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Vann v. State (4/23/2010) ap-2259

Vann v. State (4/23/2010) ap-2259

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JOHN LEE VANN,                     
                                   
                    Appellant,       Court of Appeals No. A-9887
                                    Trial Court No. 3SW-03-116 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                        No. 2259    April 23, 2010
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Seward, Charles T.  Huguelet,
          Judge.

          Appearances:  Sarah Kalish and Josie  Garton,
          Assistant   Public  Defenders,  and   Quinlan
          Steiner, Public Defender, Anchorage, for  the
          Appellant.   Tamara  E. de  Lucia,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Daniel S. Sullivan, Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          The major question in this case is whether the superior
court  violated the defendants right of confrontation  under  the
Sixth  Amendment  to  the  United States  Constitution  when  the
superior  court allowed a laboratory technician employed  by  the
State  Crime Lab to testify about the results of genetic  testing
performed  by the Crime Lab, when a portion of that  testing  was
conducted by another Crime Lab technician who did not testify.
          In  Meléndez-Díaz v. Massachusetts, 557  U.S.  __,  129
S.Ct.  2527,  174  
L.Ed.2d 314 (2009), a cocaine trafficking case, the United States Supreme Court held that the Sixth Amendments confrontation clause barred the government from relying on hearsay evidence in the form of certificates of analysis prepared by three laboratory technicians to prove that certain substances in the defendants possession were, in fact, cocaine. 129 S.Ct. at 2532.
The Supreme Court declared that the lab technicians certificates were testimonial hearsay that is, the certificates were the type of hearsay barred by the confrontation clause because the certificates were functionally identical to live, in-court testimony: each certificate was a solemn declaration or affirmation made for the purpose of establishing or proving some fact in a court proceeding. Ibid.1
In the present case, the defendant John Lee Vann was charged with kidnapping and sexually assaulting a woman. At Vanns trial, the major disputed issue was the identity of the perpetrator. Vann claimed that he had never met the victim, that he was elsewhere on the night in question, and that if the victim was kidnapped and sexually assaulted, he was not the one who did it.
As part of the States effort to establish that Vann was the culprit, the State presented the testimony of Cheryl Duda, a DNA analyst employed at the Alaska State Crime Detection Laboratory.
Duda testified that the Crime Lab received genetic samples from both Vann and the victim, and that these known samples were then compared to five samples of genetic material that were obtained from items associated with the crime. Duda tested three of these samples herself, but the other two samples were tested by Jessica Cohen, another DNA analyst working at the Crime Lab. Over Vanns objection, the superior court allowed Duda to describe and interpret the test results from all five samples.
The question is whether the superior courts ruling is incompatible with the Supreme Courts decision in Meléndez-Díaz. As we explain in more detail in this opinion, we conclude that Meléndez-Díaz does not bar the admission of the testimony that Vann challenges in this case. Here, in a nutshell, is our analysis:
Although Cheryl Dudas associate, Jessica Cohen, processed two of the samples (by running them through a machine that analyzes the genetic profile contained in DNA), Duda testified that (1) she herself interpreted the data read-outs produced by the machine from Cohens two samples, and (2) the conclusions that Duda reached about the significance of the test results were her own. Thus, Duda was the real witness with respect to all five of the samples much as a doctor would be the real witness regarding a diagnosis of illness, or a pathologist would be the real witness regarding a conclusion as to cause of death, even though the doctor or pathologist relied in substantial measure on the results of testing conducted by laboratory technicians. Accordingly, Vanns right of confrontation under the Sixth Amendment was satisfied when he was afforded the opportunity to cross-examine Duda.
A more detailed  description  of
     the challenged testimony
     
