Filed 8/15/17 P. v. Scarbrough CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. LARRY RAYMOND SCARBROUGH, Defendant and Appellant.
|
A140978
(City & County of San Francisco Super. Ct. No. SCN219871)
|
Larry Raymond Scarbrough appeals from the judgment entered after the jury convicted him of first degree burglary of an occupied residence. (Pen. Code,[1] §§ 459, 667.5, subd. (c)(21).) Scarbrough contends his Sixth Amendment confrontation clause rights were violated by the admission of his DNA profile found on a cigarette butt found in the victim’s house without the testimony of the “actual” analyst who tested the evidence. We affirm the judgment.
I. BACKGOUND
On November 10, 2012, around 11:30 p.m., Paul Sawaya was in his Guerrero Street apartment, listening to music in his bedroom. From his room at the top of the stairs, he heard someone loudly running down the stairs. When Sawaya went into the living room, he discovered that his 15‑inch MacBook Pro laptop computer and his black backpack were missing. The black backpack contained a Kindle e-reader, personal diary, and a wallet. After Sawaya checked the apartment, he noticed that the front entry was unlocked and that there was a cigarette butt inside the apartment near the front stairs. Sawaya and his roommates did not smoke cigarettes. Sawaya called the police. Sawaya did not touch the cigarette butt.
Around 12:30 a.m. on November 11, 2012, San Francisco Police Department (SFPD) Officer Ryan Daugherty and his partner Officer Dittmer were at the Amit Hotel, about three and half blocks from Sawaya’s apartment. While Officer Dittmer remained in the hotel lobby, Officer Daugherty went upstairs and saw Scarbrough leave room 11 and ask a man in the hallway if he had any “trees” (slang for marijuana). Scarbrough removed a laptop from a messenger bag, and said “I just got this; I’ll give it to you for 500, maybe 450.” Officer Daugherty approached Scarbrough and asked him for his name. Scarbrough said his name was “Raymont Scarbrough.” Officer Daugherty ran a records check over the radio, indicating that, “Raymont Scarbrough” was an alias for “Larry Scarbrough, who was a parolee at large with an active warrant” for a parole violation. Officer Daugherty arrested Scarbrough and walked him to the Mission police station, which was about a block and half away. Officer Daugherty took the laptop from Scarbrough, as well as the Kindle e-reader. The laptop had Sawaya’s name on the log-in screen. Sawaya was the registered user for the Kindle.
The jury viewed surveillance footage from the Amit Hotel.[2] The recording showed a man, identified by Officer Daugherty as Scarbrough, at the hotel around 11:39 p.m., carrying a backpack. The recording showed Scarbrough entering room 11, then wheeling a cart with a black backpack on top of it, and later interacting with the man in the hallway.
Around 3:00 a.m., Officer Daugherty responded to Sawaya’s call to police and returned the laptop and Kindle to him. Officer Daugherty collected the cigarette butt using a fresh pair of latex gloves and a clean index card. The cigarette butt was later picked up by the SFPD crime scene investigation unit and booked into evidence.
Sergeant Arline Gilmore, the inspector assigned to the case, sent the cigarette butt for DNA testing through CODIS[3] at the Department of Justice (DOJ). The testing revealed that the cigarette butt contained DNA and “t matched DNA that had been obtained from Larry Scarbrough.” Sergeant Gilmore then obtained a warrant to collect DNA oral swabs from Scarbrough. She explained that although Scarbrough’s DNA profile was on file at the DOJ, the policy is to obtain another sample, so that the SFPD crime lab can testify as to the accuracy of the test. She added that another confirmatory DNA sample was necessary because the DOJ holds “samples for everybody . . . [and] [t]hey’re not going to go and testify at every hearing all over the country.”
Officer Robert Trujillo served the warrant and collected Scarbrough’s DNA samples. After obtaining the samples, Officer Trujillo placed them in a sealed plastic bag and brought them back to the police station, where they were booked into evidence. Sergeant Gilmore then requested the SFPD’s crime lab to have Scarbrough’s DNA samples compared with the DNA from the “cigarette butt on file.”
Following standard practice, the crime lab sent the samples to Cellmark Forensics (Cellmark), a private laboratory in Dallas, Texas. Sergeant Gilmore testified that the results from the Cellmark testing “were that the DNA from Mr. Scarbrough matched the DNA obtained from the cigarette butt at the scene of the crime.”
