A report from an “outside” lab (Orchid Cellmark) relied on by a State Crime Lab technician for “investigative” purposes in developing a DNA match between defendant and assailant wasn’t “testimonial,” therefore didn’t violate confrontation:
¶1 Richard Deadwiller appeals the judgments entered on jury verdicts convicting him of two counts of second-degree sexual assault with the use of force. See Wis. Stat. § 940.225(2)(a). He contends that the trial court violated his right to confrontation by allowing a technician from the Wisconsin State Crime Laboratory to rely on a scientific report that profiled the DNA left on the victims by their attacker. We held this appeal pending the United States Supreme Court decision in Williams v. Illinois, 567 U.S.___, 2012 WL 2202981 (June 18, 2012), which, although argued December 6, 2011, was released on June 18, 2012. As we see below, Williams determined that reports like the one in this case are not “testimonial” and, therefore, may be relied on by a testifying expert without violating a defendant’s right to confrontation even though the person who prepared the report does not testify. Accordingly, we affirm.
The court determines that, though Williams is a split decision, the conclusion of five Justices (albeit for different reasons) that the lab report in that case wasn’t testimonial “governs this case,” ¶12. Briefly: Deadwiller was tried for sexually assaulting two different victims. Semen samples were collected and sent to Orchid Cellmark, which developed DNA profiles and reported that each matched Deadwiller. No one from Cellmark testified. The testifying State Lab technician (Witucki) “assured himself that Orchid cellmark followed standard DNA-analysis protocols[.]” Nonetheless, he described the Cellmark report as mere “investigative information” prompting his own, closer look. Witucki thus obtained samples of Deadwiller’s DNA and after performing his own comparisons, concluded that Deadwiller was the source of semen DNA collected from the victims. Deadwiller testified and admitted being the source of the semen; his defense was that each victim consented to sex.
Witucki performed his own analysis – he “personally determined that the DNA profiles showed semen, and compared them to profiles stored in a DNA data bank,” ¶4 – so where is the potential confrontation problem? Although the decision isn’t explicit on this point, it has to be that the Cellmark report was relied on for proof of the profiles that Witucki matched to Deadwiller’s sample. The court’s attention is therefore focused on the establishment of “a sufficient foundation for the jury to conclude that” Cellmark’s analysis followed proper protocol, ¶12.
¶13 Under Wis. Stat. Rule 909.01, a proponent of evidence establishes its authentication if there is “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Stated another way, all that need be shown is that it is “improbable that the original item has been exchanged, contaminated or tampered with.” B.A.C. v. T.L.G., 135 Wis. 2d 280, 290, 400 N.W.2d 48, 53 (Ct. App. 1986) (chain of custody is one form of authentication). Further, unlike the situation to which Justices Alito and Kagan referred to in Williams, the jury here did not have to rely on Witucki’s testimony for it to conclude beyond a reasonable doubt that the semen samples sent to Orchid Cellmark were those recovered from Kristina S. and Chantee O. See State v. Poellinger, 153 Wis. 2d 493, 501, 507–508, 451 N.W.2d 752, 755, 758 (1990) (Proof of a crime’s elements may be made by circumstantial evidence that logically flows from the direct evidence.). Additionally, Witucki testified that he personally reviewed and approved what Orchid Cellmark had done. This is thus akin to the situation in State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93 (Ct. App. 2005), a post-Crawford decision, where we held that the defendant’s confrontation right was not violated by a testifying expert’s reliance on a report prepared by an analyst who did not testify because the testifying expert “performed a peer review” of the non-testifying analyst’s tests, and “formed his opinion based on his own expertise and his own analysis of the scientific testing.” Barton, 2006 WI App 18, ¶16, 289 Wis. 2d at 214, 709 N.W.2d at 97.
¶14 We are bound in this case by the judgment in Williams, and the narrowest holding agreed-to by a majority (albeit with different rationales) is that the Illinois DNA technician’s reliance on the outside laboratory’s report did not violate Williams’s right to confrontation because the report was not “testimonial” and therefore did not implicate the Confrontation Clause. See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ….’”) (quoted source omitted, ellipses by Marks). Under the facts here, the Orchid Cellmark report was not “testimonial.” We affirm.