               As  we  explained  above,  two  DNA  analysts
     working  at the Alaska State Crime Detection Laboratory
     Cheryl  Duda  and  Jessica Cohen  participated  in  the
     testing of the samples in Vanns case.
          Duda  personally tested and obtained DNA from
three  samples:  two swabs that were taken from bottles
connected to the crime, and a swab of blood taken  from
the front passenger window of the vehicle involved.
          As  described by Duda, the testing of genetic
samples consists of four steps.  First, strands of  DNA
are  chemically  extracted from the  sample.   This  is
followed by the second step:  a measurement of how much
DNA  has been obtained from the extraction.  Third, the
extracted DNA is amplified  chemically copied  so  that
there  is a sufficient quantity to perform an analysis.
Finally,  the strands of DNA are analyzed at 15  or  16
different locations to see what alleles (i.e.,  genetic
variants) are found at those locations.
          This  final stage of the testing  the  actual
analysis  of the genetic contents of the amplified  DNA
is performed by a machine.  At the time of Vanns trial,
the  State  Crime  Lab  was using  an  ABI-310  Genetic
Analyzer  for  this  purpose.  The  machine  chemically
reads  the  genetic profile of the DNA,  and  then  the
machine  produces  a graph that visually  depicts  that
genetic  profile.  This graph can be  printed  out  for
later  review  and  comparison with test  results  from
other samples.
          After  Duda performed this described  testing
on  her  three samples (the swabs from the two bottles,
plus the blood swab), she compared the genetic profiles
of   these   three  samples  to  the  genetic  profiles
generated  from  the known DNA samples taken  from  the
victim   and  from  Vann.   The  first  bottle   sample
(referred to as sample 22-JFA in the testimony)  was  a
complete match of Vanns genetic profile.  According  to
Duda, the chance that the genetic material found on the
bottle came from someone other than Vann was less  than
one  in  1 quintillion (i.e., one in 1 billion billion,
or 1018).
          The   testing  of  the  blood  swab   yielded
identical  results:   the genetic profile  of  the  DNA
obtained from this blood was a complete match of  Vanns
genetic profile.
          The  sample  obtained from the second  bottle
(referred to as sample 25-JFA in the testimony) yielded
DNA from more than one source.  Although Duda could not
say  for  sure, it appeared that this sample  contained
DNA  from both Vann and the victim:  every DNA location
that  was testable in this sample yielded results  that
were  consistent with either Vanns genetic  profile  or
the victims genetic profile.
          In  addition to testing these three  samples,
Duda  also reviewed the report of the testing conducted
by  her associate, Cohen, on two other samples.  One of
these  samples  came from the victims body,  while  the
other came from the victims panty liner.
          However,  Duda  did not simply review  Cohens
report  in  the  sense of reading  it  and  noting  its
conclusions.   Rather,  Duda independently  re-analyzed
the  significance of the test data that Cohen  obtained
from  running  the  two  samples  through  the  ABI-310
Genetic  Analyzer.   Here is Dudas  testimony  on  this
point:
     
          Duda:   [Jessica Cohen was]  the  person
     who went into the laboratory and actually put
     scalpel to swab and cut it [to prepare it for
     testing],  but I did go through  all  of  her
     electronic data.  In other words, Jessica ...
     ran   these  [samples]  through  the  genetic
     analyzer,  and  then  the  genetic   analyzer
     produced [the test] data.  [My participation]
     began  at the process of looking at the  data
     she printed out [from the genetic analyzer].
     
          I made sure that, according to her bench
     notes,  she followed the protocols  that  are
     standard  for our laboratory.  [In addition,]
     I   [confirmed]  that  I  came  to  the  same
     [genetic] typing results that she did.  And I
     also looked at those [genetic] typing results
     to form conclusions [about whether the DNA in
     those samples matched the genetic profiles of
     the  people involved in this case].  [I] made
     sure  that [Jessica and I] came to  the  same
     conclusions [from] these tests.
          .  .  .
     
     Prosecutor:   Once  [the  samples  were]
analyzed, did you review the [test data] that
was obtained?

     Duda:  Yes, I did.

     Prosecutor:  Okay.  And that was ...  to
see if you drew the same conclusions?