Kelli Byrd, a DNA analyst, supervisor, and technical reviewer at Cellmark testified regarding the DNA analysis and match in this case, and the statistical significance of the match. She explained that she is “involved in all aspects of the DNA testing [at the Cellmark laboratory], from receipt of evidence through review of cases and supervision of other analysts.” Byrd further explained that at Cellmark, “every case that is generated is assigned by an analyst, and then a technical reviewer is someone who follows along behind that analyst and reviews every . . . piece of paper generated in the course of that case, along with the report, and make[s] sure that everything in the case was generated properly, that all controls were correct, and the results are correct.” Byrd estimated that approximately 70 percent of her work involves reviewing other people’s work. Her work as an analyst consumes the other 30 percent of her time.
Byrd reviewed the laboratory notes regarding Scarbrough’s DNA analysis, and she brought them to assist in her testimony. Having worked at Cellmark for 12 years, she was familiar with the way notes are kept and made at Cellmark. She explained that “[e]very step of the process has a paperwork that is generated with it and is kept in the course of our daily business.” The notes, which are taken on a daily basis, are made immediately at or near the time of testing.
Although Byrd did not personally view the actual cigarette butt and swabs, she “supervised in general and reviewed the case after it was done.” She added that she “didn’t supervise personally every step of the process,” but she did review the lab notes and performed her own independent review of the DNA data generated by the individuals that she supervised. As part of her review, Byrd examined a comparison analysis of the DNA profile from the oral swabs taken from Scarbrough with the DNA profile from the cigarette butt. Based on that analysis, Byrd opined that “[i]n the absence of an identical twin, the DNA profile obtained from the cigarette butt is identified as originating from Larry Scarbrough.” Byrd testified that a statistical analysis was then performed on the match between the swabs and the cigarette butt. She explained that “[w]hen we are doing a comparison, of course, our intent is always to exclude a person as being the source of that profile. But when we do get a match, we are doing a statistical analysis to determine who else in the random North American population could also have that same DNA profile.” Byrd testified that “most common number” she received regarding the statistical analysis between the cigarette butt and the oral swabs was that “one in 562.4 quadrillion individuals could also have that DNA profile.” She further explained that the current population of the earth is somewhere between seven and eight billion, but if there were 562 quadrillion people in the world, “you would expect one other person to probably have that profile.” Based on this “astronomic[ally]” high statistic, Cellmark was “allowed to say that . . . [the] profile [in that piece of evidence] is identified as originating from that person [that it matched].” Byrd concluded that “all of the results were generated according to [Cellmark] proper protocols and all controls worked properly and the results were correct.”
II. DISCUSSION
Scarbrough contends his Sixth Amendment confrontation clause rights were violated by admission of evidence relating to the match of his DNA profile with the DNA found on the cigarette butt. The Attorney General argues that Scarbrough, who represented himself at trial, failed to object on these grounds below. Although Scarbrough did object on general hearsay grounds to Sergeant Gilmore’s testimony about the collection of a second DNA sample, he did not challenge this testimony as violating his Sixth Amendment right to confront and cross-examine the witnesses against him. And, as for the testimony of the Cellmark analyst, Scarbrough asserted various objections, but did not raise a Sixth Amendment issue. In any event, we exercise our discretion and review this otherwise forfeited claim, and conclude it fails on the merits. (See [i]People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Johnson (2004) 119 Cal.App.4th 976, 984 [“ ‘The fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue.’ ” (Italics omitted)].)
The Sixth Amendment provides in relevant part, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” “[G]enerally the Sixth Amendment’s confrontation right bars the admission at trial of a testimonial out-of-court statement against a criminal defendant unless the maker of the statement is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination.” (People v. Lopez (2012) 55 Cal.4th 569, 580–581 (Lopez).) Both the United States Supreme Court and our Supreme Court have wrestled with the application of this principle to the context of scientific testing and expert testimony. (See Williams v. Illinois (2012) 567 U.S. 50, 56–59 [affirming conviction where Cellmark expert testified about the results of DNA tests she did not personally conduct as the basis of her opinion the defendant’s DNA was present in swabs taken from the rape victim]; Bullcoming v. New Mexico (2011) 564 U.S. 647, 651–652 [confrontation clause does not permit the prosecution to introduce the blood alcohol findings of a nontestifying forensic analyst recorded in a signed formal written certificate through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the certificate]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 310 [violation of confrontation when written certificates, executed under oath, stating a drug test revealed the presence of cocaine admitted without the testimony of the scientist who performed the test]; People v. Dungo (2012) 55 Cal.4th 608, 610, 621 [factual observations in the autopsy report were not testimonial]; Lopez, supra, 55 Cal.4th 569, 582, 585 [nontestifying analyst’s laboratory report not made with the requisite degree of formality or solemnity to be considered testimonial under the Sixth Amendment].)
