Lebanon Correctional 

Institution, 

Respondent

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent’s Return

of Writ, Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow, the

Magistrate Judge RECOMMENDS that the petition for a writ of habeas corpus be DISMISSED. 

FACTS and PROCEDURAL HISTORY

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of this

case as follows: 

When Troy Boyes arrived for work at 4640 Bridgeport Street, Lot #

13, Baltimore, Ohio, on January 27, 2005, he discovered a partially

clothed African-American female with multiple stab wounds and

remnants of bindings on her body, deceased on the front porch of the

home that was under construction. Mr. Boyes noticed blood on the

windows in the formal eating room, the floor, the front door, the

stairs and the tile kitchen. The blood, the body, and the trash were not

on the front porch the evening before when Mr. Boyes left that home

which he was helping to build.

Troy Boyes tried calling the president of his company, Phil DiYanni.

When Mr. DiYanni was reached, he immediately called 9-1-1. Mr.

DiYanni drove to the house and saw the bloodstains up and down the

stairwell, around the front door and the body on the front porch.

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The numerous puncture or stab wounds were obvious and the victim

was lifeless according to Fairfield County Deputy Betsy Willey's

observations when she arrived at the scene. Deputy Gerald Seipel

described the victim as a female, partially clothed from the waist up

lying on the porch with her feet over the edge, with obvious stab or

puncture marks in several places. Firefighter/Paramedic Ray Friesner

of the Basil Joint Fire District verified that the female was deceased.

Mr. Friesner observed that the deceased victim on the porch was a

partially clothed black female with some sort of bandanna around her

neck and wrists. The bandanna appeared to have been tied around her

neck, the clothes she had on were bloody, and there were some

bindings on both of her wrists and her right ankle.

The coroner, Dr. Patrick Fardal testified that the victim, identified as

Robin Brown, had at least fifteen (15) sharp instrument wounds.

Some of the wounds were connected meaning they went all the way

through her body. This made it impossible to know the exact number

of times she had been stabbed. On the lateral side of her right thigh,

there was a sharp instrument wound about one and a half inches long.

There was a sharp instrument wound on the inside of her right thigh

that was also one and a half inches long. The doctor concluded that

these two wounds were connected and counted them as one because

it was most likely that the sharp instrument went in one side and

came out the other with a connector of about two and three-quarter

inches. There was another sharp instrument wound approximately

two and a half inches long on the outside of her body that connected

up to a one and one half inch sharp instrument wound on her anterior

right thigh, with the connected path of nearly five and one half

inches. This sharp instrument went through a considerable portion of

her right thigh. Therefore, while there were four injuries on her right

thigh the doctor counted two sharp instrument wounds on the right

thigh, meaning that she was stabbed in the right thigh at least twice.

The victim also had at least five stab wounds on her right hand. On

the back of her right hand, there was a one and a half inch sharp

instrument wound with secondary tearing toward the front of the

body at the top. There was another sharp instrument wound between

her thumb and right finger that was approximately three-eighths of

one inch long, connected to the wound on the back of the hand.

Additionally, a three-eighths of one-inch defect on the knuckle of the

thumb that was also connected to the back of the hand was

discovered. This wound looked like the sharp instrument came in the

backside of her hand, went towards her thumb, and exited in two

places-inside the web between her fingers and the back part of her

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thumb on her knuckle.

Separate wounds identified as two, three, four, and five on the back

of her right hand were caused by a sharp instrument. These wounds

measured three quarters of one inch, three quarters of one inch, one

inch, and one quarter of one inch respectfully. The wounds on the

back of her knuckles could have been one slice that caused all of the

wounds on each of her fingers. Accordingly, the total number of cuts

on her right hand ranged from two to five.

The victim's right breast also had multiple stab wounds. There was a

series of approximately three wounds in the upper outer quadrant of

her right breast towards her axilla that measured one and one quarter

inch, one and one half inch, and one inch. Due to the close proximity

of the separate wounds, the doctor could not determine which of the

three was fatal, but could conclude within a reasonable degree of

medical certainty that one of the three wounds were fatal. One of the

three wounds in the right side of her breast went into her right chest

and caused an injury to her right lung and then extended through her

pericardial sac and caused an injury to the area of the right heart.

Another separate sharp instrument wound in her right breast

measured one and three-quarter inches long and extended upward

towards her axilla, or armpit, which was in the opposite direction of

the other three. The wound that was responsible for penetrating her

heart went through her chest and into the chest wall extending six

inches into her body. Another sharp instrument wound in her right

breast extended anteriorly in toward her midline and was one and

three-quarters inches long and six inches deep injuring the lower lobe

of her right lung, the pulmonic veins, and created a defect in the sac

around her heart. In addition to the fatal wounds, a superficial

abrasion extended from her right nipple that was one and a half

inches by one half inch wide. Accordingly, at least seven sharp

instrument wounds occurred on the victim's right breast.

Between the victim's breasts on her right chest was another sharp

instrument wound measuring two and a half inches by one-sixteenth

of an inch in width and three and a half inches deep that extended

posteriorly, towards her back, but went into the fat of her abdomen.

The victim's back had a sharp instrument wound on the left side

measuring one and three-quarters inches long that extended three

inches into her pleural cavity on the left side and injured her left lung.

The wound entered through her back and injured both the upper and

lower lobes of the left lung. The victim's neck had two abrasions that

could be from the sharp instrument being dragged along the skin, or

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could have been from another source such as clothing. One measured

four and a half inches in length and the other one measured about

three-quarters of an inch in length.

In addition to the injuries caused by the sharp instrument, the victim

had injuries on her face. There was a pattern abrasion on her face

below the left eye that was a three-quarter-by-three-quarter inch

diameter pattern abrasion. An object striking her head or her head

striking an object could have caused the injury. Finally, there were

some superficial abrasions on her left wrist.

The cause of Robin Brown's death was multiple sharp instrument

wounds with injuries to the right heart, right lung, pulmonic veins,

and the left lung.

The bindings around Robin's wrists and ankles as well as her clothes

were sent from the coroner's office to BCI & I through the Sheriff's

Office. The denim from the victim's right wrist was stained with

blood. The t-shirt was so heavily stained with blood that there were

not any isolated stains on the shirt.

Detectives from the Fairfield County Sheriff's Office and the

specialists from BCI & I collected evidence from the scene, 4640

Bridgeport Street, Lot # 13 Baltimore Ohio. Detective Stephanie

Russell located a cigarette butt on the floor of the garage between tire

tracks and the door. Detective Scott Jones removed drywall from the

west side of the wall in the bedroom. This drywall was covered in

what was later determined to be blood. The bloody stain also

contained a fingerprint. A single edged knife blade, butcher style,

stamped stainless steel marked “Made in China” was recovered from

the scene. There was dried blood on the blade and no handle for the

knife. A piece of black plastic that could have been a portion of the

handle was also recovered. A pair of glasses missing the left lens was

located in a small bedroom. The t-shirt Robin Brown was wearing

was observed by officers at the scene and then removed at the time

of the autopsy at the Franklin County Morgue. In addition, photos

were taken showing the victim with the bindings and the blood

around her at the scene. Detectives never found pants, a skirt, a purse,

a wallet or any money.

