Opinion
21-CV-2680 (ER) (RWL)
05-02-2022
ELLIOT CARTER, Petitioner, v. CHRISTOPHER MILLER, Superintendent of Great Meadow Correctional Facility, Respondent.
REPORT AND RECOMMENDATION TO HON. EDGARDO RAMOS HABEAS CORPUS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Elliot Carter, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of first-degree rape by jury in the Supreme Court of the State of New York, New York County. Carter argues that his petition should be granted because the DNA evidence presented against him was improperly entered into evidence through a Criminalist who did not herself perform, witness, supervise, or independently analyze the testing of the DNA samples. Carter contends that the admittance of this evidence violated his confrontation rights granted by the Sixth Amendment to the U.S. Constitution. For the reasons that follow, I recommend that Carter's petition be DENIED.
BACKGROUND
A. The Crime
In the early morning of May 5, 2015, the employer of CW,a part-time masseuse, directed her to an appointment at 315 West 61st Street. (7/21/2016 Tr. 67.) According to CW's testimony, she was let into the building by the building's security guard. (7/21/2016 Tr. 68, 80.) CW and the security guard were the only people in the lobby. (7/21/2016 Tr. 68.) The security guard told CW where to find the elevators, but as CW made her way in the direction of the elevators, the security guard followed. (7/21/2016 Tr. 69, 82.) The security guard then grabbed CW by the hair, and using “very strong force,” pushed her into an unlit storage room. (7/21/2016 Tr. 69.) There, CW testified, the security guard removed her underpants and raped her. (7/22/2016 Tr. 85-88.)
“CW” refers to the victim's initials, which are used to protect her identity.
“Tr.” refers to the transcripts of Carter's trial. Dates prior to “Tr.” refer to the first date covered in a particular transcript, as transcripts begin anew on different days of the proceeding. For instance, the transcript labeled “7/21/2016” contains the proceedings from July 21 and 22, whereas the transcript labeled “7/25/2016 Tr.” contains proceedings of July 25, 26, and 27, 2016.
When the security guard finally let CW leave, she found her cell phone, left the building, and crossed the street. (7/21/2016 Tr. 89.) Once she was a relatively safe distance away, CW called a friend to tell her what had happened. (7/21/2016 Tr. 90.) CW then called her employer and the police. (7/21/2016 Tr. 90-91.) When the police arrived, CW put her hand under her skirt and showed the officers what appeared to be semen. (7/21/2016 Tr. 95; 7/25/2016 Tr. 164.) The security guard, Elliott Carter, was arrested, and CW was taken to St. Luke's Hospital. (7/18/2016 Tr. 21-22; 7/21/2016 Tr. 96.)
While at the hospital, a sexual assault forensic examiner nurse examined and interviewed CW. (7/25/2016 Tr. 15-33, 48-49.) During the course of her examination, the nurse documented and photographed CW's injuries and collected samples from CW's underwear and vagina, which she placed in a sexual assault forensic examination evidence kit and gave to Officer Zhang Chen of the New York City Police Department (“NYPD”). (7/25/2016 Tr. 22-35, 165-66.) That kit was received by the New York City Office of the Chief Medical Examiner (“OCME”) as a vouchered piece of evidence from the NYPD. (7/25/2016 Tr. 115.) Several months after samples were collected from CW, an NYPD detective took and vouchered a buccal swab from Elliott Carter. (7/25/2016 Tr. 234, 237-39.) That sealed sample was also sent to the OCME. (7/25/2016 Tr. 120, 240.)
B. Trial
At trial, The People introduced several exhibits through CW's testimony, including a 911 call from CW, photos of CW's injuries, and a surveillance video of the incident. (7/21/2016 Tr. 107-14, 121, 123-26.) The surveillance video depicted a “struggle” between CW and Carter, during which Carter “grabbed [CW's] hair” as she attempted to “take charge to the door,” and pushed her into the closet. (7/21/2016 Tr. 116-17.)
On summation, the prosecutor played a slowed-down version of the video and described to the jury how CW was “thrown against the wall” by Carter, how Carter was “holding [CW] by her hair,” and how Carter “drops [CW]'s body to the ground and as you can see by the movement of her body she is swept right into that closets [u]nless she has wheels on her rear-end, I don't think any other way she could have gotten into that closet that way.” (7/25/2016 Tr. 297.)
The People also called several witnesses in addition to CW. Officer Chen testified that when he responded to the scene, CW was upset and showed him “a handful of semen or body fluid” from under her skirt. (7/25/2016 Tr. 164.) Testimony about that night, from both an NYPD detective with the Special Victims Division and the sexual assault forensic examiner nurse from St. Luke's Hospital, described injuries on CW consistent with sexual activity and that CW appeared upset. (7/21/2016 Tr. 39; 7/25/2016 Tr. 17, 22-30, 33-34, 74.)