     Duda:   Thats right.  To make sure that,
from  the  point  where the [ABI-310  Genetic
Analyzer] spits out the data for us, ... that
the  data  [presented in  Cohens]  report  is
consistent  with [the machines reading],  and
that the conclusions [she] reached [from that
data] are correct.

Duda  then testified that she concurred  with
all the information in [Cohens] report.
          In  particular, with regard to  the
sample obtained from the victims panty liner,
Duda  testified that this sample did  contain
at  least some male DNA, but the DNA obtained
from  this  sample was insufficient  for  the
genetic analyzer to produce data from many of
the  DNA  strand locations that are  used  as
test sites.  The machine was able to identify
the  alleles at a few DNA locations, and  all
of  these  identified alleles were consistent
with  either  Vanns genetic  profile  or  the
victims  genetic profile, but Duda  testified
that   she   [couldnt]  come  to   any   more
conclusions  than  that, because  there  just
isnt  enough  information  there.   She  then
added, Im not calling this a match.
          With  regard to the sample obtained
from  the  victims body, the genetic analyzer
was  able to fully analyze the DNA from  this
sample.   The  testing  yielded  two  genetic
profiles  an epithelial profile obtained from
outer  body  cells  and  a  separate  profile
obtained from sperm cells.
          Not  surprisingly,  the  epithelial
profile  matched the victims genetic profile.
The  sperm  profile, Duda  testified,  was  a
complete  match  of  Vanns  genetic  profile.
Again,  the chance that the genetic  material
found  in the sperm sample came from  someone
other  than  Vann  was less  than  one  in  1
quintillion.

The  trial  judges  ruling in  response  to  Vanns
confrontation clause objection

     Before  Cheryl  Duda took  the  stand,  Vanns
attorney objected to having Duda testify  to  what
[Jessica]  Cohen  did, and what [testing]  results
she  turned  in.  The trial judge, Superior  Court
Judge  Charles  T. Huguelet, concluded  that  this
issue was governed by Alaska Evidence Rule 703.
     Evidence  Rule 703 governs expert  testimony:
it  allows  a  witness to offer an expert  opinion
based  on underlying information or data that  was
made known to the expert, even if this information
or  data  would  not  be independently  admissible
under  the  rules  of evidence,  so  long  as  the
information or data is of a type reasonably relied
upon  by experts in [that] particular field [when]
forming opinions or inferences upon the subject.
     In  other words, under Evidence Rule 703, the
proponent  of expert testimony need not show  that
the information or data that the expert is relying
on   could  survive  a  hearsay  objection  or  an
objection  based  on the expert witnesss  lack  of
first-hand  knowledge.  See the  fifth  and  sixth
paragraphs  of  the Commentary to Alaska  Evidence
Rule 703; Guerre-Chaley v. State, 88 P.3d 539, 542
(Alaska App. 2004).
     Responding    to   the   defense    attorneys
objection,   Judge  Huguelet   stated   that   the
determinative  issue  was  whether   Cohens   test
results  were  something that someone  in  [Dudas]
field of expertise [would rely] on, routinely,  to
base their opinions.  The judge then explained:

     The  Court:  If this is the type of fact
or  data  that is reasonably relied  upon  by
experts  in Ms. Dudas field, then she  should
be  able to testify to it.  If it isnt,  then
she   shouldnt.   ...   I  mean,   if   [this
information  is offered] as a basis  for  her
opinion,  the  facts or  data  that  she  has
relied   on,   then  it  would  probably   be
admissible.   [But] Id have to hear  it,  you
know. I cant predetermine [this question].

          Vanns attorney argued that a normal
Rule 703 analysis did not apply, because  the
State was not simply trying to introduce  the
facts   or  data  underlying  Dudas  opinion.
Rather,  the  defense  attorney  argued,  the
State was really attempting to introduce  one
expert  witnesss  findings (Cohens  findings)
through  the  testimony  of  another   expert
witness (Duda):

     Defense Attorney:  The problem is [that]
the  State  is  trying  to  [have]  Ms.  Duda
testify [about] Ms. Cohens work.  ...   [T]he
State  wants  ...  Ms. Duda  to  be  able  to
testify  to  what  Ms. Cohen  did,  and  then
testify  to  what  Ms. Cohens  results  were.
[Ms.  Cohens  test  was] a totally  different
test.   Thats [inadmissible] hearsay, and  in
violation  of [Vanns] right to confront  [his
accusers].  ...