Following a match by BCI & I of appellant's prints found in the

victim's blood on the drywall and the scene, the appellant made two

taped statements to detectives. Following a waiver of his Miranda

rights, appellant stated that he worked for Buckholz Wall Systems,

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a stucco company. His supervisor is Anthony Smith. When

confronted with the evidence that his fingerprint was in one of the

houses in the victim's blood, appellant explained that he would go in

houses all the time, especially in the winter to warm up. While the

appellant stated that he did not remember the last time he was

working on houses in the Woodside area, he knew it was in January

and said he believed he left town the night of January 21, 2005.

Appellant also stated that the night that he left town, his car broke

down and he was picked up by a courtesy van that should have his

information in the driver's records.

Appellant further stated that his brother lives near Champion Avenue

in Columbus, Ohio. While appellant was not certain, he stated it was

possible that he and his brother picked up Robin in appellant's car.

However, after seeing her picture he stated that he did not know the

victim. Appellant did not have any explanation as to how his

fingerprint could have ended up in the victim's blood inside of the

house.

Testimony was presented at trial that employees who worked outside

were not permitted inside of the homes. The crew leader, Steven

Smith, testified that in order to enter a house, a crewmember would

need to ask his permission and appellant never asked his permission

to enter the house. Similarly, Christopher Curtis testified that he was

on the same crew as appellant and was never in the house, but was in

the garage. The Office Manager for Buckholz Wall Systems testified

that appellant was one of their employees from April 21, 2004

through January 21, 2005, and that appellant would not be allowed in

the house as the company only works on the outside of the houses,

not the inside.

Records from the courtesy van company from West Virginia were

inconsistent with the appellant's statement. The records established

that appellant did not leave town on January 21, 2005 as he stated to

the police. The records show that he left town the night Robin Brown

was killed. The courtesy van driver, John L. Aylor, testified that he

received a call on January 27, 2005 at 7:23 a.m. regarding a broken

Explorer with the license plate DBY 5680. Mr. Aylor took the driver

to the Go-Mart in Elkins, West Virginia. Appellant's co-worker

Charles Okpara identified appellant's car as the same one

photographed by law enforcement.

Appellant's car was towed in West Virginia on February 19, 2005,

when a private citizen called to report the vehicle on the roadway.

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The vehicle was a 1997 Ford Explorer with a license plate number of

DBY 5680. The back window was already broken out when Jeffrey

Fletcher of the West Virginia State Police first saw the vehicle. The

State and Defense stipulated that if called to testify, Jimmy Tincher

would testify that he is the owner of Tincher's Towing in Elkins,

West Virginia and that he has a wooden fence surrounding the lot. He

towed a white Ford Explorer license plate DBY 5680 to his lot and

noticed that the back window had been broken out. He went through

the car in order to locate some papers with a phone number and

address in an attempt to reach the owner. On March 7, 2005, he

towed the vehicle to the Sheriff's lot and saw law enforcement put

crime scene tape around the vehicle. Investigators came some time

between February 19, 2005, and March 7, 2005, to look at the

vehicle, but they did not put in, or take out, anything. To the best of

his knowledge, no one else entered or tampered with the vehicle.

Detective Mark Green of the Columbus Police Department processed

the white Ford Explorer, DBY 5680, on March 18, 2005. He found

a piece of denim on the driver's side rear floorboard with

discoloration that appeared to be blood. The vehicle also contained

work gloves, two knives, and tape.

On January 26, 2005, Angelo Brown, the victim's husband, drove

Robin Brown to Champion where Sherwood Brown lives. Robin was

wearing a black coat, jeans and tennis shoes when he dropped her off.

Jacqueline Meadows saw Robin Brown at 485 North Champion

Avenue the night Robin was murdered. Jacqueline had often seen

Robin there visiting her nieces and Robin appeared to be visiting her

nieces that night. Jacqueline last saw Robin between 9:00 and 10:30

p.m. that night when Robin was leaving in a white SUV that looked

like appellant's vehicle. When Jacqueline last saw Robin, Robin did

not appear to be under the influence of drugs or alcohol and was

wearing a jacket, a dark-colored shirt, and jeans.

Robin's husband testified that she was wearing a black coat, jeans,

and tennis shoes with a shirt. The jacket, jeans, and tennis shoes were

never recovered.

 The evidence that had been stained with blood was tested by BCI &

I to confirm that it was actually blood and to determine the source of

the blood. Abby Schwaderer of BCI & I did the presumptive testing

and was stipulated as an expert in presumptive testing by the State

and Defense. Ms. Schwaderer testified that BCI & I is accredited by

the American Society of Crime Laboratory Directors/Laboratory

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Accreditation Board, ASCLD/LAB for forensic DNA and DNA

laboratories. The accreditation includes both training and audits to

make sure the lab is upholding all of the requirements and standards

to properly determine the source of DNA if present on the items

tested. Her report listed all of the items tested with presumptive

blood, including but not limited to the knife blade, the door handle,

the sock, shirt, and drywall.

Amoreena Clarkson, Criminalist II for the Columbus Police Crime

Laboratory, routinely reviews evidence submitted to the lab for

biological fluids and performs DNA analysis. She testified that she

is not an expert in statistics; however, she is able to use the software

program provided by the manufacturer to type the samples. The

procedures used in the lab are the standard operating procedures

accepted in the scientific community. Those procedures include using

a database generated by the FBI that is accepted across the

community and used in the normal protocol for the lab. Ms. Clarkson

was able to match the DNA types from the stains on the blue jean

material with the blood standard from the victim Robin Brown.

Bobbie Jo Kennedy, forensic scientist for BCI & I, testified that she

had been performing DNA analysis for approximately five years. She

testified that she had specialized training in DNA at BCI & I and

through other workshops. Ms. Kennedy testified to the accreditation

standards met at BCI & I regarding how evidence is handled, security

of the building, techniques used and documentation all of which are

subject to audit. The trial court found that she was an expert witness

under Evid.R. 702 and relied upon the Montgomery Court of Appeals

case State v. Powell (Dec. 15, 2000), 2nd Dist. No. 18095, in

overruling the defense objection regarding testifying about statistical

conclusions that utilized the FBI database.