Carter's defense counsel called no witnesses. During cross-examination of CW, defense counsel asked whether CW was paid on the night in question and whether her services were advertised on Backpage.com. (7/21/2016 Tr. 129, 138.) On summation, Carter's lawyer focused on CW's attire and behavior, suggested that sex with Carter was consensual, and heavily implied that CW was a prostitute rather than a masseuse. (7/25/2016 Tr. 261, 265, 270-71)
C. The Testimony Of Jaheida Perez
The People also called Jaheida Perez, a Criminalist III at OCME and an expert on DNA analysis. (7/25/2016 Tr. 76-77, 80.) Perez testified that the DNA profile generated by the sample taken from Carter matched the profile of “Male Donor A,” which was generated from multiple samples taken from CW's vagina and underwear. (7/25/2016 Tr. 120, 128.) First, however, Perez explained the processes of DNA analysis at OCME and her role in testing the relevant samples in this case. Perez testified to the following: When DNA is tested, analysts test for 15 locations (“loci”) along the DNA strand and find alleles (identified with numbers) at each locus. Every individual has two alleles, or numbers, per locus - one received from the person's mother and the other from their father. The DNA profile of a person is the collected series of those numbers and is specific to each individual person. (7/25/2016 Tr. 83.)
According to an NYC document describing the roles of OCME staff, relevant examples of a Criminalist III's responsibilities include the “perform[ance] and/or supervis[ion of] a wide range of complex scientific analyses of evidentiary material and specimens,” the supervision of less-experienced Criminalists and the review of laboratory procedures, and “[t]estif[ying] in legal proceedings as an expert witness concerning findings as established by the laboratory analyses.” The latter can also be performed by a Criminalist II. Criminalist, NYC.gov (Sept. 29, 2004), http://www.nyc.gov/html/ocme/downloads/pdf/ jobscriminalist.pdf.
Perez then testified to OCME's protocols. First, a sign-in specialist receives an item of evidence, reviews the case information, and designates the item to be examined. Then, a Criminalist IVassigns the case to a group for examination. Once the case and evidence are received by the group, a Criminalist examines the packaging and vouchers that the evidence is consistent with case information. Then, the evidence is examined for any biological material from which a DNA sample can be extracted. That sample is sent on for extraction, through which the DNA is removed from the cell. After extraction comes quantitation, where a Criminalist determines if there is enough DNA in the sample to be further examined. After the amount of DNA is determined to be enough, copies of the DNA are made by a process called amplification. Finally, samples of the DNA are placed into a machine called a “genetic analyzer,” which separates the DNA and presents it to a Criminalist through a software called “G-Mapper.” (7/25/2016 Tr. 85-86.)
A Criminalist IV performs the same tasks as a Criminalist II or III but additionally supervises other Criminalists and laboratory personnel. Criminalist, NCY.gov (Sept. 29, 2004), http:/www.nyc.gov/html/ocme/downloads/pdf/jobscriminalist.pdf.
The G-Mapper software translates the results of the genetic analysis into a visual that a Criminalist can analyze and “edit.” The DNA results appear as peaks in the visual, with each peak representing an allele. A Criminalist reviews the results of the genetic analysis and, if necessary, performs “edits” on the data. For instance, during the genetic analysis, a smaller peak (called a “stutter”) might appear in the visual before or after the “true” identifying peak, and the software may mistakenly label that peak as an allele number. The Criminalist, seeing the stutter, can “edit” the visual to remove the false label and restore the “true representation” of the DNA sample. (7/25/2016 Tr. 88-93).
After one Criminalist performs an analysis of the data in the G-Mapper, a second Criminalist (an “SDR reviewer”) performs an “independent analysis” of the same data, and either accepts or rejects the first Criminalist's edits. After the SDR Reviewer's assessment, all relevant data produced for the case is assigned to a reporting and interpreting Criminalist, who does a third “independent review” of all the data provided to them. That analyst reviews every individual paper in the file, including PDF printouts of the exact screen the first two Criminalists viewed on the G-Mapper and the edits the previous Criminalists may have made, and performs the third independent analysis of the original data and previous edits. After reviewing the data, the reporting and interpreting Criminalist interprets the sample for the first time, and if possible, assigns a DNA profile to a particular person. For all of the aforementioned procedures, OCME protocols demand that each step be reviewed and documented, and all reports, notations and records be kept. (7/25/2016 Tr. 93-96.)
In this case, Perez was the interpreting and reporting Criminalist for both the samples collected from CW and the buccal swab collected from Elliott Carter. (7/25/2016 Tr. 94-95, 124.) For the samples collected from CW, Perez testified that when she received the case file, she reviewed the G-Mapper results generated by the previous two analysts but “essentially [did] that work again,” making her own “independent conclusions” of which peaks should or should not be labeled. (7/25/2016 Tr. 95-96.) Then, Perez went through every DNA location, interpreted the results (for the first time), and finally assigned a DNA profile. (7/25/2016 Tr. 96, 120.) For the buccal swab collected from Carter, Perez again testified that she not only performed an independent analysis and interpretation of the data but also testified that she was the SDR reviewer. (7/25/2016 Tr. 124-26.) For the buccal swab, Perez again assigned a DNA profile. (7/25/2016 Tr. 127.) She compared that profile to the one generated from the samples taken from CW. The two matched. (7/25/2016 Tr. 128.) As Perez testified, the statistical probability of the profile appearing in two different people was one in 6.8 trillion. (7/25/2016 Tr. 133-34.)