     There  [were]  two different  tests,  is
what Im saying. Two different tests were done
by two different people.

          Judge Huguelet reiterated his  view
that  the issue was governed by Evidence Rule
703:   [Dudas  testimony] needs to  fit  into
[Rule]  703 ... .  [If] her opinion ...  [is]
based  on someone elses work, and thats  what
experts  in  [her] field rely  on,  then  she
should be able to ... disclose the underlying
facts and data that she relies on.
          As  indicated  by  Judge  Huguelets
remarks  quoted above, the judge acknowledged
that  he  did not yet have enough information
to  make  a final ruling on the admissibility
of Dudas proposed testimony  because Duda had
not   yet   testified  on  the   foundational
question of whether Cohens test results  were
the  kind of information or data that experts
in her field would rely on.  Because of this,
Judge  Huguelet encouraged Vanns attorney  to
renew  his  objection if, later, the  defense
attorney concluded that Dudas testimony about
the  DNA  testing performed by Cohen exceeded
the scope of testimony permitted by Rule 703.
          The  defense  attorney  raised   no
further objection on this issue during  Vanns
trial.

A more detailed look at the issue raised in this appeal

     As  we  just  noted, the trial judge  invited
Vanns  attorney  to  raise  an  objection  if  the
defense  attorney  believed that  Dudas  testimony
about  the  test results obtained  by  Cohen  fell
outside  the  scope  of admissibility  defined  by
Evidence  Rule  703.  The defense  attorney  never
raised  such  an objection.  And, on appeal,  Vann
does  not argue that Dudas testimony exceeded  the
scope  of Evidence Rule 703.  Rather, Vann  argues
that it is irrelevant whether Dudas testimony  was
authorized by Evidence Rule 703  because, even  if
the challenged testimony was admissible under Rule
703,  the  admission  of this  testimony  violated
Vanns  right  of confrontation guaranteed  by  the
Sixth Amendment.
     Because   Vann   does   not   challenge   the
admissibility  of Dudas testimony  under  Evidence
Rule  703,  he  impliedly concedes that  the  test
results obtained by Cohen were, in fact, the  type
of  data  that  Duda  (as  a  DNA  analyst)  would
reasonably  rely on when she formed an opinion  as
to  whether  Vann was potentially the  culprit  in
this case.
     Thus,  Vanns  appeal  raises  the  issue   of
whether, or how, the confrontation clause  of  the
Sixth   Amendment  limits  the  admissibility   of
evidence under Evidence Rule 703  i.e., limits the
admissibility of evidence that would otherwise  be
hearsay  when that evidence is offered to  explain
the basis for an experts opinion.
          Both   Alaska  Evidence  Rule  703  and   the
corresponding  federal rule upon  which  it  is  based,
Federal Evidence Rule 703,2 were expressly intended  to
modify  the  common-law rules of evidence  by  allowing
expert  witnesses to offer opinions based on  facts  or
data   that   are   not  independently  admissible   in
evidence.3   So long as the information is  of  a  type
reasonably  relied  on by experts in  that  field,  the
expert witness is permitted to testify concerning  that
information   as  a  basis  for  their  opinion.4    As
explained  in  the Commentary to Alaska  Evidence  Rule
703:
     
     [T]he  rule is [premised on] the belief  that
     when  an  expert is deemed skilled enough  to
     assist  the trier of fact, the expert  should
     be  allowed to utilize the tools that he  [or
     she]  normally uses to practice his [or  her]
     skills   outside  of  the  court.   Thus,   a
     physician  [may base a] diagnosis on  general
     information  obtained from  medical  journals
     and  treatises[,]  ...  [on]  statements   by
     patients  and  relatives,  [on]  reports  and
     opinions  from  nurses,  technicians[,]   and
     other  doctors,  [on] hospital  records,  and
     [on] x-rays.
     