The first report Ms. Kennedy issued included items she tested from

the vaginal swabs, fingernail scrapings, a knife blade, drywall, and

standards from the victim and appellant. The victim's blood was on

the knife blade and was the only profile on the blade. Appellant was

excluded as the source of the DNA from the vaginal swabs, the

fingernail scrapings and the knife blade. However, the DNA profile

from the drywall was a mixture consistent with contributions from

the victim Robin Brown and appellant. Appellant could not be

excluded as the minor source of the DNA from the drywall and using

the national database from the FBI, the proportion of the population

that cannot be excluded as possible contributors to the mixed DNA

profile from the drywall was one in 10,990 individuals. Ms. Kennedy

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also tested the cigarette butt, found in the garage. She testified that

there was a mixture of DNA profiles on the cigarette butt, with

appellant as consistent for the major contributor and the victim as

consistent with the minor contributor.

Robin Roggenbeck, a latent print examiner and forensic scientist with

BCI & I, analyzed the piece of that drywall that had been covered

with blood. Ms. Roggenbeck took a digital image of the surface as it

was and then used an enhydrant to further enhance the image and

preserve the print. The digital image was stored in the computer. Ms.

Roggenbeck was able to identify one sufficient latent palm print area,

the interdigital area of the left palm. The latent print was then

compared by Ms. Roggenbeck to known prints from appellant and

Robin Brown. There were more than ten points that she was able to

identify in the print as well as the proper ridge flow and the clarity

and quantity of the point resulting in a positive identification.

Furthermore, Ms. Roggenbeck was able to determine that appellant's

hand was in the victim's blood to make the print, meaning the print

was not on the wall prior to the blood splatter. The defense expert

Michael Sinke corroborated Ms. Roggenbeck's conclusion.

On March 11, 2005, appellant was indicted by the Grand Jury of

Fairfield County, Ohio, for one count of Aggravated Murder, in

violation of R.C.2903.01(B) with two Death Penalty Specifications,

in violation of R.C.2929.04(A)(3) and R.C. 2929.04(A)(7); one count

of Aggravated Murder, in violation of R.C. 2903.01(A), with two

Death Penalty Specifications, in violation of R .C. 2929.04(A)(3) and

R.C. 2929.04(A)(7); one count of Murder, in violation of R.C.

2903.02(B); two counts of Kidnapping, in violation of R.C.

2905.01(B) and R.C.2905.01(A)(4); two counts of Aggravated

Robbery, in violation of R.C. 2911.01(A)(1) and R.C. 2911.01(A)(3);

one count of Aggravated Burglary, in violation of R.C.

2911.11(A)(2); and one count of Rape, in violation of

R.C.2907.02(A)(2).

A verdict of guilty was returned by the jury as to Count One,

Aggravated Murder, in violation of R.C. 2903.01(B); Count Two,

Aggravated Murder, in violation of R.C. 2903.01(A); Count Three,

Murder, in violation of R.C. 2903.02(B); Count Four, Kidnapping, in

violation of R.C. 2905.01(A)(4); Count Six, Aggravated Robbery, in

violation of R.C. 2911.01(A)(1); and Count Seven, Aggravated

Robbery, in violation of R.C. 2911.01(A)(3). Further, the jury found

the appellant not guilty as to Counts Five, Kidnapping, and Count

Eight, Aggravated Burglary, and the two Specifications to Counts

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One and Two.

On July 5, 2006, the appellant's sentencing hearing was held. The

Court found that Count One, Aggravated Murder, Count Two,

Aggravated Murder, and Count Three, Murder merged for purposes

of sentencing. The State of Ohio elected to have the appellant

sentenced on Count Two, Aggravated Murder, in violation of Ohio

Revised Code R.C. 2903.01(A). Pursuant to Ohio Revised Code R.C.

2929.03(C)(1)(a) the Court sentences appellant to life imprisonment

with parole eligibility after 20 years. With respect to Count Four

Kidnapping, in violation of R.C. 2905.01(B), the Court sentenced

appellant to 10 years in the Correctional Reception Center. The trial

court merged Counts Six and Seven, Aggravated Robbery, in

violation of R.C. 2911.01(A)(3) and R.C. 2911.01(A)(1). The Court

sentenced appellant to 10 years in the Correctional Reception Center

on the merged counts.

The Court ordered that the sentences imposed on Count Four and

merged Counts Six and Seven be served concurrently to each other,

but consecutively to the sentence imposed on Count Two. The Court

further ordered that appellant pay the costs of prosecution. Thus,

appellant's aggregate sentence is a life sentence with parole eligibility

after 20 years to be served consecutively to a 10-year prison sentence.

State v Bruce, No. 2006-CA-45, 2008 WL 4801648, at *1-7 (Ohio App. 5th Dist. Oct 31, 2008). 

Petitioner filed a timely appeal, raising the following three assignments of error:

I. CRAWFORD BARS TESTIMONIAL STATEMENTS OF A NONTESTIFYING WITNESS, UNLESS THE WITNESS IS

UNAVAILABLE AND THE ACCUSED HAD AN OPPORTUNITY

FOR CROSS-EXAMINATION. ALTHOUGH FBI PERSONNEL

GENERATED THE STATISTICAL DNA EVIDENCE, NO FBI

STATISTICAL EXPERT TESTIFIED; RATHER, THE STATE

PRESENTED THE FBI'S EVIDENCE THROUGH THE

BIOLOGICAL DNA ANALYSTS, WHO DID NOT PERSONALLY

KNOW HOW THE FBI GENERATED THE EVIDENCE.

OVERRULING MR. BRUCE'S CRAWFORD OBJECTION

VIOLATED HIS RIGHTS UNDER THE OHIO AND UNITED

STATES CONSTITUTIONS TO CONFRONT THIS POWERFUL

EVIDENCE.

II. BY ALLOWING THE STATE TO PRESENT THE FBI'S

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STATISTICAL DNA EVIDENCE THROUGH ITS BIOLOGICAL

EXPERTS, WHERE THE ABSENCE OF A QUALIFIED EXPERT

DEPRIVED THE DEFENSE OF THE OPPORTUNITY TO TEST

THE RELIABILITY OF THE SCIENTIFIC BASIS FOR THE

TESTIMONY THROUGH CROSS-EXAMINATION, THE TRIAL

COURT VIOLATED MR. BRUCE'S RIGHTS UNDER EVID.R.

702 AND UNDER THE CONFRONTATION AND DUE PROCESS

CLAUSES OF THE OHIO AND UNITED STATES

CONSTITUTIONS.

III. THE TRIAL COURT ERRED BY SENTENCING MR. BRUCE

TO MAXIMUM SENTENCES FOR KIDNAPPING AND

AGGRAVATED ROBBERY COUNTS AND ORDERING THEM

TO BE SERVED CONSECUTIVELY TO THE AGGRAVATED

MURDER COUNT, BECAUSE SENTENCING UNDER STATE V.

FOSTER, 109 Ohio St.3d 1, 2006-OHIO-856, 845 N.E.2d 470,

RETROACTIVELY SUBJECTS A DEFENDANT TO A

“STATUTORY MAXIMUM SENTENCE” THAT GREATLY

EXCEEDS THE MAXIMUM SENTENCE THE DEFENDANT

WAS SUBJECT TO WHEN THE ALLEGED OFFENSES WERE

COMMITTED. THIS VIOLATES THE DUE PROCESS CLAUSES

OF THE OHIO AND UNITED STATES CONSTITUTIONS.

