Aguilar v. Com.

Citations: 699 S.E.2d 215; 280 Va. 322Docket: 082564

Court: Supreme Court of Virginia; September 16, 2010; Virginia; State Supreme Court

Original Court Document: View Document

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The Virginia Supreme Court, with Justice Cynthia D. Kinser writing, addressed the remand from the U.S. Supreme Court regarding Miguel Angel Aguilar's appeal. The Supreme Court vacated the original judgment, directing further consideration in light of the Melendez-Diaz v. Massachusetts decision, which pertains to the Confrontation Clause rights. The central issue was whether the Commonwealth’s failure to call two forensic scientists, who played preliminary roles in the DNA analysis but did not author the certificates of analysis, violated Aguilar's rights. The court concluded that it did not, as neither scientist provided testimony against Aguilar.

Aguilar had been convicted of multiple offenses, including robbery and rape, following an incident involving Elizabeth Arnez, a bank teller. During the crime, Arnez was threatened and sexually assaulted. Evidence was collected from her by a sexual assault nurse examiner, including swabs and clothing, which were then sent for DNA analysis. Forensic scientist Nathan Himes testified about the DNA analysis results, which included samples from Arnez and Aguilar. Himes supervised preliminary testing performed by Catherine Columbo, who found no spermatozoa in her initial screenings, while Himes identified spermatozoa in the samples from Arnez's thighs/external genitalia. The court focused on whether the involvement of Columbo required her testimony to uphold Aguilar's confrontation rights, ultimately determining that the lack of her testimony did not constitute a violation since she did not author the certificates used in evidence.

A single DNA type, foreign to Arnez, was obtained from seminal fluid but was deemed unsuitable for comparison. After identifying spermatozoa, Himes split the sample into two: one containing spermatozoa and the other, a nonsperm fraction, which could include various body fluids. Himes used a robotic extraction system operated by Melanie Morris, a PCR/STR technician, to process the samples for DNA analysis. Morris amplified the DNA, which was then analyzed by Himes on a larger gel to determine DNA fragments. Himes successfully developed a DNA profile from the nonsperm fraction but found no amplification results from the sperm fraction. He also obtained a DNA profile from the victim’s oral buccal mucosa.

Himes reported that a DNA profile foreign to E. Arnez was identified from the thighs/external genitalia sample in a certificate of analysis dated January 25, 2007, which he signed. He compared this foreign DNA profile to those of Aguilar and his brother, concluding that Aguilar could not be eliminated as a contributor, while his brother could be eliminated. Statistically, the likelihood of the foreign DNA profile originating from Arnez and Aguilar was significantly higher than from Arnez and an unknown individual in various populations, with ratios of 1.1 quadrillion for Caucasians, 76 quadrillion for Blacks, and 340 trillion for Hispanics. Himes documented these findings in two additional certificates of analysis dated April 16, 2007, and December 10, 2007.

On cross-examination, Himes acknowledged the collaborative nature of forensic analysis, relying on the accuracy of his team’s work. Aguilar objected to the admission of the certificates, citing reliance on the contributions of other forensic scientists.

Aguilar contended that the certificates of analysis from Columbo and Morris were testimonial in nature and that his inability to cross-examine them violated his rights under the Confrontation Clause. The circuit court rejected this objection, leading to Aguilar's conviction on all charges. On appeal, he reiterated that the admission of these certificates without live testimony infringed upon his confrontation rights. However, the Court of Appeals upheld the circuit court's decision, referencing the precedent set in *Magruder v. Commonwealth*. Aguilar's subsequent petition to the Supreme Court resulted in the granting of a writ of certiorari, which vacated the lower court's judgment and remanded the case for reconsideration in light of *Melendez-Diaz*.

On remand, the court focused on whether the rulings in *Melendez-Diaz* required Columbo and Morris to testify to safeguard Aguilar's confrontation rights. The Supreme Court previously established in *Crawford v. Washington* that the Confrontation Clause applies to witnesses against the accused and defined testimonial statements as solemn declarations made to establish facts. Aguilar's challenge was limited to the certificates of analysis, not other testimonies, directing the analysis specifically to their admissibility under the Confrontation Clause without the testimony of Columbo and Morris.

The court noted that testimonial statements from a witness who does not testify at trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. The definitions of testimonial statements were further clarified in *Davis v. Washington*, distinguishing between non-testimonial statements, like a 911 call, and testimonial statements that arise from formal interrogations, which serve as substitutes for live testimony.