At trial in the New York Supreme Court, Carter objected to the admission of OCME case files and the testimony of Jaheida Perez. Carter's counsel contended that under the New York case of People v. John, 27 N.Y.3d 294, 33 N.Y.S.3d 88 (2016), the DNA results were testimonial materials subject to the Confrontation Clause requirements of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), and that Perez could not give “surrogate testimony” as to the findings of the other Criminalists who analyzed the samples. (7/21/2016 Tr. 77; 7/25/2016 Tr. 101, 114, 122.) The court overruled the objections. (7/25/2016 Tr. 115, 123-24.)
ORDER
D. The Verdict
The jury found Carter guilty of first-degree rape. (7/25/2016 Tr. 355.) On September 16, 2016, Carter was sentenced to fifteen years in prison, followed by twenty years of post-release supervision. (9/16/2016 Tr. 34.)
E. Appeal
Carter appealed to the Appellate Division, First Department, on the grounds that CW's 911 call was improperly admitted under the excited utterance exception to the hearsay rule, and that the DNA evidence was improperly admitted in violation of Carter's Sixth Amendment right to confrontation. People v. Carter, 176 A.D.3d 552, 113 N.Y.S.3d 73 (1st Dep't 2019). The Appellate Division unanimously affirmed the judgment. Id. As to the Confrontation Clause issue, the Appellate Division concluded that rather than being “a conduit for the conclusions of others,” John, 27 N.Y.3d at 315, Perez showed her own “independent analysis on the raw data” in comparing the relevant DNA profiles. Id.
The New York Court of Appeals denied Carter's leave to appeal, People v. Carter, 34 N.Y.3d 1157, 120 N.Y.S. 3d 248 (2020), and Carter timely filed this petition for habeas corpus. The petition drops the excited utterance challenge and focuses solely on the alleged violation of Carter's Sixth Amendment right to confrontation.
Standard Of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) allows a state prisoner to petition for a writ of habeas corpus on the grounds that his continued custody violates federal law. 28 U.S.C. §2254(a). However, under AEDPA, habeas corpus “with respect to any claim that was adjudicated on the merits in state court proceedings” should not be granted unless the adjudication either:
(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.28 U.S.C. § 2254(d).
“Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons - both legal and factual - why state courts rejected a state prisoner's federal claims, and to give appropriate deference to that decision.” Wilson v. Sellers, __ U.S. __,, 138 S.Ct. 1188, 1191-92 (2018) (first quoting Hittson v. Chatman, 576 U.S. 1028, 1028, 135 S.Ct. 2126, 2126 (Mem) (2015) (Ginsburg, J., concurring in denial of certiorari), then citing Harrington v. Richter, 562 U.S. 86, 101-02, 131 S.Ct. 770, 785-86 (2011)).
A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character or nature, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519 (2000) (internal quotation marks omitted) . “A principle is ‘clearly established federal law' for § 2254(d)(1) purposes ‘only when it is embodied in a [Supreme Court] holding,' framed at the appropriate level of generality.” Washington v. Griffin, 876 F.3d 395, 403 (2d Cir. 2017) (first quoting Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 1173 (2010); then citing Nevada v. Jackson, 569 U.S. 505, 512, 133 S.Ct. 1990, 1994 (2013) (per curiam)).
By contrast, a “court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle ... but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850 (2002). This inquiry focuses not on whether the state court's application of clearly established federal law is merely incorrect or erroneous, but on whether it is objectively unreasonable. See id. “Under § 2254(d), a habeas court must determine what arguments or theories supported or, . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 102, 131 S.Ct. at 786.
AEDPA forecloses “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 567 U.S. 37, 38, 132 S.Ct. 2148, 2149 (2012) (quoting Renico v. Lett, 559 U.S. 766, 779, 130 S.Ct. 1855, 1866 (2010)). “A state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939 (2007).
Even if a trial-court error meets the standards required by AEDPA, habeas relief is not warranted unless the error “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 2328 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a ‘reasonable possibility' that trial error contributed to the verdict”) (quoting Brecht, 507 U.S. at 637, 113 S.Ct. at 1721); Butler v. Graham, No. 07-CV-6586, 2008 WL 2388740, at * 6 (S.D.N.Y. June 12, 2008) (recognizing and applying the “substantial and injurious effect” standard).
The petitioner in a habeas case bears both “the burden of proving by a preponderance of the evidence that his constitutional rights have been violated,” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997), and “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Where a petitioner proceeds pro se (i.e., without legal representation), the Court must construe his or her submissions liberally and interpret them “to raise the strongest arguments that they suggest.” Kirkland v. Cablevision Systems, 760 F.3d 223, 224 (2d Cir. 2014) (internal quotation marks omitted). This does not, however, excuse a petitioner “from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotation marks omitted).
