State v. Gomez

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0339-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 08-0318
JOSEPH WESLEY GOMEZ, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2006-166549-001 DT
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Gary E. Donahoe, Judge

AFFIRMED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
Filed Oct. 29, 2009

AFFIRMED IN PART, VACATED IN PART
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Julie A. Done, Assistant Attorney General
Attorneys for State of Arizona

BRUCE F. PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Frances J. Gray, Deputy Legal Advocate
Attorneys for Joseph Wesley Gomez
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 The issue before us is whether the Confrontation

Clause of the Sixth Amendment to the United States Constitution
is violated when a testifying expert offers an opinion on the

similarity of DNA profiles prepared by technicians who did not

testify. We conclude that the expert’s testimony did not

contravene the Confrontation Clause.

I.

¶2 In 2006, Joseph Wesley Gomez was arrested and charged

with crimes related to a home invasion. Police collected items

from the crime scene and submitted them, along with a blood

sample taken from Gomez, to a laboratory. The laboratory

analyzed DNA from the items and compared the results with the

DNA from the blood sample.

¶3 In performing DNA testing and analysis, the laboratory

used an “assembly line” method that involved seven steps.

During the first six steps of the process, technicians isolate

and amplify the DNA and generate profiles. The technicians do

not interpret data or draw conclusions during these first six

steps, in which machines are used for every step except the

initial screening of submitted items for DNA.1 Various

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The evidence is screened initially by a technician for the
presence of DNA. If DNA is found, it is extracted from the
evidence and a machine measures its quantity. Copies of
specific regions of the DNA are then machine generated.
Machines then separate the DNA so that the alleles may be
examined and determine which alleles are present. A software
program processes that data and generates DNA profiles, which
list the number of alleles present at certain spots within the
genetic code. Finally, an analyst examines the generated
profiles and compares them to known profiles.

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technicians involved in the laboratory processes did not testify

at Gomez’s trial.

¶4 The State instead called a single witness about the

DNA testing. That witness, a senior forensic analyst and

supervisor at the laboratory, testified in detail about the

laboratory’s operating procedures, standards, and safeguards.

Although the analyst had not witnessed all of the steps in the

process, she had checked the technicians’ records for any

deviations from the laboratory’s protocols. The analyst had

performed the initial evidence screening and DNA extraction on

most of the items, and she testified about the chain of custody

for all items. For each sample, the analyst personally

performed the final step in the process, interpretation and

comparison. This step required her to compare the DNA profiles

generated in the laboratory, and it was the only step involving

human analysis.

¶5 The analyst testified that several profiles derived

from evidence at the crime scene “matched” the profile obtained

from Gomez’s blood sample.2 The data from the testing process

were not introduced into evidence as exhibits.

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The analyst testified that the odds of finding a DNA match
from someone other than Gomez for the DNA on each piece of
evidence from the crime scene ranged from one in thirteen
thousand to one in 1.2 sextillion.

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¶6 Gomez was convicted of the charged felonies. The

court of appeals affirmed, rejecting Gomez’s argument that the

expert’s testimony violated the Confrontation Clause. State v.

Gomez, 1 CA-CR 08-0318 (App. Oct. 29, 2009) (mem. decision).

¶7 We granted review because the application of the

Confrontation Clause to expert testimony about DNA profiles is

an issue of statewide importance likely to recur. We have

jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24 (2003).

II.

¶8 The Sixth Amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend.

VI. The “primary object” of the Confrontation Clause is

“testimonial hearsay.” Crawford v. Washington, 541 U.S. 36, 53

(2004). Crawford declined to establish a precise definition of

“testimonial,” but gave examples such as affidavits, prior

testimony, depositions, and items contained in “formalized”

materials. Id. at 51-52.

¶9 In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527,

2532 (2009), the Supreme Court held that expert affidavits

containing the results of forensic tests prepared for purposes

of trial were testimonial hearsay. In Melendez-Diaz, analysts

tested a substance, found it to be cocaine, and signed

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affidavits so affirming. Id. at 2531. The Court found that the

defendant’s confrontation rights were violated when the State

used the affidavits to prove that the tested substance was

cocaine without presenting any of the analysts for cross-

examination. See id. at 2532.

III.

¶10 Gomez contends that because the laboratory technicians

who generated the DNA profiles did not testify at his trial, the

analyst’s testimony violated the Confrontation Clause. In

assessing Gomez’s argument, it is useful to separate the

analyst’s testimony into two parts: (1) her testimony regarding

the laboratory protocols and the generation of the DNA profiles

and (2) her expert opinion that several of the profiles matched.

See Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009) (addressing

Confrontation Clause issues when state presented two witnesses,

a laboratory supervisor who testified to procedures used in

generating profiles and a DNA analyst who compared profiles).

A.

¶11 Gomez correctly does not argue that the analyst’s

testimony about her role in the testing process, the

laboratory’s procedures, and the qualifications of the

technicians was hearsay. This testimony was based on the

analyst’s personal knowledge. Rather, Gomez argues that the

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analyst’s testimony about the DNA profiles was hearsay because

she was not involved in generating those profiles.

¶12 It is not clear that the data in the machine-generated

DNA profiles were hearsay statements. In United States v.

Washington, a divided Fourth Circuit held that printed data from

a gas chromatograph were not hearsay statements and therefore

the Sixth Amendment was not offended when the data were

introduced into evidence without offering the testimony of the

technicians who operated the machine. 498 F.3d 225, 229-32 (4th

Cir. 2007). But see id. at 232-35 (Michael, J., dissenting)

(concluding that data printouts are testimonial hearsay). After

Melendez-Diaz, the Supreme Court denied certiorari in

Washington, 129 S. Ct. 2856 (2009), and the Court has not yet

decided whether machine-generated data are testimonial hearsay.

Some courts, however, have so held. See, e.g., Commonwealth v.

Banville, 931 N.E.2d 457, 466 (Mass. 2010) (involving DNA

profiles); see also Washington, 498 F.3d at 233 (Michael, J.,

dissenting) (collecting cases to show that courts “consistently

consider computer-generated assertions of fact as hearsay

statements”). We assume without deciding that the machine-

generated DNA profiles here are hearsay statements.

¶13 We also note that the profiles were not introduced

into evidence as exhibits at Gomez’s trial; the analyst simply

testified about them. In Banville, the Massachusetts Supreme

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Judicial Court held that the Confrontation Clause is not

offended when an expert relies on testimonial hearsay to form an

opinion so long as the expert does not testify to the details of

the hearsay and the hearsay itself is not admitted. See

Banville, 931 N.E.2d at 466-67. The expert in this case did not

testify in detail about the DNA profiles and, as in Banville,

the profiles were not admitted into evidence as exhibits.

Nonetheless, without deciding the issue, we assume that the

analyst’s testimony here was functionally equivalent to the

introduction of the profiles into evidence.

¶14 In considering Gomez’s argument that the analyst’s

testimony about the profiles violated the Sixth Amendment, we

start from the premise that the Confrontation Clause does not

require that every person in the chain of custody be available

for cross-examination. Melendez-Diaz expressly rejected the

notion that “anyone whose testimony may be relevant in

establishing the chain of custody, authenticity of the sample,

or accuracy of the testing device, must appear in person as part

of the prosecution’s case.” 129 S. Ct. at 2532 n.1. Rather,

the Court emphasized that “[i]t is up to the prosecution to

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

require evidence; but what testimony is introduced must (if the

defendant objects) be introduced live.” Id. The Sixth

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Amendment requires only that those who do testify about the

chain of custody be available for cross-examination. Id.

¶15 Gomez does not contend in this Court that the chain of

custody of the DNA samples was insufficiently established.

Police officers testified that the evidence was collected and

sent to the laboratory, and the analyst testified that the

evidence was received, processed, tested, and returned. The

analyst testified from her own knowledge not only about the

laboratory’s general procedures, but also about the records kept

by the laboratory in this case. The chain of custody testimony

did not violate the Confrontation Clause simply because every

technician who handled and processed the samples did not

testify. See Melendez-Diaz, 129 S. Ct. at 2532 n.1.

¶16 The remaining question, then, is whether Gomez’s

inability to cross-examine the technicians deprived him of his

confrontation rights with respect to the analyst’s testimony

about the profiles. If the DNA profiles are hearsay statements,

they are in effect statements of the processing machine about

the data contained in the samples. The profiles contain neither

the opinion nor the statement of the technicians. The machine,

of course, cannot be cross-examined. The issue thus is whether

the Confrontation Clause was satisfied because the analyst,

rather than the technicians, was available for cross-

examination.

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¶17 In virtually identical circumstances, several courts

have held that the testimony of a witness with knowledge of how

the profiles were prepared satisfies the Sixth Amendment. The

Indiana Supreme Court’s decision in Pendergrass is particularly

instructive. In that case a laboratory supervisor testified

regarding the processing of DNA evidence. 913 N.E.2d at 704.

