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State v. Walker

Supreme Court of Connecticut

August 13, 2019

STATE OF CONNECTICUT
v.
EUGENE L. WALKER

          Argued January 23, 2019

         Procedural History

         Substitute information charging the defendant with the crimes of felony murder, manslaughter in the first degree with a firearm, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, and criminal possession of a pistol or revolver, brought to the Superior Court in the judicial district of Ansonia-Milford and tried to the jury before Markle, J.; verdict and judgment of guilty of felony murder, manslaughter in the first degree with a firearm, attempt to commit robbery in the first degree, and criminal possession of a pistol or revolver, from which the defendant appealed to the Appellate Court, Alvord, Kahn and Bear, Js., which affirmed in part and reversed in part the judgment of the trial court and remanded the case for resentencing, and the defendant, on the granting of certification, appealed to this court. Reversed in part; new trial.

          John L. Cordani, Jr., assigned counsel, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, Cornelius Kelly, senior assistant state's attorney, and Rocco A. Chiarenza, assistant state's attorney, for the appellee (state).

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins and Ecker, Js.

          OPINION

          MULLINS, J.

         The sole issue in this certified appeal is whether Appellate Court correctly concluded that the defendant, Eugene L. Walker, failed to establish a violation of his right under the sixth amendment to the United States constitution to confront witnesses against him. Specifically, the defendant asserts that the state violated his right to confrontation by introducing evidence at trial that his DNA profile, which had been generated from a postarrest buccal swab, matched the DNA found on evidence from the crime scene without calling as a witness the analyst who processed the buccal swab and generated the DNA profile used in that comparison.

         The defendant's DNA profile was created after his arrest in aid of an ongoing criminal investigation and under circumstances objectively indicating that it was created for the primary purpose of being used as evidence in the defendant's criminal case. In addition, the sole analyst who testified about the DNA evidence at trial neither performed nor observed the analysis of the buccal swab that produced the DNA profile and, therefore, was not a sufficient substitute witness to satisfy the defendant's right to confrontation. We conclude that, under the specific circumstances of this case, the defendant has established a violation of his right to confrontation. As a result, we reverse in part the judgment of the Appellate Court.

         The Appellate Court's decision sets forth the following relevant facts, which the jury reasonably could have found. ‘‘On the night of October 28, 2012, Anthony Adams, the codefendant in this consolidated trial, telephoned Alexis Morrison to ask if she knew ‘somebody that could sell him some weed.' Morrison called Neville Malacai Registe, the victim, to arrange for him to meet with Adams in the parking lot of her West Haven residence. When the victim received Morrison's telephone call, he was with his friend, Stephon Green, at his mother's home in New Haven. After some time, the victim and Green left in the victim's Acura. As they approached the designated parking lot, the victim called Morrison. Morrison then telephoned Adams to tell him that the victim ‘was there.' Adams replied that he had already left because the victim ‘took too long . . . and that Day-Day and GZ [were] going to get the weed.' ‘Day-Day' and ‘GZ' were nicknames for Daquane Adams, who is Anthony Adams' cousin, and the defendant, respectively, both of whom Morrison knew.

         ‘‘When the victim and Green arrived in the parking lot, the victim backed his car into a parking space. Green, who was rolling a marijuana joint in the front passenger seat, looked up and noticed two men approaching the Acura. He returned his attention to his task, and the victim opened the driver's door to talk to one of the men. [That] man, who was wearing a black bandana and who was later identified as the defendant, held a revolver inside the car and said, ‘run it,' meaning, ‘give me it. It's a robbery . . . .' A physical altercation ensued. The second man, later identified as Daquane Adams, stepped away from the Acura and placed a cell phone call to someone. A Toyota arrived, and a third man exited that car and asked the defendant for the gun.[1] The struggle over the gun continued inside the victim's Acura, and someone knocked Green into the backseat. Daquane Adams and the third man pulled the defendant out of the [Acura] and, as Green was climbing back into the front passenger seat, a shot was fired. Green heard the victim say, ‘oh, shit,' and then heard a second shot.

         ‘‘The defendant, Daquane Adams, and the third man got in the Toyota and drove toward the parking lot exit. With the victim slumped over in the driver's seat, Green pursued the Toyota. He caught up to it at the end of the street and rammed the Acura into the back of the Toyota. The victim's Acura was disabled, but the Toyota was able to be driven away. The victim died of a gunshot wound to his head.'' (Footnote in original.) State v. Walker, 180 Conn.App. 291, 296-97, 183 A.3d 1 (2018).

         The record reveals the following additional relevant facts and procedural history. In December, 2012, the defendant was arrested and charged with felony murder in violation of General Statutes (Rev. to 2013) § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134, and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2). Anthony Adams and Daquane Adams also were arrested in December, 2012, and were subsequently charged with various offenses.