AEDPA imposes several threshold requirements on habeas petitioners. First, AEDPA requires that petitioners first properly exhaust their claims in state court. 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005). A petitioner need not have invoked every possible avenue of state court review, but instead must “‘give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.'” Galdamez, 394 F.3d at 73 (emphasis in original) (quoting O'Sullivan, 526 U.S. at 845, 119 S.Ct. at 1732). A “complete round” requires presenting the federal claim to the highest court of the state, in this case the New York Court of Appeals. Galdamez, 394 F.3d at 73-74. When state court remedies are no longer available, the claim is “technically exhausted.” Id. at 74.
The second threshold requirement is that “the federal court must assess whether the petitioner ‘properly exhausted those [state] remedies, i.e., whether [petitioner] has fairly presented his [or her] claims to the state courts,' such that the state court had a fair opportunity to act.” Id. at 73 (alteration and emphasis in original) (internal citation omitted) (quoting O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734). Under “the concept of procedural default,” a petitioner cannot claim to have met the exhaustion requirement “by dint of no longer possessing the right under the law of the State to raise, by any available procedure, the question presented, if at some point the petitioner had that right but failed to exercise it.” Galdamez, 394 F.3d at 74 (internal quotation marks and citation omitted) (citing O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734).
Discussion
A. Carter's Claims Are Properly Exhausted
The People did not challenge Carter's petition on procedural grounds. Carter appealed his conviction to the Appellate Division and then to the New York Court of Appeals, invoking “one complete round of the State's established appellate review process.” See Galdamez, 394 F.3d at 74. Additionally, Carter presented the issue implicated here - namely the alleged violation of his confrontation rights - in both appeals. Thus, he has “fairly presented” his claims in the state appellate process and is entitled to federal habeas review. See id. at 73. Finally, Carter timely filed his petition for habeas corpus.
B. Established Confrontation Clause Law
In his petition, Carter argues that his imprisonment violates the Sixth Amendment, because the trial court “improperly admitted the DNA results in violation of the Confrontation Clause.” (Pet. 6.) Pursuant to the Confrontation Clause, a criminal defendant is afforded “the right ... to be confronted with the witnesses against him.” U.S. Const., amend. VI. The analysis below first examines relevant Supreme Court precedent, particularly in the context of forensic evidence, including DNA. The Court then discusses whether the Appellate Division, relying on the New York case of People v. John, properly interpreted and applied federal law in this case.
“Pet.” refers to Carter's petition for habeas corpus, filed March 29, 2021, in the Southern District of New York's Pro Se Office. Dkt. 1.
1. Supreme Court Precedents
In Crawford v. Washington, the United States Supreme Court held that the Confrontation Clause prohibits introduction of out-of-court testimonial statements unless the witness is unavailable, and the defendant has had prior opportunity to cross-examine the witness. 541 U.S. 36, 124 S.Ct. 1354 (2004). While the Court did not attempt to conclusively define the term “testimonial,” it offered several examples of categories of evidence that would fit the description, including formalized material like affidavits, which represent the “functional equivalent” of ex parte testimony, and “statements . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., 541 U.S. at 51-52, 124 S.Ct. at 1364.
The holding in Crawford represented a “fundamentally new interpretation of the confrontation right,” but the Court's decision to leave open the meaning of “testimonial” led to a “steady stream of new cases.” Williams v. Illinois, 567 U.S. 50, 64-65, 132 S.Ct. 2221, 2232 (2012) (plurality opinion). In later cases, the Court established that to determine what evidence should be deemed “testimonial” (and thus subject to the requirements of the Confrontation Clause), courts must look to whether the “primary purpose” of the evidence was to “creat[e] an out-of-court substitute for trial testimony.” Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 1155 (2011)); see also Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74 (2006) (“[Statements] are testimonial when the circumstances objectively indicate that ... the primary purpose ... is to establish or prove past events potentially relevant to later criminal prosecution”). “In identifying the primary purpose of an out-of-court statement, [the Court] appl[ies] an objective test ... look[ing] for the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.” Williams, 567 U.S. at 84, 132 S.Ct. at 2243 (citing Bryant, 562 U.S. at 360, 131 S.Ct. at 1156).
In two cases relied upon by Carter, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009) and Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705 (2011), the Supreme Court addressed the confrontation requirements in the context of laboratory tests. In Melendez-Diaz, the Court held that a trial court incorrectly admitted notarized certificates certifying that materials seized from defendants were cocaine where the defendant did not have an opportunity to cross-examine the forensic analysts who prepared the certificates. 557 U.S. at 310-11, 129 S.Ct. at 2532. In arriving at this conclusion, the Court observed that the certificates were “quite plainly” affidavits with the “sole purpose” of providing evidence. Id.