The supervisor had checked the work of the processors and

testified about the laboratory’s operating procedures. Id. at

707-08. Certificates containing data about the DNA profiles

generated at the laboratory were introduced into evidence during

the supervisor’s testimony. Id. at 704. A separate witness

then compared the profiles and drew conclusions as to whether

the defendant was the father of a rape victim’s aborted fetus.

Id. at 705.

¶18 The defendant in Pendergrass contended that the

certificates should not have been admitted into evidence without

the testimony of the employees who processed the samples. The

Indiana Supreme Court rejected that argument, pointing out that

the primary purpose of cross-examination is to test the

reliability of a statement. See id. at 708. In Pendergrass, as

here, the supervisor “would be a competent witness, perhaps the

ideal witness, against whom to lodge such challenges,” because

she “had personal knowledge of the laboratory’s work on the

specimens at issue as the person who performed the technical

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review.” Id. The Indiana court distinguished Melendez-Diaz,

noting that the defendant in Melendez-Diaz had no opportunity to

cross-examine anyone “involved in the substantive analysis.”

Id.

¶19 United States v. Boyd, 686 F. Supp. 2d 382 (S.D.N.Y.

2010), reached the same conclusion on facts indistinguishable

from those before us. In Boyd, as here, a laboratory supervisor

testified to the laboratory processes and results. Id. at 385.

The supervisor had compared the DNA profiles generated by the

laboratory but had not witnessed some of the preceding steps,

which were performed by technicians. Id. at 384-85. The court

found no Confrontation Clause violation, noting that the

testimony showed that the laboratory had established procedures,

there was “little to no discretion” in executing the other steps

of the testing process, and the technicians would have been

“less able to respond to questions about the intervening

procedures than the more expert witness who was actually called

to the stand.” Id. at 385. The court observed that

[o]nly the final stage of the DNA testing involved the
type of analytical judgment for which a certificate
would be an inadequate substitute for in-court
testimony under the Sixth Amendment. But this was
precisely where the Government provided live testimony
in the form of the expert who performed this step.

Id.

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¶20 Consistent with Pendergrass and Boyd, other

jurisdictions have held that DNA profiles may be admitted at

trial when the laboratory technicians who handled the samples

and obtained the machine-generated data do not testify, as long

as someone familiar with the profiles and laboratory procedures

is subject to cross-examination. See, e.g., Vann v. State, 229

P.3d 197 (Alaska Ct. App. 2010); Aguilar v. Commonwealth, 699

S.E.2d 215 (Va. 2010); see also State v. Dilboy, 999 A.2d 1092

(N.H. 2010) (involving an expert testifying about a toxicology

report he had not prepared personally); State v. Bullcoming, 226

P.3d 1, 9 (N.M. 2010), cert. granted, 131 S. Ct. 62 (U.S. Sep.

28, 2010) (finding Confrontation Clause satisfied when gas

chromatograph evidence was admitted without testimony of analyst

who prepared report, because another qualified analyst was

subject to cross-examination at trial; characterizing original

analyst as a “mere scrivener;” concluding that “the live, in-

court testimony of a separate qualified analyst is sufficient to

fulfill a defendant's right to confrontation”). Here, as in

these cases, the processing technicians performed no analysis,

and the testifying analyst had extensive knowledge of the

laboratory’s procedures, had reviewed the technicians’ work, and

was familiar with the machine-generated data.

¶21 We find the reasoning in these cases compelling. The

technicians at most could have testified about the mechanical

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steps they took to process the DNA samples. The analyst was

able to review that work, testify from her own knowledge as to

the procedures used, and answer questions during cross-

examination about the accuracy of the end results. The

analyst’s testimony therefore did not offend the Confrontation

Clause.

B.

¶22 Regarding the analyst’s expert opinion, we repeatedly

have held that the Confrontation Clause is not violated when an

expert bases testimony on data provided by others who are not

subject to cross-examination. We have held that a medical

examiner may offer an expert opinion based on review of reports

and test results prepared by others, as long as the testifying

expert does not simply “act as a conduit for another non-

testifying expert’s opinion.” State v. Snelling, 225 Ariz. 182,

187 ¶ 19, 236 P.3d 409, 414 (2010) (internal quotation marks

omitted) (quoting State v. Smith, 215 Ariz. 221, 228 ¶ 23, 159

P.3d 531, 538 (2007)). In Snelling, the testifying medical

examiner reviewed photographs of the victim and an autopsy

report prepared by another pathologist and offered opinions as

to cause of death based on the test results in that report. Id.

at ¶ 20. We confirmed that the defendant’s confrontation right

extended only to the testifying witness, not to those whose

findings formed the basis for the witness’s opinion. Id.; see

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also Smith, 215 Ariz. at 228-29 ¶¶ 21-26, 159 P.3d at 538-39

(finding no Confrontation Clause violation when an expert, in

forming independent conclusions, reasonably relies on

information obtained from others not testifying at trial); cf.