State v. Bruce, 2008 WL 4801648, at *7. On October 31, 2008, the appellate court affirmed the trial

court’s judgment. Id. On March 25, 2009, the Ohio Supreme Court dismissed Petitioner’s appeal. 

State v. Bruce, 121 Ohio St.3d 1427 (2009). On October 5, 2009, the United States Supreme Court

denied Petitioner’s petition for a writ of certiorari. Bruce v. Ohio, 130 S.Ct. 188 (2009). 

On October 1, 2010, Petitioner filed the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. He raises the following sole ground for relief: 

The admission of statistical DNA evidence generated by the FBI’s

popstat program but presented by biological DNA analysts, who were

not qualified as statistical exerts and did not personally know how the

FBI generated the statistical evidence, violated Petitioner’s rights

under the Confrontation Clause of the United States Constitution. 

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It is the position of the Respondent that Petitioner’s claim is without merit. 

MERITS

As his sole ground for federal habeas corpus relief, Petitioner asserts that his convictions

violate the Confrontation Clause, because Amoreena Clarkson and Bobbie Joe Kennedy, DNA

analysts, testified regarding the statistical probability that it was Petitioner’s DNA on bloody drywall

and cigarette butt found near the scene of the crime as indicated by “Popstat”, the FBI’s DNA

software database program, which indicates the expected frequency of occurrence of DNA profiles

obtained by police. Petitioner complains that neither Clarkson nor Kennedy had expertise in

probability or statistics, knowledge of how the FBI’s program arrived at its statistical conclusions,

the reliability of its statistics, or the nature and characteristics of the FBI database. 

The state appellate court rejected this claim as follows:

 [A]ppellant maintains that the statistical DNA evidence the State

presented in an effort to identify him as a accomplice in the killing is

“testimonial” under Crawford v. Washington (2004), 541 U.S. 36,

124 S.Ct. 1354, 158 L.Ed.2d 177. We disagree.

In State v. PierceFN1 (1992), 64 Ohio St.3d 490, 597 N.E.2d 107, the

Ohio Supreme Court held that “DNA evidence may be relevant

evidence which will assist the trier of fact in determining a fact in

issue, and may be admissible.” In Pierce, the Court recognized that

“the theory and procedures used in DNA typing are generally

accepted within the scientific community.” 64 Ohio St.3d at 497, 597

N.E.2d 107. Further, the Court held that “questions regarding the

reliability of DNA evidence in a given case go to the weight of the

evidence rather than its admissibility. No pretrial evidentiary hearing

is necessary to determine the reliability of the DNA evidence. The

trier of fact * * * can determine whether DNA evidence is reliable.”

Pierce, 64 Ohio St.3d at 501, 597 N.E.2d 107. Accord State v.

Nicholas (1993), 66 Ohio St.3d 431, 437, 613 N.E.2d 225 (“DNA

results constitute reliable evidence”). See also, State v. Adams, 103

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Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29 at ¶ 80. (DNA

evidence meets Evid. R. 702's reliability requirement).

FN1. Superseded by Rule on other grounds as stated in State v.

Nemeth, 82 Ohio St.3d 202, 1998 Ohio 376, 694 N.E.2d 1332.

An appellate court should apply an abuse of discretion standard in

reviewing a court's decision to admit or exclude expert testimony.

Gen. Elec. Co. v. Joiner (1997), 522 U.S. 136, 144-146, 118 S.Ct.

512, 139 L.Ed.2d 508; State v. Williams (1983), 4 Ohio St.3d 53, 58,

446 N.E.2d 444. “To the extent that doing so is necessary to avoid

making an unreasonable, arbitrary, or unconscionable decision, a trial

court is obliged to apprise itself of the details of proffered evidence.”

Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850

N.E.2d 683 at ¶ 20.

In the case at bar, appellant argues that the FBI database used to

calculate the statistical conclusion based upon the input gathered

from BCI & I is testimonial. A brief synopsis of the process to test

appellant's DNA and the DNA recovered from the victim and/or

crime scene is necessary.

As one court explained the biological analysis, “involves determining

the specific genetic variations, or ‘alleles,’ in the DNA samples at

specific sites (‘loci’) along the DNA thread. The particular variations

examined in this case are called short tandem repeats, or ‘STRs.’

They were examined at thirteen loci which have been adopted as a

national standard for use in the Combined DNA Identification System

(CODIS) established by Congress in 1994. The PCR-based analysis

using the thirteen STR loci has been explained by the Supreme Court

of New Hampshire as follows:

“ ‘At each locus, an individual's genetic code contains a combination

of chemical markers organized into a pattern. These chemical

patterns repeat themselves and these repeats can be chemically cut

apart from one another. At any particular chromosomal locus, an

individual will have a characteristic inherited from each of his or her

parents, known as an allele. Further, at any given locus, a person will

have DNA with a specific number of repeats of these alleles from

each parent. Thus, for example, a person's PCR-based STR DNA

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profile for a particular DNA locus could contain a ten-repeat allele

from his or her mother and a twelve-repeat allele from his or her

father. STR testing involves the examination of short repeats and

distinguishes between individuals by comparing the number of

repeats at certain loci.’” Roberts v. United States (D.C.Cir.2007), 916

A.2d 922, 926-927). (Quoting State v. Whittey (2003), 149 N.H. 463,

821 A.2d 1086, 1093.

“The relevance of the DNA analysis, in criminal law generally, and

in the context of this case, is to establish the identity of the source of

a DNA sample discovered at a crime scene. If the DNA sample from

the crime scene matches the DNA of an accused, it is at least

evidence that the DNA discovered at the crime scene is that of the

accused. If the DNA sample matches the DNA of the accused and no

one else, then it, of course, conclusively establishes that the accused

is the source of the DNA found at the scene of the crime. This

distinction is expressed in terms of statistical probability of the match

occurring randomly in the population. A DNA expert might testify

that a given DNA match will occur only once in a population of

10,000,000. Obviously, such a probability makes it highly likely that

the DNA samples came from the same source. If the DNA expert's

testimony, however, is that a given match might occur coincidentally

once in every one hundred samples, then it is far weaker in

establishing the sources of the DNA samples as being one and the

same individual.

“Thus, in terms of the inferential conclusion to be drawn from DNA

evidence in a criminal trial – the accused as source of the DNA

sample found at the crime scene – DNA analysis generally can

provide only statistical probability; e.g., there is one chance in four

hundred or one chance in four million that the DNA sample came

from someone else. Conversely, a DNA mismatch constitutes

conclusive and certain scientific proof that the DNA samples come

from different sources. For proving identity, however, as opposed to

disproving identity, DNA can never provide absolute, conclusive

proof, even though extremely low probabilities of a coincidental

match provide a basis for very strong inferences of identity.”