In Bullcoming, the Court similarly held that a lab report of a blood-alcohol test could not be introduced through the testimony of an analyst acting as a “surrogate” witness, who neither performed nor had an “independent opinion” about the actual test. 564 U.S. at 661-63, 131 S.Ct. at 2715-16. The Court noted that although the blood-alcohol report was not sworn to and notarized as in Melendez-Diaz, the “formalities attending” the certificate, namely that it was a prepared certificate signed by the testing analyst in preparation of a criminal proceeding, were “more than adequate to qualify [the analyst's] assertions as testimonial.” 564 U.S. at 665, 131 S.Ct. at 2717.
As to DNA testing, however, the Court changed course. In Williams v. Illinois, the Court held that a state DNA expert could testify to the comparison between a police DNA sample and a sample generated by an independent lab - even though none of the independent lab's analysts were made available to testify. 567 U.S. at 57-58, 132 S.Ct. at 2228. Yet the Court could not come to a majority as to why.
Justice Alito, writing for the plurality, offered two alternate reasons why the testimony would not run afoul of the Court's Confrontation Clause jurisprudence: first, any assumptions of fact made by the expert witness as to the veracity of the independent report were not themselves admitted for their truth, but rather “as a mere premise of the prosecutor's question, and [the witness] simply assumed that premise to be true when she gave her answer indicating that there was a match between the two DNA profiles.” Id., 567 U.S. at 72, 132 S.Ct. at 2236. Second, even if the independent report were admitted for its truth, there would be no violation of the Confrontation Clause because “[t]he 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.” Id., 567 U.S. at 58, 132 S.Ct. at 2228.
Justice Alito cited additional significant factors in deciding that the relevant testimony was not for the “primary purpose of accusing a targeted individual,” including that “in many labs, numerous technicians work on each DNA profile. ... When the work of a lab is divided up in such a way, it is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures.” Id., 567 U.S. at 84-85, 132 S.Ct. at 2243-44. Justice Alito also reasoned that “knowledge that defects in a DNA profile may often be detected from the profile itself provides a further safeguard,” and that “given the complexity of the DNA molecule, it is inconceivable that shoddy lab work would somehow produce a DNA profile that just so happened to have the precise genetic makeup of petitioner, who just so happened to be picked out of a lineup by the victim.” Id., 567 U.S. at 85-86, 132 S.Ct. at 2244. “In short,” Justice Alito concluded, “the use at trial of a DNA report prepared by a modern, accredited laboratory ‘bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.'” Id., 567 U.S. at 86, 132 S.Ct. at 2244 (quoting Bryant, 562 U.S. at 379, 131 S.Ct. at 1167 (Thomas, J., concurring)). Justice Thomas, concurring, offered another reason why the DNA results were not testimonial - the report lacked the solemn formalities of an affidavit, as it was “neither a sworn nor a certified declaration of fact.” Williams, 567 U.S. at 111, 132 S.Ct. at 2260.
While the various theories espoused in the Williams opinions may have, as Justice Kagan commented in dissent, “left a significant confusion in their wake,” 567 U.S. at 141, 132 S.Ct. at 2277, one thing is clear: “the Supreme Court has never held that the Confrontation Clause requires an opportunity to cross examine each lab analyst involved in the process of generating a DNA profile and comparing it with another, nor has it held that uncertified, unsworn notations of the sort at issue here are testimonial.” Washington v. Griffin, 876 F.3d 395, 407 (2d Cir. 2017).
2. People v. John
In its ruling on the confrontation issue, the Appellate Division relied on the New York case of People v. John, 27 N.Y.3d 294, 33 N.Y.S.3d 88 (2016). People v. Carter, 176 A.D.3d 552, 113 N.Y.S.3d 73 (1st Dep't 2019).
The Appellate Division's analysis of the confrontation issue was terse: “Finally, we find the testimony of an analyst that linked defendant's DNA to DNA found on the victim did not violate defendant's right of confrontation. The testimony of the analyst demonstrated her own ‘independent analysis on the raw data' to make the comparison, and the analysis was not merely ‘a conduit for the conclusions of others.'” Carter, 176 A.D.3d at 552, 113 N.Y.S.3d at 73 (quoting John, 27 N.Y.3d at 315, 33 N.Y.S.3d at 102).
In John, the New York Court of Appeals applied the Supreme Court's primary purpose test - as interpreted in the New York case of People v. Pealer, 20 N.Y.3d 447, 453, 962 N.Y.S.2d 592 (2013) - and found that the “generation of a DNA profile in [a] pending criminal action was testimonial,” and thus that “at least one analyst with the requisite personal knowledge must testify.” John, 27 N.Y.3d at 313, 33 N.Y.S.3d at 100. In doing so, the John court distinguished previous New York cases - People v Meekins, 10 N.Y.3d 136, 158-59, 855 N.Y.S.3d 20, 35-36 (2008), and People v Brown, 13 N.Y.3d 332, 340, 890 N.Y.S.2d 415, 419-20 (2009) - which both held that raw DNA data generated from rape kits were not testimonial when made using neutral testing procedures (not in preparation for trial) and when they were “shepherded into evidence by a testifying expert whose subsequent independent analysis of that raw data provided the assurance that the DNA profile generated was accurate.” John, 27 N.Y.3d at 309-10; 33 N.Y.S.3d at 98.