Here, the primary issue is whether Byrd relayed testimonial statements from fellow Cellmark workers in violation of the confrontation clause or, alternatively, provided admissible expert testimony about the results of nontestimonial DNA testing. “To be considered testimonial, the out-of-court statement (1) must have been made with some degree of formality or solemnity and (2) must have a primary purpose that pertains in some fashion to a criminal prosecution.” (People v. Barba (2013) 215 Cal.App.4th 712, 720–721 (Barba); see People v. Holmes (2012) 212 Cal.App.4th 431, 438 (Holmes) [“It is now settled in California that a statement is not testimonial unless both criteria are met”].)
Applying this framework, it does not necessarily violate the confrontation clause for expert witnesses who have supervised but not performed the underlying laboratory work to testify about the results of DNA testing. (Holmes, supra, 212 Cal.App.4th at pp. 433–434.) For example, the testifying witnesses in Holmes “referred to notes, DNA profiles, tables of results, typed summary sheets, and laboratory reports that were prepared by nontestifying analysts.” (Id. at p. 434.) “None of these documents was executed under oath. None was admitted into evidence. Each was marked for identification and most were displayed during the testimony. Each of the experts reached his or her own conclusions based, at least in part, upon the data and profiles generated by other analysts.” (Ibid.) The Holmes court concluded the test data and reports were not sufficiently solemn or formal to qualify as testimonial because they consisted of “unsworn, uncertified records of objective fact.” (Id. at p. 438.) Though the court noted the data and reports were generated for the primary purpose of a criminal prosecution, this alone was not enough to render the DNA test data testimonial. (Ibid.; see Barba, supra, 215 Cal.App.4th at pp. 741–743 [DNA report relied on by testifying expert in forming opinions not testimonial because it both lacked the necessary formality or solemnity, and because its primary purpose did not pertain to a criminal prosecution].)
Here, Byrd testified as to her own conclusions based on data generated by other analysts. No formal documents from the nontestifying technicians were admitted into evidence. “Unsworn statements that ‘merely record objective facts’ are not sufficiently formal to be testimonial.” (Holmes, supra, 212 Cal.App.4th at p. 438.) “So long as a qualified expert who is subject to cross-examination conveys an independent opinion about the test results, then evidence about the DNA tests themselves is admissible.” (Barba, supra, 215 Cal.App.4th at p. 742.) “Defendant cites no authority that testimony concerning raw data, by an expert subject to cross-examination, violates the confrontation clause.”[4] (People v. Steppe (2013) 213 Cal.App.4th 1116, 1126 [rejecting confrontation clause challenge to expert testimony regarding DNA testing].) Because we reject Scarbrough’s assertion of confrontation clause error on the first prong of the analysis, we need not address whether the primary purpose of some or all of the DNA testing pertained to a criminal prosecution.
To the extent Scarbrough claims Sergeant Gilmore’s testimony that the DNA on the cigarette butt matched Scarbrough’s CODIS profile constituted inadmissible hearsay and violated his confrontation rights, any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Sergeant Gilmore’s brief testimony was primarily focused on SFPD protocol for handling DNA evidence and how Scarbrough’s DNA evidence was handled. To the extent her testimony impermissibly connected the cigarette butt to Scarbrough, in light of Byrd’s admissible testimony regarding the DNA profile matching and statistical analysis indicating that only one in 562.4 quadrillion people would have that same DNA profile, we conclude that it is beyond a reasonable doubt that the verdict would have been the same without the challenged testimony.
III. DISPOSITION
The judgment is affirmed.
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REARDON, J.
We concur:
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RUVOLO, P. J.
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STREETER, J.
[1] All further statutory references are to the Penal Code unless otherwise noted.
[2] The surveillance footage is not included in the record on appeal.
[3] CODIS refers to the FBI’s Combined DNA Index System. Section 295, subdivision (g), provides: “The Department of Justice, through its DNA Laboratory, shall be responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaison with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the FBI’s Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide.”
[4] People v. Sanchez (2016) 63 Cal.4th 665, which was pending before the California Supreme Court at the time of Scarbrough’s appellate briefing does not alter this conclusion. In Sanchez, the court held that “case-specific statements related by the prosecution expert concerning defendant’s gang membership constituted inadmissible hearsay,” and “[s]ome of those hearsay statements were also testimonial” and should have been excluded under Crawford v. Washington (2004) 541 U.S. 36. (Sanchez at pp. 670–671.)