Commonwealth v. Crews (1994), 536 Pa. 508, 519, 640 A.2d 395,

400.

In the case at bar, appellant is not challenging the “matching” portion

of the DNA analysis; appellant is only challenging the statistical

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portion of the DNA test evidence.

In this case, the experts relied upon a database compiled by the

Federal Bureau of Investigation through its “Popstat” computer

software program. Appellant claims that he was denied any

opportunity to cross-examine the FBI's random match probability

estimates because the witnesses presented at appellant's trial did not

prepare the database and had no personal knowledge of the methods

and procedures the FBI used to compute the statistical estimates or

the database upon which the calculations were based. [Appellant's

Brief at 14].

In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177, the United States Supreme Court held that testimonial

statements of a witness who does not appear at trial may not be

admitted or used against a criminal defendant unless the declarant is

unavailable to testify, and the defendant has had a prior opportunity

for cross-examination. Crawford thus involved the admissibility

under the Confrontation Clause of recorded testimonial statements of

a person who did not testify at the trial. The holding in Crawford was

that such statements, regardless of their reliability, are not admissible

unless the defendant was able to cross-examine their maker.

The Ohio Supreme Court recently addressed Crawford in examining

whether the admission of DNA reports without the testimony of the

analyst who prepared the report violated the Confrontation Clause.

State v. Crager, 116 Ohio St.3d 369, 879 N.E.2d 745, 2007-Ohio6840. The Court found the key inquiry under Crawford was whether

a particular statement was testimonial or non-testimonial. Id. at ¶ 41.

It then determined that the reports of DNA analysis prepared by an

analyst at BCI were business records that fell under the hearsay

exception of Evid.R. 803(6) and therefore, were not testimonial under

Crawford.

In Crawford the Supreme Court stated that business records, which

are analogous to public records are “by their nature * * *not

testimonial” and not subject to the requirements of the Confrontation

Clause. Id. at 56; “[t]o its credit, the Court's analysis of ‘testimony’

excludes at least some hearsay exceptions, such as business records

and official records. See ante, at 1367. To hold otherwise would

require numerous additional witnesses without any apparent gain in

the truth-seeking process.” Id. at 76, 124 S.Ct. at 1378. (Rehnquist,

C.J., concurring).

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DNA samples have been held to be non-testimonial evidence with

respect to the Fifth Amendment privilege against self-incrimination.

A DNA sample obtained from a state prisoner, pursuant to Ohio

statute requiring the collection of DNA specimens from convicted

felons, was physical, rather than testimonial evidence, and thus did

not implicate the prisoner's Fifth Amendment privilege against selfincrimination. Wilson v. Collins (C.A.6, 2008), 517 F.3d 421, 431.

The Court reasoned that a DNA sample was analogous to a

photograph or fingerprint identifying an individual. Id. (Citing United

States v. Zimmerman, 514 F.3d 851, 853 (9th Cir.2007)(citing

Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 16

L.Ed.2d 908 (1966) (holding that “blood test evidence, although an

incriminating product of compulsion, [is] neither [ ] testimony nor

evidence relating to some communicative act or writing” and is

therefore not protected by the Fifth Amendment)).

The Court's decision in Crawford neither overruled nor called into

question its two earlier decisions that addressed and resolved a

similar issue: Delaware v. Fensterer (1985), 474 U.S. 15, 106 S.Ct.

292, 88 L.Ed.2d 15 and United States v. Owens (1988), 484 U.S. 554,

108 S.Ct. 838, 98 L.Ed.2d 951.

Owens involved an adult victim of a severe beating, who suffered

memory loss stemming from his head injuries and testified at trial.

While hospitalized, he had identified Owens as his assailant, which

identification was admitted into evidence. During the victim's crossexamination, he was unable to recall details of the attack and the

identification. Id. at 556, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d

951. The Ninth Circuit held that, under the circumstances, the

introduction of the victim's testimony violated the Confrontation

Clause. The Supreme Court reversed, ruling, “the Confrontation

Clause guarantees only ‘an opportunity for effective crossexamination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.’” Id. at 559, 484

U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (quoting Kentucky v.

Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)

and Delaware v. Fensterer, 474 U.S. 15, 19-20, 106 S.Ct. 292, 88

L.Ed.2d 15 (1985)) (emphasis in original). In Fensterer, the Court

held that the Confrontation Clause was not violated where an expert

witness who testified as to his opinion could not recollect the basis

upon which he had formed that opinion. In Fensterer, the Court

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explained that:

“The Confrontation Clause includes no guarantee that every witness

called by the prosecution will refrain from giving testimony that is

marred by forgetfulness, confusion, or evasion. To the contrary, the

Confrontation Clause is generally satisfied when the defense is given

a full and fair opportunity to probe and expose these infirmities

through cross-examination, thereby calling to the attention of the fact

finder the reasons for giving scant weight to the witness' testimony.”

474 U.S. at 21-22, 106 S.Ct. 292, 88 L.Ed.2d 15.

It is true that in Owens the witness at least recalled having identified

the defendant. 484 U.S. at 556, 108 S.Ct. at 840. However, the Court

did not restrict its reasoning to such situations. Instead, the Court

“agree[d] with the answer suggested” in “Justice Harlan's scholarly

concurrence” in California v. Green (1970), 399 U.S. 149, 188, 90

S.Ct. 1930, 1950, 26 L.Ed.2d 489 that “a witness' inability to ‘recall

either the underlying events that are the subject of an extra-judicial

statement or previous testimony or recollect the circumstances under

which the statement was given, does not have Sixth Amendment

consequence.’” 484 U.S. at 558, 108 S.Ct. at 841. The accused has

been “confronted with the witnesses against him,” as the Sixth

Amendment demands, so long as the prosecution produces the

witnesses and the witnesses answer defense questions. “[S]uccessful

cross-examination is not the constitutional guarantee.” 484 U.S. at

560, 108 S.Ct. at 843. When a witness has forgotten the basis for and

the giving of testimony under oath in an earlier proceeding and that

testimony is then introduced into evidence, defense questioning,

though impaired, is not futile for the reasons given in Owens. It is

still possible to bring out on cross-examination the “witness' bias, his

lack of care and attentiveness ... and even (what is often a prime

objective of cross-examination) the very fact that he has a bad

memory.” Id. at 559, 108 S.Ct. at 842 (citation omitted). United

States v. Milton (D.C.Cir., 1993), 8 F.3d 39, 47.

The experts in the case at bar did not perform the statistical

calculation; rather the computer perform this task. Appellant can, and

did, attack the witnesses' lack of knowledge not unlike the situation

presented in Fensterer, supra. Appellant did not proffer or present

anything of evidentiary quality to challenge the reliability of the FBI

database or the method of arriving at the statistical conclusion. See,

e.g. State v. Isley (1997), 262 Kan. 281, 936 P.2d 275; Watts v. State

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(Miss.1999), 733 So.2d 214 at ¶ 28-31.