         After the defendant's arrest, the state continued its investigation into the respective roles played by the defendant, Anthony Adams, and Daquane Adams in the shooting. During their initial investigation, the police recovered from the Acura the black bandana that Green identified as having been worn by the man who shot the victim. The police sent the bandana to a laboratory run by the Division of Scientific Services of the Department of Emergency Services and Public Protection to be analyzed for DNA. In June, 2013, the state filed a motion in the present case requesting that the defendant submit to a buccal swab of his mouth[2] ‘‘for purposes of obtaining a DNA sample.'' The state argued that the DNA ‘‘will be of material aid in determining whether the defendant committed the crime of felony murder.'' The court granted the state's motion, and Tammy Murray, a detective in the West Haven Police Department, took the defendant's buccal swab on June 19, 2013. Murray also took buccal swabs from Anthony Adams and Daquane Adams.[3] Those three buccal swabs, as well as a sample of the victim's blood, were then sent to the laboratory to be analyzed.

         At the laboratory, Heather Degnan, a supervisory forensic analyst, received the three buccal swabs and the victim's blood sample and sent them to the ‘‘known processing group''-a group within the laboratory that processes all known DNA samples to be used in comparisons-to be analyzed. The known processing group generated a DNA profile from each sample and provided the profiles to Degnan. Degnan generated DNA profiles from the bandana, which she then compared with the known profiles that had been provided to her. As a result of that comparison, Degnan determined that the defendant was a major contributor to the DNA on the bandana. The victim, Anthony Adams, and Daquane Adams were eliminated as potential contributors. Degnan memorialized her findings in a ‘‘DNA Report'' dated August 28, 2013 (report).

         After Degnan issued her report linking the defendant to the bandana believed to have been worn by the shooter, the state filed an amended substitute information charging the defendant with the additional crimes of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a (a), and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 2013) § 53a-217c (a) (1).

         The envelope containing the defendant's buccal swab that Murray submitted to the laboratory was admitted into evidence. A review of that exhibit reveals that the envelope is labeled with the defendant's name, his right thumb print, and the words ‘‘DNA Buccal Swab Kit.'' The envelope lists ‘‘West Haven P.D.'' as the submitting agency and displays a notation reading ‘‘Incident: Homicide.'' The envelope identifies the defendant's address as the MacDougall-Walker Correctional Institution.

         Following Murray's testimony, the state called Degnan to testify. She began by explaining the standard DNA typing techniques used by the laboratory in generating DNA profiles. She testified that the process involves four steps: (1) extracting DNA from the sample and purifying it of contaminants; (2) quantitating the DNA, i.e., determining the amount of DNA that has been extracted; (3) amplifying the DNA using a thermal cycler machine, i.e., creating many copies of different regions of the DNA; and (4) interpreting the data generated from these steps and constructing the numerical DNA profile, which consists of a series of numbers to designate the ‘‘alleles.''[4]

         Degnan further testified about her analysis and findings. Degnan testified that she personally analyzed the bandana using standard DNA typing techniques. She isolated DNA from both sides of the bandana and generated DNA profiles of at least two contributors, a major contributor and a minor contributor. With respect to the buccal swabs and the victim's blood sample, however, Degnan testified that she did not generate those DNA profiles herself. Degnan explained that the swabs and blood sample were sent to the known processing group, which generated DNA profiles from the samples and then ‘‘provided'' those profiles to her for comparison with the DNA from the bandana.

         Before Degnan testified as to the results of her comparison, defense counsel objected to the admission of this evidence on the ground that Degnan had not been qualified as an expert. During voir dire examinations conducted in the jury's presence, Degnan admitted that she neither participated in the known processing group's analysis of the defendant's buccal swab nor observed the analysis being conducted.

         Nonetheless, when asked whether she was ‘‘swearing to the accuracy'' of the DNA profile provided to her, Degnan responded by saying ‘‘[y]es.'' Degnan further testified that, in addition to the profile itself, the known processing group provided her with ‘‘paperwork'' indicating that ‘‘all of the checkboxes were check[ed]''- that is, that the analyst or analysts who processed the known samples ‘‘did it properly, followed standard operating procedures.'' Degnan confirmed, however, that she ‘‘wasn't there'' when the known processing group analyzed the defendant's buccal swab.

         Ultimately, the trial court overruled the objection and permitted Degnan to testify to the results of her analysis. Degnan testified that, based on her analysis and DNA comparison, the defendant was a major contributor to the DNA found on both sides of the bandana. Degnan's report was admitted into evidence.[5] In the report, Degnan explained that the buccal swab was analyzed in accordance with standard laboratory procedures. The report also contains a table setting forth the numerical profiles generated from the defendant's buccal swab, the bandana, and the victim's blood sample. On the basis of a comparison of these profiles, Degnan concluded that the defendant ‘‘is included as a contributor to the DNA profiles'' obtained from the bandana. The report was signed by Degnan and Dahong Sun, a ‘‘technical reviewer'' who reviewed Degnan's work and confirmed the accuracy of her conclusions. The final page of the report, just above Degnan's and Sun's signatures, provides: ‘‘This report reflects the test results, conclusions, interpretations, and/or the findings of the analyst as indicated by their signature below.''[6] No one from the known processing group testified at trial.

