A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE William Van Der Pol, Jr. Gregory F. Zoeller Mc Calla, Alabama Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General

Eric Parker Babbs Deputy A ttorney General Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 55S01

- 1312

- CR

- 841

SCOTT SPEERS, Appellant ( Defendan t b e low),

v.

STATE OF INDIANA, Appellee ( Plaintiff b e low)

.

_________________________________ Appeal from the Morgan Superior Court II , No. 55D02

- 1202

- FC

- 290 The Honorable Christopher L. Burnham , Judge

_________________________________ On Petiti on To Transfer from the Indiana Court of Appeals, No. 55A01

- 1208

- CR

- 391

_________________________________

December 19, 2013

Rucker , Justice.2 In this case we examine whether a laboratory technician involved in the chain of custody
of DNA evidence must testify at trial in order to satisfy the demands of a defendant’s Sixth
Amendment right of confrontation

. We conclude the Constitution does not so require.

Facts and Procedural History

During the evening hours of October 25, 2010 a gun s tore in downto wn Martinsville was burglarized. The store’s alarm was activated and the Martinsville police promptly responded to the scene. They found the front door of the store had been forced open, a large glass display case
had been broken, and eight guns were mis sing. The store’s surveillance video did not capture the face of the perpetrator. Police found small spots of what appeared to be blood on two pieces of broken glass from the display case. Officer Jim Bradley, the evidence technician, processed the

scen e. In doing so Officer Bradley placed each piece of glass into separate box es , sealed the boxes with red evidence tape, and affixed his initials. He then took this evidence to the Indiana State Police Laboratory for testing. Although the record does not reveal the details, at some point Scott Speers was identified as a suspect as a result of a CODIS database search. 1 Thereafter, pursuant to a search warrant, p olice obtained a cheek swab from Speers and this sample was also submitted to the Indiana State Police Laboratory. A f orensic analyst examined
the ev idence and concluded that Speer s ’ DNA matched the DNA from the pieces of glass.

On February 22, 2011, t he State charged Speers with burglary as a class C felony and
theft as a c lass D felony

. A fter a jury trial that began on July 17, 2012, Spe e rs was convicted as charged

. T he reafter the trial court sentenced Speers to eight years for burglary and three years
for theft
, and ordered the sentences to run concurrently for a total executed term of eight y ears

.

Speers appealed raising the following restated claims: (1) the trial court erred in denying
his Indiana Criminal Rule 4(C) motion for discharge, (2) the trial court erred in denying his
motion for mistrial, and (3) the trial court erred by admi tti ng DNA evidence in violat ion of his

1 An acronym for Combined DNA Index System “CODIS” is “a computer software program that operates national databases of DNA profiles from convicted offenders and unsolved crime s cene evidence.” Anderson v. State , 961 N.E.2d 19, 24 (Ind. Ct. App. 2012).3 Sixth Amendment right of confrontation. The Court of Appeals rejected all three claims and
affirmed the judgment of the trial court

. See Speers v. State , 988 N.E. 2d 1238 (Ind. Ct. App. 2013). Speers s eeks transfer whi ch we now grant to address his Sixth Amendment argument

. In all other respects w e summarily affirm the opinion of Court of Appeals

. See Ind. Appellate Rule 58(A). And although we also affirm the judgment of the trial court, we do so on grounds slightly
d ifferent from those of our colleagues. Additional relevant facts are set forth below.

Standard of Review

Generally, “ [ a ] trial court has broad discretion in ruling on the admissibility of evidence and we will disturb its ruling s only where it is show n that the court abused that discretion.”
Turner v. State , 953 N.E.2d 1039, 1045 (Ind. 2011). But where, as here, a constitutional violation is alleged, the proper standard of appellate review is de novo. See Jones v. State , 982 N.E.2d 417, 421

- 22 (Ind. Ct. App. 2013), trans. denied (citing United States v. Aguila

– Urbay
, 480 Fed. Appx. 564, 566 (11th Cir. 2012) (“We review evidentiary rulings for an abuse of
discret ion. . . . However, we review de novo the question of whether hearsay statements are

test imonial for purpose s of the Confrontation Clause.” ( internal quotation omitted) ) ; see also
United States v. Nettles , 476 F.3d 508, 517 (7th Cir. 2007) (“We review de novo a district court ruling that affects a defendant’ s Sixth Amendm ent rights.” (citation omitted) )

.