Statements made during police interrogation are classified as nontestimonial if the primary purpose is to assist in an ongoing emergency; they are considered testimonial when the purpose is to establish facts for potential prosecution. In the case of Melendez-Diaz, the Supreme Court examined whether forensic analysis affidavits were testimonial under the Sixth Amendment, ruling that these documents, despite being termed 'certificates' under Massachusetts law, functioned as affidavits intended to establish facts—specifically the composition and weight of substances seized by police. As such, they were equivalent to live testimony. The Court emphasized that the affidavits created an expectation that they would be used in a future trial, thereby categorizing the analysts as 'witnesses.' Without evidence that the analysts were unavailable for trial or had been previously cross-examined, the defendant had the right to confront the analysts in court. The ruling clarified that while the prosecution must demonstrate the chain of custody for evidence, not every person involved in the chain needs to testify, indicating that such gaps affect the evidence's weight rather than its admissibility.

The prosecution has the discretion to determine which steps in the chain of custody necessitate evidence, and any testimony introduced must be live if the defendant objects. Certificates of analysis can be considered nontestimonial records if prepared during routine maintenance. The admission of these certificates without the testimony of analysts Columbo and Morris is evaluated regarding Aguilar's confrontation rights. The Supreme Court in Melendez-Diaz deemed certificates of analysis as testimonial because they serve to establish facts, akin to live testimony. In this case, the certificates primarily reflected Himes' conclusions about DNA profiles, lacking any substantive input from Columbo, who did not identify spermatozoa in the relevant samples, and thus did not provide testimonial evidence against Aguilar. Himes’ testimony indicated that Columbo's preliminary work had no impact on the DNA analysis. For Morris, while she performed critical tasks in the DNA extraction process, the certificates did not include any records of her findings or conclusions, again making them non-testimonial. The results reported in the certificates were Himes' assertions, not declarations from Columbo or Morris. Therefore, the absence of their testimony did not infringe upon Aguilar's confrontation rights, although it may influence the evidentiary weight attributed to Himes' testimony.

Nothing from Morris was presented in a way that functionally mimicked live testimony, meaning it did not fulfill the role of a witness during direct examination. In previous cases, such as Melendez-Diaz and United States v. Turner, it was established that forensic reports lacking sworn testimony do not equate to live witness testimony. The court noted that the defendant's confrontation rights were upheld when lab technicians did not testify, as seen in Bradberry v. State.

Himes, who supervised both Columbo and Morris, was intimately involved in the DNA analysis and was the sole witness able to discuss the accuracy of the DNA results and the laboratory's procedures. Unlike Melendez-Diaz, where the defendant could not confront any witnesses regarding the analysis certificates, Aguilar was able to confront Himes, who determined that Aguilar could not be excluded as a contributor to the DNA profile.

Aguilar argued that his right to confront all forensic scientists involved was violated due to Himes' reliance on Columbo and Morris. However, Himes did not rely on Columbo's work, as he conducted his own analysis. The extent of reliance on Morris’ work did not invalidate Aguilar’s Confrontation Clause challenge, as the Sixth Amendment does not require that the testifying expert perform all laboratory work personally. The admission of certificates of analysis without Morris' testimony did not breach Aguilar's rights.

The case did not involve 'surrogate forensic testimony,' where a witness recounts another analyst's findings. Himes provided genuine expert testimony rather than merely repeating out-of-court statements. Aguilar referenced Roberts v. United States, a pre-Melendez-Diaz case related to DNA analysis, which highlighted different roles within the forensic process, but this case did not affect the court's conclusions regarding Aguilar's rights.

The testifying witness in this case was not the original examiner but instead reviewed the original examiner's report and information, forming his own conclusions. The court determined that the conclusions of the serologist, PCR/STR technician, and original examiner were all considered testimonial under the Crawford ruling. Consequently, the defendant had the right to confront those witnesses if their conclusions were used as substantive evidence against him. Unlike in Roberts, where the testifying examiner did not conduct the initial DNA analysis, the current case involved Himes, who performed all DNA profile development and comparisons. Aguilar's challenge focused solely on the admissibility of certificates of analysis, which did not contain testimonial statements from Columbo or Morris. The court noted that the Roberts decision hinged on the testifying examiner referencing the original examiner's conclusions. Ultimately, the court concluded that admitting the certificates of analysis without testimony from Columbo or Morris did not infringe on Aguilar's Confrontation Clause rights, aligning with rulings from other jurisdictions regarding the admissibility of such certificates post-Melendez-Diaz. The judgment of the Court of Appeals was affirmed.