In State v. Adams, the Ohio Supreme Court observed:

“To support his claims, Adams cites a variety of studies suggesting

limitations on DNA evidence. For example, Adams argues that the

court should have excluded DNA evidence because of controversy

over (1) ‘the statistical estimates being offered for Polymerase Chain

Reaction (PCR) tests'; (2) ‘the reliability of the methods used * * *

for collecting, handling, processing, and testing crime scene samples';

and (3) ‘coincidental match probabilities and false error rates.’

“However, the issues that Adams now raises ‘go to the weight of the

evidence rather than its admissibility.’ Pierce, 64 Ohio St.3d 490, 597

N.E.2d 107, paragraph two of the syllabus ...” 103 Ohio St.3d 508,

2004-Ohio-5845, 817 N.E.2d 29 at ¶ 81-82.

Our review of the record reveals that Ms. Kennedy was sufficiently

familiar with the underlying formula used by the computer program

to generate statistical conclusions. (24T. at 5048-5049; 5096-5097).

Appellant's attorney was acutely aware of the mathematics used by

the computer program. (24T. at 5161-5162; 5163). The experts

testified that they used the FBI database as part of their standard

operating procedure. BCI & I is accredited by the American Society

of Crime Laboratory Directors/Laboratory Accreditation Board,

ASCLD/LAB for forensic DNA and DNA laboratories. (20T. at

4321). The accreditation includes both training and audits to make

sure the lab is upholding all of the requirements and standards to

properly determine whose DNA is present on the items tested. ( Id.).

Ms. Clarkson testified that she has a master's degree in forensic DNA

and serology. She further has attended numerous workshops, training

courses and a DNA statistic workshop. (21T. at 4494-4495). She

further has passed the FBI required two proficiency tests per year.

(21T. at 4496). Ms. Clarkson has testified more than twenty (20)

times. In addition, she has been qualified as an expert on DNA

analysis on previous occasions. ( Id . at 4497, 817 N.E.2d 29).

Ms. Kennedy testified that she began doing DNA analysis in graduate

school. (24T. at 5034). She has received specialized training and

attended specialized training programs in statistics. (24T. at 5035).

She has been qualified as an expert and has testified on five previous

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occasions. ( Id. at 5038, 817 N.E.2d 29).

We find Ms. Clarkson and Ms. Kennedy to be properly qualified.

See, Crager, 116 Ohio St.3d 369, 2007-Ohio-6840, 879 N.E.2d 745

at ¶ 12.

We further note that there was no question in the Crager case that the

DNA expert was able to testify to the statistical conclusions

generated in his report. Crager at ¶ 23. The DNA expert in the

Crager case testified that the frequency of occurrence of appellant's

DNA profile was 1 in 1.028 quintillion people. Id. There was no

question from the DNA expert concerning the database that was used

to generate that number. Id.

Appellant argues that the Ohio Supreme Court incorrectly decided

Crager. However, this Court cannot declare a decision by a superior

court to be unconstitutional. Article IV of the Ohio Constitution

designates a system of “superior” and “inferior” courts, each

possessing a distinct function. The Constitution does not grant to a

court of appeals jurisdiction to reverse or vacate a decision made by

a superior court. See, State, ex rel. Potain v. Mathews (1979), 59

Ohio St.3d 29, 32, 391 N.E.2d 343, 345; OH. Const. art. IV, sec. 5;

R.C. 2501.02. An inferior court has no jurisdictional basis to review

the actions and decisions of superior courts.

We find the statistical DNA evidence the State presented in an effort

to identify appellant as a accomplice in the killing is not

“testimonial” under Crawford v. Washington (2004), 541 U.S. 36,

124 S.Ct. 1354, 158 L.Ed.2d 177.

Accordingly, appellant's first assignment of error is denied.

State v. Bruce, 2008 WL 4801648, at *8-13. 

The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 

2254(e)(1) provides:

In a proceeding instituted by an application for a writ of habeas

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corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made by a State court shall

be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.

Further, a federal habeas court may not grant relief unless the state court's decision was contrary to

or an unreasonable application of clearly established federal law, or based on an unreasonable

determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

“The focus . . . is on whether the state court's application of clearly established federal law is

objectively unreasonable . . . an unreasonable application is different from an incorrect one.” Bell

v. Cone, 535 U.S. at 694. To obtain habeas corpus relief, Petitioner must show the state court’s

decision was “so lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, – S.Ct. –,

2011 WL 5299458, at *1 (Nov. 7, 2011)(quoting Harrington v. Richter, 562 U.S. ––––, ––––, 131

S.Ct. 770, 786–87 (2011). This bar is “difficult to meet” because “habeas corpus is a ‘guard against

extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error

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correction through appeal.” Harrington v.Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia,

443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). In short, “[a] state court's

determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court's decision.” Id. (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004). 

 The Sixth Amendment to the United States Constitution guarantees criminal defendants the

right to physically confront and cross examine adverse witnesses at all stages of the trial. Illinois

v. Allen, 397 U.S. 337, 388 (1970). In Crawford v. Washington, 541 U.S. 36 (2004), the United

States Supreme Court abrogated its holding in Ohio v. Roberts, 448 U.S. 56 (1980), and re-defined

the test for determining whether admission of hearsay statements violates the Confrontation Clause.

The Supreme Court in Crawford held that testimonial statements of a witness who does not appear

at trial are inadmissible unless the witness was unavailable to testify and the defense had a prior

opportunity to cross examine the witness. Under Crawford, “[w]here testimonial evidence is at issue

... the Sixth Amendment demands what the common law required: unavailability and a prior

opportunity for cross examination.” Id. at 1366. The Supreme Court, however, left untouched

application of Roberts to cases involving nontestimonial hearsay: 

[“Where nontestimonial hearsay is at issue, it is wholly consistent

with the Framers' design to afford the States flexibility in their

development of hearsay law-as does Roberts, and as would an

approach that exempted all such statements from Confrontation

Clause scrutiny altogether.” Crawford, 541 U.S. at 68, 124 S.Ct.

1354, 158 L.Ed.2d 177. As the courts applying Crawford have observed,

[t]he lynchpin of the Crawford decision thus is its

distinction between testimonial and nontestimonial

hearsay; simply put, the rule announced in Crawford

applies only to the former category of statements....

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[U]nless a particular hearsay statement qualifies as

“testimonial,” Crawford is inapplicable and Roberts

still controls.