Discussion

The Confrontation Clause of the Sixth Amendment provides in relevant part “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. ” U.S. Const. amend. VI. “[T]his bedrock procedural guarantee applies to both federal and state prosecutions.” Crawford v. Washington , 541 U.S. 36, 42 (2004). The
Confrontation Clause applies to an out

- of

- court statement if it is testimonial in nature, the declarant is not unavailable, and the defendant has had no opportunity to cross

- examine the
declarant. See id. at 59.4 Characterizing as a “crucial step” the transferring of blood from a piece of glass to a swab for testing, Speers contends his right of confrontation was viol ated b ecause the technician who performed this function “never testified nor was subject to cross examination.” Br. of Appellant
at 8. The facts are these. As in dicated earlier a Martinsville p olice evidence technician observed what appeared to be small drops of blood on two pieces of broken glass present at the crime scene. The officer placed each piece of glass into a separate box, sealed the boxes with red evidence tape, and affixed his initials. He later took this evidence to the Indiana State Police
Lab oratory for te sting. A laboratory technician

— Nichole Stickle

— transferred the purported blood drops from the glass and swabbed them onto a white cloth for testing. Stickle did not testify at trial; however, she “[did]n’t do any testing.” Tr. at 194. Ins tead Lori James

— a forensic DNA analyst for the Ind iana State Police Laboratory

— conducted the analysis of the swabs taken from the piece of glass. Among other things she testified: “ A s a DNA analyst I receive items of evidence that contain potential source s o f DNA. And I examine those items of evidence to develop a unique profile from them, so that I may be able to either include or exclude a person as being a possible contributor to that sample.” Tr. a t 170. Over Speers’ objection the State introduced t hree exhibits into evidence , all of which James prepared after conducting her analysis: Ex hibit 7

— STR Summary Sheet identifying two “swab[s] o f glass”;
Exhibit 9

— Certificate of Analysis noting the “DNA profile obtained from the swab s of the glass

. . . is consistent with an unknown male . . . .”; and Exhibit 1 0

— Certificate of Analysis noting
the “DNA profiles obtained f rom the swabs of glass . . . match the DNA profile of Scott Speers

.

. . .” Vol. of Exhibits (State’s Ex. 7, 9, 10). After comparing a kn own sample of Speers’ DNA (obtained through a cheek swab pursuant to a search warrant) to the swab s taken from the glass found at the crime scene, James concluded: “In the absence of an identical twin, Scott Spe e rs is
the source of the DNA to a reasonable degree of scientific certainty

. . . . and the statistic for this particular sample is 1 in 3.4 quintillion.” Tr. at 214

.

Speers insists his right of confrontation was violated because the State failed to present
Stickle for cross examination. And he gr ounds his argument in two of the four separate opinions
written by justices of the United States Supreme Court in Williams v. Illinois , 132 S. Ct. 2221 (2012). Williams involved a comparison of two DNA profiles, one of semen recovered from a rape victim a nd one residing in the state’s forensic database. A male DNA profile was5 developed by Cellmark, an accredited outside laboratory
, from swabs taken from the victim’s rape kit

. Williams , 132 S. Ct. at 2230. The database profile was developed by a state po lice laboratory analyst from a sample taken from the defendant pursuant to his arrest in 2000 on unrelated charges. At trial, the State presented the analyst who performed the testing of the defendant’s sample. She testified as to the process she used to develop the DNA profile, and she stated that she had entered the profile into the state’s forensic database. Id. at 2229. The State then presented an expert witness who testified as to the chain of custody of the vaginal swab sample. Specifically, this witness confirmed that records of the state police lab reflected that the lab had sent the vaginal swabs to Cellmark and that Cellmark had returned them along with a deduced male DNA profile. Id. at 2230. The witness then testified that she found a matc h between the Cellmark DNA profile derived from the vaginal swabs and the defendant’s DNA profile. Id. But Cellmark’s report on the vaginal swab profile was not admitted into evidence, no Cellmark analyst testified at trial, and the state’s expert did no t testify that she had conducted or observed the testing on the vaginal swabs. Id. Five justices on the Williams Court determined that the state’s expert’s testimony was not an adequate substitute for testimony from the Cellmark analyst who performed the testing on the vaginal swabs. 2 See Williams , 132 S. Ct. at 2268 (Kagan, J., dissenting).

Unlike Williams
, here both DNA profiles were analyzed by a single analyst

— state police lab analyst Lori James. James completed and signed the Certificate of Analy sis matching the DNA obtained from the glass swabs to the DNA obtained from Scott Speers. And James testified at trial as to her process in testing and analyzing all these samples, and as to her
conclusion in making the match. Tr. at 203

- 06, 212

- 14. Jam es testified that she did not actually prepare the glass swabs but that another technician had transferred the blood from the pieces of glass to the swabs that James eventually tested. We agree with the Court of Appeals that
Williams

— in which the testimon y of the analyst who performed the DNA testing on the crime scene sample was entirely absent

— provides little guidance in evaluating the facts before us. See Speers , 988 N.E.2d at 1244 (finding Williams “inapposite”).

2 In a splintered set of opinions, five justices on the Williams Court ultimately determined that the testifying expert’s reliance on Cellmark’s report to make a DNA match to the defendant did not constitute te s timonial evidence and thus was not subject to the guarantees of the Confrontation Clause. But only a pl u rality agreed as to the rationale.6 However, in rejecting Speers’ Confro ntation Clause argument the Court of Appeals relied on this Court’s opinion in Pendergrass v. State , 913 N.E.2d 703 (Ind. 2009). Although we do not agree with Speers’ assertion that Williams abrogated Pendergrass , we do conclude the continued validity of Pendergrass has been undermined by subsequent authority from the United States Supreme Court. But as we explore below the subsequen t authority confirms that Speer s ’ right of
confrontation was not violated.