Ariz. R. Evid. 703 (allowing expert testimony to be based on

facts or data otherwise not admissible, “[i]f of a type

reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject”).

¶23 As in Snelling, the analyst here did not act as a

“conduit” for the opinions of others. See Snelling, 225 Ariz.

at 187 ¶¶ 19, 20, 236 P.3d at 414. Rather, she formed her own

opinions, based on a type of data normally relied upon by

experts in her field. See id. at ¶ 20; Smith, 215 Ariz. at 228

¶ 24, 159 P.3d at 538. We found no Confrontation Clause

violation in Snelling, even though the testifying medical

examiner “referred to the [autopsy] report’s findings,” 225

Ariz. at 187 ¶ 20, 236 P.3d at 414, because the examiner reached

her own conclusions and was subject to cross-examination as to

those conclusions, id.; see also United States v. Turner, 591

F.3d 928, 930 (7th Cir. 2010) (supervisor allowed to testify to

independent conclusions as an expert witness on the basis of a

report generated by forensic analyst); United States v.

Richardson, 537 F.3d 951, 960 (8th Cir. 2008) (analyst allowed

to testify to independent conclusions as an expert witness on

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basis of her review of results of testing conducted by another

analyst); Vann, 229 P.3d at 210 (same).

¶24 The testifying expert in this case was subject to

cross-examination about her independent conclusion that several

of the DNA profiles came from the same person. The analyst’s

reliance on data obtained from non-testifying witnesses in

arriving at her opinion did not violate the Confrontation

Clause.

IV.

¶25 Gomez requested a jury instruction that “[t]he work of

non-testifying witnesses is admitted only to allow the

consideration of the reasons for the expert’s opinion.” He

argued that the instruction was compelled by Arizona Rule of

Evidence 105, which provides that “[w]hen evidence which is

admissible . . . for one purpose but not admissible . . . for

another purpose is admitted, the court, upon request, shall

restrict the evidence to its proper scope and instruct the jury

accordingly.” The trial court rejected the proposed instruction

as a comment on the evidence. The court of appeals upheld the

denial of the instruction on different grounds, finding the

instruction legally flawed. Gomez, 1 CA-CR 08-0318 at ¶ 27.

¶26 The court of appeals correctly noted that a trial

court generally does not have to separate the good from the bad

in a proposed instruction. See State v. Mitchell, 204 Ariz.

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216, 220 ¶ 22, 62 P.3d 616, 620 (App. 2003). Rule 105, however,

mandates a limiting instruction on request. The submission of

an inadequate instruction does not waive the defendant’s right

to a limiting instruction in a case covered by Rule 105.

Readenour v. Marion Power Shovel, 149 Ariz. 442, 451, 719 P.2d

1058, 1067 (1986) (holding that rejection of an inadequate

instruction “should not be used as a reason for giving no

instruction at all” (internal quotation mark omitted) (quoting 1

J. WEINSTEIN & M. BERGER, WEINSTEIN’S EVIDENCE ¶ 105[05] at 105-

37 (1985))).

¶27 We nonetheless find no reversible error. Rule 105

applies only when the evidence “is admissible . . . for one

purpose but not admissible . . . for another purpose.” Because

the DNA profiles were not themselves admitted into evidence, the

instruction Gomez requested necessarily related to the analyst’s

testimony about the profiles. In contrast to Snelling, where

testimony about the underlying data was offered only to support

an expert opinion, the analyst’s testimony here about the DNA

profiles was not so limited. The analyst testified as an expert

on DNA, but also established the chain of custody, testified how

the evidence submitted by the police to the laboratory was

processed, and explained how DNA profiles were derived from that

evidence. Her testimony thus was offered to demonstrate that

the profiles were in fact generated from DNA obtained at the

15
crime scene and from Gomez. Because the analyst’s testimony

about the profiles was not submitted simply to support her

expert opinion, a limiting instruction was not required.

IV.
¶28 For the reasons above, we affirm Gomez’s convictions

and sentences, but vacate ¶¶ 21-27 of the memorandum decision of

the court of appeals.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
J. William Brammer, Jr., Judge∗

∗
Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable J. William Brammer, Jr., Judge of
the Arizona Court of Appeals, Division Two, was designated to
sit in this matter.

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