The Court of Appeals found that the analyst in John did not satisfy that requirement, as she merely “agreed with the results [that non-testifying analysts] obtained in the actual performance of the testing,” constituting impermissible “surrogate testimony to prove a required fact.” Id., 27 N.Y.3d at 309, 33 N.Y.S.3d at 98. However, the Court of Appeals rejected the idea that every analyst involved in testing would need to testify. Id., 27 N.Y.3d at 312-13, 33 N.Y.S.3d at 100-01. Rather, John articulated new parameters: “at least one analyst with the requisite personal knowledge” who either “witnessed, performed or supervised the generation of defendant's DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, must be available to testify.” Id., 27 N.Y.3d at 313-15, 33 N.Y.S.3d at 100-02.
Here, applying the standard set out in John, the Appellate Division concluded that Perez's testimony - unlike that of the analyst in John - satisfied the Confrontation Clause requirements, as Perez performed an “independent analysis on the raw data,” as opposed to merely serving as a “conduit for the conclusions of others.” Carter, 176 A.D.3d at 552, 113 N.Y.S.3d at 73 (quoting John, 27 N.Y.3d at 315, 33 N.Y.S.3d at 102).
3. The Carter Court Reasonably Applied Clearly-Established Federal Law
The Appellate Division's reasoning relied exclusively on language from John. Accordingly, in reviewing whether the Appellate Division's decision was contrary to, or an unreasonable application of, clearly established law, this Court also considers whether John correctly interpreted and applied Supreme Court precedent.
The first relevant component of John is the determination that the DNA profile evidence was testimonial, thus implicating the Confrontation Clause. The John court applied the primary purpose test and relied on the Supreme Court cases of Bullcoming and Melendez-Diaz to conclude that “the generation of the DNA profile in this pending criminal action was testimonial.” John, 27 N.Y.3d at 313, 33 N.Y.S.3d at 100. That conclusion is entirely consistent with Williams and other Supreme Court precedent. While the Williams plurality held that the introduction of a DNA profile did not implicate the Confrontation Clause in that particular case, several factors nudged the plurality in that direction. Those included the fact that the Williams profile was produced by an independent lab, that the state witness comparing the profiles was not offering testimony for “the truth of the matter asserted” in those profiles, and that the report in that case was sought for “the purpose of finding a rapist who was on the loose,” rather than for “the purpose of obtaining evidence to be used” against the defendant. Williams v. Illinois, 567 U.S. at 57-58, 132 S.Ct. at 2228. None of those facts were true in John, or in the present case. In John, as here, the DNA profiles were generated by OCME for use in a pending criminal proceeding, and the testifying analyst was testifying as much to the generation of the profiles as to the matches between them. Additionally, the Williams ruling did not command a majority as to any of its aspects, with the plurality opinion indeed reflecting a minority of opinions on the Court. See Williams, 567 U.S. at 120, 132 S.Ct. at 2265 (Kagan, J., dissenting) (“in all except its disposition, [the plurality] opinion is a dissent”).
Accordingly, it was entirely reasonable for the John court to conclude that “[u]nder [the] circumstances, the laboratory reports as to the DNA profile generated from the evidence submitted to the laboratory by the police in a pending criminal case were testimonial,” as the facts in John presented themselves as “indistinguishable from Bullcoming.” John, 27 N.Y.3d at 308, 33 N.Y.S.3d at 97.
The Appellate Division in Carter reasonably relied on John in that same regard. In relying on John, the Appellate Division deemed the DNA results testimonial and subject to the Confrontation Clause requirements. But obviously, a finding to the contrary would not be helpful to Carter. Had the Appellate Division held that such results were, like those in Williams, not testimonial, the right to confrontation would not have attached and the analysis could end here.
The second - and more salient - component of John applied by the Appellate Division was the John court's determination that notwithstanding the Confrontation Clause, “nothing ... supports the conclusion that the analysts involved in the preliminary [DNA] testing stages, specifically, the extraction, quantitation or amplification stages, are necessary witnesses.” John, 27 N.Y.3d at 313, 33 N.Y.S.3d at 101. Rather, all that is necessary is the testimony of “a single analyst” with “requisite personal knowledge” of the profile generation. Id.
That too is a reasonable application of federal law. As mentioned above, “the Supreme Court has never held that the Confrontation Clause requires an opportunity to cross examine each lab analyst involved in the process of generating a DNA profile and comparing it with another.” Washington v. Griffin, 876 F.3d at 407. Indeed, several courts in this Circuit have rejected such a contention. In United States v. Boyd, a case decided after Melendez-Diaz, but before Bullcoming, Judge Rakoff found that testimony by one DNA analyst who performs only the “final, critical stage” of the DNA analysis is sufficient for confrontation purposes. 686 F.Supp.2d 382, 386 (S.D.N.Y.), aff'd, 401 Fed.Appx. 565 (2d Cir. 2010). Boyd was convicted of armed bank robbery partly through DNA evidence, which was introduced through a Criminalist “who initially prepared the evidence for testing and who personally handled the final step of a four-step process in DNA analysis, but who did not perform the other three steps.” Id. at 384. Consistent with Melendez-Diaz, the Court rejected Boyd's motion for a new trial, holding that “where the defendant had ample opportunity to confront the Government witness who undertook the final, critical stage of the DNA analysis, and where that witness was personally familiar with each of the prior steps, testified that the analysis included safeguards to verify that errors would not result in a false positive, and demonstrated that the prior steps were essentially mechanical in nature, the Confrontation Clause is satisfied.” Id. at 386.