Coy v. Renico, 414 F.Supp.2d 744, 773 (E.D. Mich.2006) (quoting United States v. Hendricks, 395

F.3d 173, 179 (3d Cir. 2005)); Horton v. Allen, 370 F.3d 75, 83-84 (1st Cir. 2004). The Supreme

Court declined to define a comprehensive definition of the term “testimonial,” but indicated, at a

minimum, the term includes “prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations. These are the modern practices with closest kinship to the

abuses at which the Confrontation Clause was directed.” Crawford, 541 U.S. at 68. A casual remark

to an acquaintance, business records, and statements made in furtherance of a conspiracy do not

constitute testimonial statements within the protection of the Sixth Amendment. Id. at 51-55. In

the Sixth Circuit, the test for determining whether a statement is deemed testimonial within the

meaning of Crawford is: 

. . . whether the declarant intends to bear testimony against the

accused. That intent, in turn, may be determined by querying whether

a reasonable person in the declarant's position would anticipate his

statement being used against the accused in investigating and

prosecuting the crime.

United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).

Further, “admission of a testimonial statement in and of itself is not enough to trigger a

violation of the Confrontation Clause. . . . [T]he statement must be used as hearsay-in other words,

it must be offered for the truth of the matter asserted.” United States v. Pugh, 405 F.3d 390, 399 (6th

Cir. 2005).Moreover, while the Sixth Amendment guarantees a criminal defendant the right to crossexamine witnesses against him, this right is not unlimited. “Trial judges retain wide latitude. . . to

impose reasonable limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive

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or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The

Confrontation Clause thus guarantees the opportunity for effective cross-examination – not crossexamination in whatever way or to whatever extent the defendant may desire. Id. (quoting Delaware

v Fensterer, 474 U.S. 15, 20 (1985); see also Norris v. Schotten, 146 F3d 314, 330 (6th Cir.

1998)(no Confrontation Clause violation where relevance of questions prohibited on crossexamination is unclear and risk of prejudice real)(citations omitted). 

[A]n accused in a criminal case does not have an unfettered right to

offer evidence that is incompetent, privileged, or otherwise

inadmissible under the standard rules of evidence. Montana v.

Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996)(

quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98

L.Ed.2d 798 (1988)).

Dell v. Straub, 194 F.Supp.2d 629, 644 (E.D. Mich. 2002). Finally, a violation of the Confrontation

Clause is subject to harmless error review. United States v. Pugh, 405 F.3d at 400(citing Jordan

v. Hurley, 397 F.3d 360, 363 (6th Cir. 2005)). 

In support of his claim that testimony from DNA experts regarding the statistical probability

that it was Petitioner’s DNA found on evidence in this case, Petitioner cites Melendez-Diaz, – U.S.

–, 129 S.Ct. 2527 (2009), which held that admission of affidavits indicating the results of forensic

analysis establishing that material seized by police and connected to the defendant constituted

cocaine, without testimony of the person who obtained those results, constituted testimonial

evidence within the meaning of Crawford, violating the defendant’s right to cross-examine witnesses

under the Sixth Amendment. In so holding, the Supreme Court stated:

[T]he Clause's ultimate goal is to ensure reliability of evidence, but

it is a procedural rather than a substantive guarantee. It commands,

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not that evidence be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of cross-examination. .

. . Dispensing with confrontation because testimony is obviously

reliable is akin to dispensing with jury trial because a defendant is

obviously guilty. This is not what the Sixth Amendment prescribes.” 

541 U.S., at 61–62, 124 S.Ct. 1354.

Respondent and the dissent may be right that there are other

ways—and in some cases better ways—to challenge or verify the

results of a forensic test.FN5 But the Constitution guarantees one way:

confrontation. We do not have license to suspend the Confrontation

Clause when a preferable trial strategy is available.

FN5. Though surely not always. Some forensic analyses, such as

autopsies and breathalyzer tests, cannot be repeated, and the

specimens used for other analyses have often been lost or degraded.

Id. at 2536. In this same respect, Petitioner argues he was denied the right to challenge the

reliability of the Popstat statistical evidence where such evidence was admitted though forensic

scientists with neither expertise in statistics nor personal knowledge as to how the probabilities

incriminating Petitioner were obtained. See Traverse, PageID #499-500. 

Petitioner also refers to Bullcoming v. New Mexico, – U.S. –, 131 S.Ct. 2705 (2011), in

support of this claim. In Bullcoming, the United States Supreme Court similarly held that a blood

alcohol breath test report indicating the defendant’s blood alcohol content in a prosecution for

driving while under the influence of alcohol or drugs constituted a testimonial statement within the

Sixth Amendment, and the defendant had a right to cross-examine the analyst who conducted the

breath test, absent unavailability of the witness and a prior opportunity for cross-examination. In

Bullcoming, the prosecution failed to present the witness who had conducted the blood-alcohol test,

instead introducing the evidence through another analyst who had no involvement in the specific test

but qualified as an expert in the blood alcohol testing machine. Id. at 2713. In overturning

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Bullcoming’s conviction, the Supreme Court stated: 

[T]he comparative reliability of an analyst's testimonial report drawn

from machine-produced data does not overcome the Sixth

Amendment bar. This Court settled in Crawford that the “obviou[s]

reliab[ility]” of a testimonial statement does not dispense with the

Confrontation Clause. 541 U.S., at 62, 124 S.Ct. 1354; see id., at 61,

124 S.Ct. 1354 (Clause “commands, not that evidence be reliable, but

that reliability be assessed in a particular manner: by testing [the

evidence] in the crucible of cross-examination”). Accordingly, the

analysts who write reports that the prosecution introduces must be

made available for confrontation even if they possess “the scientific

acumen of Mme. Curie and the veracity of Mother Teresa.”

Melendez–Diaz, 557 U.S., at ––––, n. 6, 129 S.Ct., at 2537, n. 6.

Id. at 2715. 

Here, the state appellate court relied, inter alia, on the Ohio Supreme Court’s decision in

Crager to conclude that testimony from the prosecution’s DNA experts did not violate the

Confrontation Clause by relying on statistics generated by the FBI’s Popstat program when

testifying regarding the probability that it was Petitioner’s DNA on the bloody wall and cigarette,

even though no experts on the Popstat program itself, testified. On September 17, 2009, and prior

to the date that Petitioner’s judgment of conviction became final, however, the Ohio Supreme Court

vacated Crager’s conviction and remanded the case to the trial court for a new trial consistent with

Melendez-Diaz. State v. Crager, 123 Ohio St.3d 210 (2009). 

More recently, on June 18, 2012, in Williams v. Illinois, – U.S. –, 132 S.Ct. 2221 (2012), in

a five to four decision, the Supreme Court concluded that a testifying expert may assume the truth

of an out-of-court statement consisting of a DNA profile produced by an outside laboratory without

violating the Confrontation Clause. Goins v. Smith, 2012 WL 3023306, at *6 (N.D. Ohio July 24,

2012)(citing Williams). The facts in Williams indicate that the prosecution presented a DNA expert

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to testify a DNA profile produced by an outside laboratory and obtained from semen taken from

vaginal swabs of the victim matched a DNA profile produced by the state police laboratory using

a sample of Petitioner’s blood. Williams, 132 S.Ct. at 2227. In reaching this decision, the Supreme

Court reasoned that the State’s expert’s testimony regarding the laboratory results produced by an

outside agency were not offered for the truth, but solely to explain the assumptions on which the

expert based her opinion, and thus fell outside the scope of the Confrontation Clause. Id. at 2228. 