     Commentary to Alaska Evidence Rule 703, fifth
     paragraph.
          The  facts of Meléndez-Díaz did not
raise   this   issue  directly,  because   no
laboratory   analyst   or   other    chemical
identification  expert  took  the  stand   in
Meléndez-Díaz.    Instead,   the   government
relied on a procedure under Massachusetts law
that  allowed the government to  introduce  a
sworn  report  prepared by  the  analyst  who
conducted  the  testing   a  certificate   of
analysis.    In  other  words,  Meléndez-Díaz
involved  a situation where hearsay  evidence
of  the laboratory analysts findings was  the
only evidence of the chemical composition  of
the substances in the defendants possession.
          Vanns  case is different.  To prove
that  Vann  was  the source  of  the  genetic
material retrieved from the victims body  and
from  various items connected to  the  crime,
the  State presented the testimony of  Cheryl
Duda,  a  DNA analyst employed by  the  State
Crime   Lab.   Duda  explained  the   testing
procedures, she explained her analysis of the
test  results, and she was subject to  cross-
examination  thus apparently satisfying Vanns
right of confrontation.  But Vann argues that
even though Duda took the stand at his trial,
he  was  nevertheless  denied  his  right  to
confront the other DNA analyst who worked  on
his case, Jessica Cohen.
          Vann  notes  that, with respect  to
two  of the five testing samples involved  in
this  case  (the  sample  obtained  from  the
victims  panty liner, and the sample obtained
from  the  victims body), it  was  Cohen  who
extracted   the   DNA,  conducted   the   DNA
analysis,  and  obtained  and  recorded   the
[test]     results.     Based    on     these
circumstances,  and  based  on  the   Supreme
Courts   decision   in  Meléndez-Díaz,   Vann
asserts  that  he  had a  right  to  confront
Cohen,  the  forensic  analyst  who  actually
performed the procedures and [the]  tests  on
these two samples.
          Ever   since   the  Supreme   Court
redefined   the   confrontation   clause   in
Crawford  v.  Washington, 541  U.S.  36,  124
S.Ct.  1354,  158 L.Ed.2d 177 (2004),  courts
have been struggling with the problem of  how
a  defendants right of confrontation  affects
or  limits  the  governments presentation  of
expert  opinion evidence in a criminal trial.
The  Supreme Courts decision in Meléndez-Díaz
may  have clarified this area of the  law  to
some  degree,  but  Meléndez-Díaz  does   not
provide a ready answer to the question  posed
in Vanns case.
          As  we explained earlier, Meléndez-
Díaz dealt with a situation at the far end of
the  confrontation spectrum.  The  government
presented  no live witness to establish  that
the  substance  in Meléndez-Díazs  possession
was  cocaine.  Rather, the government  relied
on   certificates  prepared   by   laboratory
analysts  employed by the government.   These
certificates were terse:  they contained only
the bare-bones statement that [t]he substance
[in  Meléndez-Díazs possession] was found  to
contain:   Cocaine. Meléndez-Díaz, 129  S.Ct.
at  2537.   The certificates did not  contain
any  explanation  of  the testing  procedures
that   the   analysts  used,  nor   did   the
certificates recite the resulting  test  data
upon   which   the   analysts   based   their
conclusions.  Ibid.
          In   other  words,  to  prove  that
Meléndez-Díaz    possessed    a    controlled
substance,  the government relied  on  wholly
conclusory written statements made by  absent
witnesses.  When the case is viewed  in  this
light,  it  is  easy  to agree  with  Justice
Scalias   pronouncement   that   the   Courts
decision   in  Meléndez-Díaz  was  simply   a
straightforward application of  [the  Courts]
holding in Crawford.  129 S.Ct. at 2533.
          So   what   were  the   points   of
contention  in  Meléndez-Díaz?   The   Courts
decision  is  notable,  not  for  the   legal
propositions  that  the  Court  adopted,  but
rather  for the legal propositions  that  the
Court rejected.
          Most    importantly,   the    Court
rejected   the   argument   that   laboratory
technicians  or  analysts are not  accusatory
witnesses,   but  are  instead  disinterested
scientific experts whose conclusions need not
be   subjected   to  the   demands   of   the
confrontation clause.
          The  Court  pointed  out  that,  in
Meléndez-Díazs case, the laboratory  analysts
provided  the governments sole  proof  of  an
essential  element of its case:   proof  that
the  defendant possessed cocaine.  129  S.Ct.
at 2533-34.  The fact that the government had