Decisions after Bullcoming are to the same effect. See, e.g., Abuziyad v. Goyea, No. 17 CV 552, 2019 WL 8884051, at *16 (E.D.N.Y. Sept. 20, 2019), R & R adopted, No. 17-CV-552, 2020 WL 2617887 (E.D.N.Y. May 25, 2020) (“The OCME analyst who testified ... had completed the final, crucial step of the DNA analysis process: interpreting the DNA profiles to match petitioner's DNA to the DNA found on the ski mask. . She was familiar with the steps other criminalists in her office took in order to prepare the DNA profiles she received, and she explained to the jury what these steps were.”) (emphasis added); Beckham v. Miller, 366 F.Supp.3d 379, 385 (E.D.N.Y. 2019) (“By having the opportunity to cross-examine the criminalist who performed the final step of linking Beckham's DNA to the crime scene DNA evidence - the only accusatory step of the entire testing process and the step most helpful to criminal prosecution - Beckham's right to confrontation was satisfied.”) (emphasis added).
Carter attempts to equate Perez to the analyst in John, and asserts that what the John court did find was “the same scenario that occurred in Bullcoming.” (Pet. Mem. 12 (quoting John, 27 N.Y.3d at 304, 33 N.Y.S.3d 88).) After emphasizing that the DNA results were testimonial (a finding not challenged by the government), see Pet. Mem. 89, Carter argues that Perez “was merely a conduit for the conclusions of others,” and that she “never tested” the evidence. (Pet Mem. 12 (quoting John, 27 N.Y.3d at 304, 33 N.Y.S.3d at 94).) That argument ignores the facts of this case. Perez “essentially [did the previous analyst's] work again,” coming to “independent conclusions” about the generation of the profile. (7/25/2016 Tr. 95-96.) These facts represent “a much more significant connection to the testing than that of the ‘surrogate' analyst testifying in Bullcoming,” and an ample opportunity for Carter to “cross-examine the criminalist who performed the final step of linking” the DNA. Beckham, 366 F.Supp.3d at 385.
“Pet. Mem.” refers to Carter's Supporting Memorandum Of Law In Reply To Opposition For A Writ Of Habeas Corpus, filed Nov. 1, 2021. (Dkt 17.)
Courts in this Circuit, especially since Williams v. Illinois, have firmly refused to grant habeas relief in cases similar to this one. In Washington v. Griffin, a defendant was convicted of multiple counts of burglary and assault and counts of first-degree criminal sexual act and sexual abuse. 876 F.3d at 397. At trial, DNA evidence was introduced through a Criminalist who did not personally do all of the testing, but who “personally reviewed the raw data resulting from all the DNA sampling, reaching her own conclusions based on that data and comparing the DNA profiles developed from each of the crime scenes and from the swab.” Id. at 401. The Appellate Division, Second Department, denied Washington's appeal on the grounds that the DNA evidence was not testimonial. People v. Washington, 108 A.D.3d 576, 576-78, 968 N.Y.S.2d 184, 186-87 (2d Dep't 2013).
Although the Second Circuit disagreed with the Appellate Division's conclusion that the evidence was non-testimonial because “standing alone, [it] shed no light on the issue of the defendant's guilt”, Washington v. Griffin, 876 F.3d at 407 n.10 (quoting People v. Washington, 108 A.D.3d at 577-78, 968 N.Y.S.2d at 187 (2d Dep't 2013)), the panel still affirmed the district court's denial of habeas corpus. Id. at 397. “Against [the] backdrop” of Williams and prior Supreme Court jurisprudence, the court found it could not find the high bar of the AEDPA standard was met. Id. at 407. “Assuming arguendo that the case file here was admitted for its truth,” the Second Circuit noted, “the Supreme Court has never held that the Confrontation Clause requires an opportunity to cross examine each lab analyst involved in the process of generating a DNA profile and comparing it with another.” Id. Although refusing to take a stand on whether DNA evidence is, in fact, testimonial, the Second Circuit ultimately agreed with the district court's conclusion that “‘[c]onsidering the lack of clarity in the Supreme Court's Confrontation Clause jurisprudence, and in light of the factual similarities between Williams and [Washington],' the Appellate Division's decision [in Washington] cannot be deemed an unreasonable application of clearly established Supreme Court precedent.” Id. at 410 (quoting Washington v. Griffin, 142 F.Supp.3d 291, 297 (E.D.N.Y. 2015)).