The Supreme Court stated: 

As a second, independent basis for our decision, we also conclude

that even if the report produced by Cellmark had been admitted into

evidence, there would have been no Confrontation Clause violation.

The Cellmark report is very different from the sort of extrajudicial

statements, such as affidavits, depositions, prior testimony, and

confessions, that the Confrontation Clause was originally understood

to reach. The report was produced before any suspect was identified.

The report was sought not for the purpose of obtaining evidence to be

used against petitioner, who was not even under suspicion at the time,

but for the purpose of finding a rapist who was on the loose. And the

profile that Cellmark provided was not inherently inculpatory. On the

contrary, a DNA profile is evidence that tends to exculpate all but

one of the more than 7 billion people in the world today. The use of

DNA evidence to exonerate persons who have been wrongfully

accused or convicted is well known. If DNA profiles could not be

introduced without calling the technicians who participated in the

preparation of the profile, economic pressures would encourage

prosecutors to forgo DNA testing and rely instead on older forms of

evidence, such as eyewitness identification, that are less reliable. See

Perry v. New Hampshire, 565 U.S. ––––, 132 S.Ct. 716, 181 L.Ed.2d

694 (2012). The Confrontation Clause does not mandate such an

undesirable development. This conclusion will not prejudice any

defendant who really wishes to probe the reliability of the DNA

testing done in a particular case because those who participated in the

testing may always be subpoenaed by the defense and questioned at

trial.

Id. 

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The parties have not addressed the impact of the Supreme Court’s holding in Williams,

however, and it appears unlikely that Williams, decided long after Petitioner’s judgment of

conviction became final, is to be retroactively applied on collateral review: 

No federal appellate court has yet addressed whether Bullcoming or

Williams established a “watershed” rule of criminal procedure, see

Vega v. Walsh, 669 F.3d 123, 127 (2d Cir.2012) (expressly not

deciding “whether the rulings of MelendezDiaz or Bullcoming apply

retroactively”), but district courts have found that it does not. See

Benjamin v. Harrington, 2012 WL 3248256, at *7 & n. 3 (C.D.Cal.

June 27, 2012) (noting that Bullcoming and Williams did not create

new rules, but are simply applications of the Melendez–Diaz and

Crawford holdings to new sets of facts); McMonagle v. Meyer, No.

CIV S–11–2115 GGH P., 2012 WL 273165, at *5 (E.D.Cal. Jan.30,

2012) (“[T]he Supreme Court's decision in Bullcoming was not made

retroactively applicable to cases on collateral review.”). Indeed, it is

difficult to imagine how it could. As another court recently

explained:

Bullcoming and Melendez–Diaz represent even less of

a watershed moment in criminal procedure than did

Crawford. Where Crawford completely redefined the

confrontation clause's requirements, Melendez–Diaz

further explored the characteristics of testimonial

statements under Crawford and, in turn, Bullcoming

expanded upon Crawford 's and Melendez–Diaz 's

rationales. Bullcoming, 131 S.Ct. at 2713–14, 2716-

17; Melendez–Diaz, 129 S.Ct. at 2532.... Thus, the [

] court's rationales barring retroactive application of

Crawford on collateral review apply with greater

force to Crawford 's progeny, Bullcoming and

Melendez–Diaz.

In re Hacheney, 166 Wash.App. 322, 269 P.3d 397, 404 (Wash.App.

Div. 2 2012).

Gilchrist v. United States, Nos. DKC 08-1218, DKC 02-0245, 2012 WL 4520469, at *11 (D.Md.

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Sept. 27, 2012).1

 

Further, the United States Supreme Court sharply divided over the reasoning in Williams,

“leaving ‘significant confusion in their wake.’” United States v. Garvey, 688 F.3d 881 (7th Cir.

2012), (quoting Williams, 132 S.Ct. at 2265 (Kagan, J., dissenting); see also id. at 2265 (Kagan, J.,

dissenting)(noting that “Five Justices specifically reject every aspect of [the plurality's] reasoning

and every paragraph of its explication”). 

This Court need not determine the issue, however, as the record reflects any error in

admission of statistical evidence regarding DNA evidence was harmless. “An error is not harmless

if it had a ‘substantial and injurious effect or influence in determining the jury's verdict.’” Jordan

v. Warden, Lebanon Correctional Inst., 675 F.3d 586, 598 (6th Cir. 2012)(quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted)). Such were not the

circumstances here. Even without admission of the statistical evidence complained of, there was

substantial evidence of Petitioner’s guilt. Petitioner’s handprint was found in the victims’s blood

on the inside wall of the house where she was killed, and that handprint had been made after, and

not before, the blood was on the wall. Trial Transcript, at 4123, 5300-5301. His DNA as well as

the victim’s was obtained from a cigarette butt found near the scene of the crime. Id. at 5065. 

Petitioner told police he had been in the house due to his job, but the prosecution offered evidence

that this statement was false. Id. at 4191, 4196, 4220, 4714. Although Brucer told police he left

town prior to the date of the murder, this explanation, too, proved to be false. Records of the van

1 “Crawford is not applicable on collateral review or retroactively.” Chinn v. Warden,

Mansfield Correctional Inst., No. 3:02-cv-512, 2011 WL 5338973, at *54 (S.D. Ohio Oct. 14,

2011)(citing Whorton v. Bockting, 549 U.S. 406 (2007); Dorchy v. Jones, 398 F.3d 783 (6th

Cir.2005). 

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that picked him up the night his car broke down showed that he left town on the night of the murder. 

Id. at 4259-4262, 4761, 4799-4804. Bloody denim matching the bindings that had been used to tie

the victim were found inside Petitioner’s van. Id. at 4279. The victim's blood was on the denim. 

Id. at 4413-21. Moreover, Petitioner’s attorney was able to cross examine the prosecution’s experts

on their lack of knowledge regarding the FBI’s Popstat program or how the statistical evidence was

obtained. 

For all the foregoing reasons, the Magistrate Judge cannot conclude that testimony by the

State’s DNA experts regarding the statistical probability that Petitioner’s DNA was located on

bloody drywall and the cigarette butt found near the scene of the crime had a substantial and

injurious effect on the jury’s finding of guilt. 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation

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will result in a waiver of the right to have the district judge review the Report and Recommendation

de novo, and also operates as a waiver of the right to appeal the decision of the District Court

adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir.1981).

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue.

s/Mark R. Abel 

United States Magistrate Judge

 

 

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