police  witnesses  who  could  testify   that
Meléndez-Díaz possessed this substance  would
matter  very  little without  the  laboratory
analysis of the substance.
          The Court further pointed out that,
even  though the ideal laboratory  technician
or   analyst   might   engage   in   neutral,
scientific  testing, 129 S.Ct. at  2536,  the
reality  was  sometimes  different.   As  the
Court  observed, [f]orensic evidence  is  not
uniquely    immune   from   the    risk    of
manipulation.   Ibid.  The Court  noted  that
the majority of forensic laboratories in this
country  are  administered by law enforcement
agencies; thus, the technicians who  work  at
these laboratories may feel pressure  or have
an  incentive   to alter the  evidence  in  a
manner favorable to the prosecution.  Ibid.5
          Nor  is purposeful manipulation  of
test  results the only danger.  As the  Court
observed,  the  Sixth  Amendments  right   of
confrontation  is designed to  weed  out  not
only   the   fraudulent  analyst,   but   the
incompetent  one as well.  ...   Like  expert
witnesses  generally,  an  analysts  lack  of
proper training or deficiency in judgment may
be  disclosed on cross-examination.   Id.  at
2537.
          The   Court   also   rejected   the
argument,   based  on  the   Courts   earlier
decision  in  Davis v. Washington,  547  U.S.
813,  126 S.Ct. 2266, 165 L.Ed.2d 224 (2006),
that  a  laboratory technicians  out-of-court
assertions   are   not   covered    by    the
confrontation  clause because the  technician
is    simply    observing    and    recording
contemporaneous    or    near-contemporaneous
events  e.g., a visible chemical reaction, or
the  reading displayed by a testing  machine.
Meléndez-Díaz, 129 S.Ct. at 2534-35.
          The  Court  pointed  out  that,  in
Davis  (actually,  in the companion  case  of
Hammon  v. Indiana), the victim of a domestic
assault gave an account of the crime  to  the
police  soon after the assault was committed;
the   victims   statement  was   sufficiently
contemporaneous  with the  assault  that  the
trial judge in that case ruled that this out-
of-court statement qualified for admission as
a  statement  of  present  sense  impression.
Meléndez-Díaz, 129 S.Ct. at 2535; Davis,  547
U.S.    at   820,   126   S.Ct.   at    2272.
Nevertheless, the Supreme Court held that the
          admission of this statement, without the
opportunity to cross-examine the  person  who
made  it, violated the confrontation  clause.
Meléndez-Díaz, 129 S.Ct. at 2535; Davis,  547
U.S. at 830-32, 126 S.Ct. at 2278-79.
          More importantly, the Meléndez-Díaz
Court   pointed   out  that   this   supposed
exception    for    witnesses    who     make
contemporaneous observations would  eliminate
a defendants right to confront a good deal of
police  testimony  as well   for  example,  a
police   officers  on-the-scene   description
(spoken   into   a   recording   device,   or
contemporaneously jotted down in a  notebook)
of  what the officer observed when he or  she
responded to a reported crime.  129 S.Ct.  at
2535.
          In  sum, the Court in Meléndez-Díaz
firmly  rejected  the  contention  that   the
confrontation clause somehow does  not  apply
to   testimony   concerning  the   scientific
testing and analysis of substances.  However,
the   decision  in  Meléndez-Díaz  does   not
provide firm guidance regarding the scope  of
the  confrontation that is required when  the
government  relies on evidence of  scientific
testing or analysis.
          This  question  is a difficult  one
because  many types of experts  not just  DNA
analysts,  but  also  doctors,  pathologists,
serologists,  and  psychiatrists    routinely
rely on the results of chemical, physical, or
psychological  testing  performed  by   other
people.
          As  we  explained  above,  Evidence
Rule 703 was expressly intended to allow such
expert  witnesses to offer opinions based  on
testing  data generated by other people,  and
to   allow  the  experts  to  explain   their
opinions  to  the  trier of  fact  by  openly
referring to this testing data.  And,  as  we
also   explained   above,  Vann   essentially
concedes   that  Dudas  testimony  concerning
Cohens test results was admissible under Rule
703  to  explain the basis for  Dudas  expert
conclusions.
          The  question posed in this  appeal
is  whether, under Meléndez-Díaz,  the  Sixth
Amendment  right of confrontation limits  the
scope    of    expert   testimony   otherwise
authorized  by  Evidence Rule 703  when  this
type   of  evidence  is  introduced  by   the
government   against  the  defendant   in   a
criminal case.