In Pendergrass a majority of this Court determ i ned that the defendant’s cross examination of a laboratory supervisor, who had performed a “technical review” of the DNA tests at issue, satisfied the Confrontation Clause even though she had not performed the actual DNA testing or analysis and the analyst who performed the test did not testify at trial

. Pendergrass , 913 N.E.2d

at 704, 708. The Court held that the State’s decision to call the laboratory supervisor “with direct involvement” in the technical process “sufficed for Sixth Amendment purposes.” Id

. at 708.

Shortly after our Pendergrass decision, the United States Supreme Court decided Bullcoming v. New Mexico , 131 S. Ct. 2705 (2011). That case involved a driving while intoxicated conviction which was based in part on a forensic laboratory repo rt certifying the
defendant’s blood alcohol concentration. Similar to the facts in Pendergrass , t he analyst who performed the testing and signed the certification did not testify at trial. Instead, the state called another analyst who , like the superviso r in Pendergrass
, was familiar with the laboratory testing procedures, but had neither participated in nor observed the test on the defendant’s blood sample.
In d eciding th e case the Court declared:

The question presented is whether the Confrontation Cl ause 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 o bserve the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavai lable at trial, and the accused had an opportunity, pretrial, to

cross

- examine that particular scientist.7 Id. at 2710 (emphasis added). Thus Bullcoming makes clear that it does not “ suffice[ ] for Sixth Amendment purposes” that the State may merely call a s a witness a laboratory supervisor “with direct involvement” in the technical process. Pendergrass , 913 N.E.2d at 708. Instead

“ surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification .” Bullcoming
, 131 S. Ct. at
2710

.

Hence although Pendergrass provides the State no refuge, Speers nonetheless cannot prevail on his Sixth Amendment claim. In this case the sole analyst who conducted the DNA

tes ting and prepared the laboratory reports that were introduced as exhibits did in fact testify at
trial. This is precisely the procedure dictated by Bullcoming

. By contrast, the witness about whom Speers complains was merely the technician who removed the sample f or later testing and analysis

— just one person involved in the chain of custody of the evidence. The question is whether the State was required to present this witness as well in order to honor Speers’ constitutional right of confrontation. This p oint seems to have been put to rest in Melendez

- Diaz
v. Massachusetts , 557 U.S. 305 (2009). In that case the defendant was convicted for drug
offenses based partly on certificates of analysis stating the substance found in seized bags was
cocaine of a cer tain weight, admitted without any live testimony either by the analyst who signed the affidavits or by anyone else. The S tate ’s position was that the affidavits stood on their own,
and thus no witnesses were called. See Melendez

- Diaz
, 557 U.S. at 308

- 09

. After concluding that the certificates were “quite plainly affidavits,” the Supreme Court held that the affidavits clearly constituted testimonial evidence because they “are functionally identi cal to live, in

- court testimony
, doing ‘precisely what a witn e ss does on direct examination,’ ” thus the analysts swearing their accuracy were “witnesses” for Sixth Amendment purposes

. Id. at 310

- 11 (quoting Davis v. Washington , 547 U.S. 813, 830 (2006) )

. And “[a]bsent a showing that the analysts
were unavailable t o testify at trial and that petitioner had a prior opportunity to cross

- examine
them
, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Id

. at 311 (quoting
Crawford , 541 U.S. at 54) (emphasis omitted)

. Responding to the dissent’s co ncerns about the consequences of its holding, the Melendez

- Diaz majority declared:8 Contrary to the dissent’s suggestion . . . we do not hold, and i t is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authen ticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. While the dissent is correct that “[i]t is the obligation of the prosecution to establish the chain of custody” . . . this does not mean tha t everyone who laid hands on the evidence must be called.

Melendez

- Diaz , 557 U.S. at 311 n.1 (quoting id. at 335 )

. See also Bullcomin g, 131 S. Ct. at 2712 n.2 (“It is up to the prosecution

. . . to decide what steps in the chain of custody are so
crucial as to require evidence

. . . . ”) (quoting Melendez

- Diaz , 557 U.S. at 311 n.1).

Essentially , there is no Confrontation Clause violation where the State introduces evidence and links in the chain of custody of that evidence are missing. Indeed, “the Sta te need not establish a perfect chain of custody, and any gaps go to the weight of the evidence and not its admissibility

. ” Kennedy v. State , 578 N.E.2d 633, 639 (Ind. 1991). In this case Speers pointed

out during cross

- examination of James that she was “not the person who took the purported blood off the glass,” “that witness is not going to be testifying here today,” and “if that person screwed it up, no matter what you did after the fact, all you would get would be an erroneous
result.” See Tr. at 22 0, 21. The significance of any gap created by the absence of Stickle’s testimony was a matter for the jury to weigh. The trial court did not err by admitting the DNA evidence over Speers’ Confrontation Clause objection.

Conclusion

We affirm the judgme nt of the trial court.

Dickson, C.J., and David, Massa and Rush, JJ., concur.