         The jury found the defendant guilty of felony murder, manslaughter in the first degree with a firearm, attempt to commit robbery in the first degree, and criminal possession of a pistol or revolver.[7] State v. Walker, supra, 180 Conn.App. 297. The court imposed a total effective sentence of forty-five years incarceration to be followed by ten years of special parole. Id.

         The defendant then appealed to the Appellate Court, claiming, inter alia, that he was deprived of his sixth amendment right to confront witnesses against him because the trial court admitted the evidence of Degnan's comparison without requiring an analyst from the known processing group who generated the known DNA profile used in that comparison to testify. Id., 297-98. The Appellate Court first concluded that, despite the defendant's failure to raise the confrontation clause as an objection at trial, the claim was reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). State v. Walker, supra, 180 Conn.App. 301-302.

         The Appellate Court further concluded, however, that the defendant's claim failed under Golding because the admission of the DNA evidence did not violate his constitutional right to confrontation. Id., 302. The Appellate Court reasoned principally that Degnan, the analyst who ‘‘conducted the critical analysis and made the resulting findings'' that connected the defendant to the bandana from the crime scene, testified and was available for cross-examination at trial regarding her analysis and findings. Id.[8]

         Upon our grant of certification to appeal, the defendant claims that the Appellate Court incorrectly concluded that the introduction of the evidence concerning his DNA profile did not violate his confrontation rights.[9] Because the defendant failed to raise a confrontation clause objection in the trial court, we review this claim pursuant to Golding. See, e.g., State v. Smith, 289 Conn. 598, 620-21, 960 A.2d 993 (2008). Under Golding, ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.'' (Emphasis in original; internal quotation marks omitted.) State v. Newton, 330 Conn. 344, 353, 194 A.3d 272 (2018); see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding).

         The first two prongs of Golding are satisfied here. The record is adequate for review, and the defendant's claim is of constitutional magnitude because it implicates his sixth amendment right to confrontation. Furthermore, the state does not attempt to meet its burden of establishing that the error was harmless beyond a reasonable doubt. Accordingly, the sole issue in this appeal concerns the third prong of Golding-namely, whether the defendant has established a violation of his sixth amendment confrontation rights.

         The defendant claims that his right to confrontation was violated because the DNA profile generated from his postarrest buccal swab and provided to Degnan for use in a comparison was testimonial hearsay, and the analyst who generated the profile was not made available for cross-examination at trial. As support for this claim, the defendant contends that the evidence of his DNA profile was offered for its truth and was generated for the primary purpose of providing evidence against him in his criminal case. In response, the state contends that the evidence admitted concerning Degnan's DNA comparison was neither hearsay nor testimonial in nature. Alternatively, the state contends that, even if the DNA profile were testimonial hearsay, the defendant's right to confrontation was satisfied because he had the opportunity to cross-examine Degnan, who personally processed the bandana and made the comparison, and who was familiar with the laboratory's standard procedures for conducting DNA analyses. We agree with the defendant that, under the circumstances of this case, the admission of the evidence concerning his DNA profile violated his sixth amendment right to confrontation.

         The sixth amendment to the United States constitution, applicable to the states through the fourteenth amendment, [10] provides in relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .'' U.S. Const., amend. VI. ‘‘In Crawford v. Washington, [541 U.S. 36');">541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)], the [United States] Supreme Court substantially revised its approach to confrontation clause claims. Under Crawford, testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity for cross-examination and the witness is unavailable to testify at trial. . . . In adopting this ‘categorical' approach, the court overturned existing precedent that had applied an ‘open-ended balancing [test]' . . . conditioning the admissibility of out-of-court statements on a court's determination of whether the proffered statements bore ‘adequate indicia of reliability.' . . . Although Crawford's revision of the court's confrontation clause jurisprudence is significant, its rules govern the admissibility only of certain classes of statements, namely, testimonial hearsay.'' (Citations omitted.) State v. Buckland, 313 Conn. 205, 212-13, 96 A.3d 1163 (2014), cert. denied, U.S., 135 S.Ct. 992, 190 L.Ed.2d 837 (2015). Accordingly, the threshold inquiries in a confrontation clause analysis ‘‘are whether the statement was hearsay, and if so, whether the statement was testimonial in nature . . . .'' State v. Smith, supra, 289 Conn. 618-19. These are questions of law over which our review is plenary. Id., 619.

         With these principles in mind, we address the three components of the defendant's confrontation clause claim: (1) whether the evidence was hearsay, (2) whether the evidence was testimonial, and (3) whether the defendant's ...


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