Several district courts have agreed, denying habeas petitions on similar facts for reasons quite similar to those in Washington. See, e.g., Abuziyad, 2019 WL 8884051 at *16 (“in accordance with established Supreme Court precedent ... and other cases ... within the Second Circuit which continue to apply the same principles, the Court agrees ... that the testimony of [a Criminalist] and the admission of the two DNA profile reports into evidence did not violate petitioner's right to confront the witnesses against him”); Carrasco v. Miller, No. 17-CV-7434, 2020 WL 9256469, at *25 (S.D.N.Y. Nov. 13, 2020), R & R adopted, No. 17 CIV. 7434, 2021 WL 1040473 (S.D.N.Y. March 18, 2021) (“Because ‘the Supreme Court has not squarely addressed the sufficiency of an analyst's testimony under the specific circumstances here - where the [testifying] analyst compared and interpreted the DNA profiles but did not conduct [all of] the underlying tests,' . this Court cannot conclude that petitioner's right to confrontation was violated.”) (quoting Beckham, 366 F.Supp.3d at 386); Santana v. Capra, 284 F.Supp.3d 525, 545 (S.D.N.Y. 2018) (“as the Second Circuit Court of Appeals recently concluded [in Washington v. Griffin], the uncertainty left by Williams, Bullcoming, and Melendez-Diaz, reveals that there is no clearly established law from the Supreme Court holding that [a DNA expert]'s forensic expert testimony violates the Confrontation Clause”).
Given the similarity of the instant case to those cited, it cannot be said that the Appellate Division came to a conclusion “diametrically different, opposite in character or nature, or mutually opposed” to clearly established law, Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. at 1519, or that its application of the law to this case was objectively unreasonable. See Bell v. Cone, 535 U.S. at 694, 122 S.Ct. at 1850. Accordingly, Carter fails to meet his “burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d at 415.
C. Harmless Error
Even had the Appellate Division erred in its holding, the petition could not be granted unless the alleged error at trial “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. at 637-38, 113 S.Ct. at1722 (quoting Kotteakos v. United States, 328 U.S. at 776, 66 S.Ct. at 1253). Factors in determining harmless error in a Confrontation Clause violation can include “‘the importance of the witness testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and ... the overall strength of the prosecution's case.'” Cotto v. Herbert, 331 F.3d 217, 254 (2d Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438 (1986).
Nearly all of the Van Arsdall factors weigh against Carter. Aside from CW's own testimony of the incident (7/22/2016 Tr. 82-88), the jury heard testimony from Officer Chen that CW showed him what appeared to be semen from under her skirt (7/25/2016 Tr. 164), and from Nurse Schnoor that she took samples of semen and documented injuries evidencing sexual activity. (7/25/2016 Tr. 22-34, 48-49). Additionally, video of the incident was shown at trial. When the prosecutor replayed the video on summation, he described how the video showed CW being “thrown against the wall,” and how Carter was “holding [her] by her hair,” then dropped CW to the floor and “swept [CW] right into” the closet. (7/25/2016 Tr. 297). Perez's testimony implicating Carter was cumulative; ample evidence corroborated CW's testimony (i.e. that Carter had sex with CW); and the prosecutor's case was generally very strong. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.
Finally, and as the Appellate Division noted, Carter, 176 A.D.3d at 552, 113 N.Y.S.3d at 73, Carter's theory of the case always rested on consent. Indeed, Carter's counsel all but conceded that sex happened in some form. On cross-examination of CW, defense counsel asked three times whether she was paid and asked whether she knew that her services were advertised on Backpage.com. (7/22/2016 Tr. 129, 138). After all the evidence was presented, counsel moved to dismiss on the basis of consent, arguing that the Government had failed to make out a prima facie case that sex had not been consensual. (7/25/2016 Tr. 244-45.) In his closing statement, defense counsel emphasized to the jury that expert testimony on CW's injuries and the DNA were consistent with consensual sex. (7/25/2016 Tr. 258-59, 265 (“Once again this is consistent with Miss Wang being on her back; consistent with more happening in that room than she told you about; consistent with the positions, consistent with consent.”)) Finally, counsel emphasized that CW was likely not truly employed as a masseuse. (7/25/2016 Tr. 260-61.) With consent being Carter's line of defense, matching Carter's DNA to the samples found on CW was of trivial importance.
See also Carter Affidavit In Support Of Motion To Dismiss, dated October 23, 2015, Respondent's State Court Record at 26 (filed under seal, August 2, 2021) (Carter admitting that he had sex with CW).
As noted above, Carter has not met the AEDPA standards allowing relief only where the trial court's decision was “contrary to,” or an “unreasonable application of,” established federal law. However, even if the trial court had erred to such an extent, this Court finds that in light of the overwhelming evidence of sex in this case, improper admittance of the DNA evidence would not have had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637-38, 113 S.Ct. at 1722 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253).
Conclusion
For the foregoing reasons I recommend that Carter's petition for habeas corpus be DENIED.
Deadline For Filing Objections
Pursuant to 28 U.S.C. 636(b)(1) and Rules 72, 6(a) and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Lorna G. Schofield, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.