A survey of the case law on this issue

     Several  courts have already issued decisions
addressing    the   relationship    between    the
confrontation  clause  and  the  admissibility  of
expert testimony that rests on information or data
provided  or  generated by other people.   A  good
many  of  these  court opinions have  been  issued
within  the  last  several months,  in  litigation
prompted   by  the  Supreme  Courts  decision   in
Meléndez-Díaz.   But  even  before  Meléndez-Díaz,
several courts recognized that the Supreme  Courts
decision  in  Crawford  potentially  affected  the
admissibility of expert testimony when the experts
opinion  is based on information or data  obtained
from other people.
     Some  of the pre-Meléndez-Díaz decisions  are
now  questionable   most notably,  the  California
Supreme  Courts decision in People v.  Geier,  161
P.3d 104, 61 Cal.Rptr.3d 580 (Cal. 2007).
          In  Geier,  the  California court  held  that
hearsay   evidence  of  DNA  test   results   was   not
testimonial for purposes of Crawford.  161 P.3d at 138,
61  Cal.Rptr.3d  at 620.  In reaching this  conclusion,
the  California court heavily relied on two  principles
that were later rejected in Meléndez-Díaz:  first,  the
notion  that  evidence  of laboratory  testing  is  not
accusatory,  Geier, 161 P.3d at 140, 61 Cal.Rptr.3d  at
622;  and second, the notion that a laboratory analysts
report   is  merely  a  collection  of  contemporaneous
observations,   Geier,  161   P.3d   at   139-140,   61
Cal.Rptr.3d at 620-21.
          As  one  panel  of  the California  Court  of
Appeal  recently  observed in  People  v.  Benítez,  __
Cal.Rptr.3d __, 2010 WL 625414 (Cal. App. 2010),  given
the  fact  that  both of these premises were  expressly
rejected by the United States Supreme Court in Meléndez-
Díaz, [r]eliance on Geier as authority for permitting a
substitute   witness  to  testify   [about]   otherwise
inadmissible  scientific reports  would  be  misplaced.
Benítez, 2010 WL 625414 at *5.
          In  contrast to the California Supreme Courts
decision  in  Geier, many courts (in  decisions  issued
both  before  and after Meléndez-Díaz) have  recognized
that  hearsay testimony about the results of laboratory
or  other scientific testing can be testimonial hearsay
for   confrontation   clause  purposes    and,   as   a
consequence,   these   courts   have   addressed    the
relationship between a defendants confrontation  rights
and  the admissibility of expert testimony under  rules
equivalent to our Evidence Rule 703.
          We have examined many of these decisions, and
the rule that emerges from them is essentially the rule
stated  by  the  Michigan Court of Appeals  in  a  pre-
Meléndez-Díaz decision, State v. Lonsby, 707 N.W.2d 610
(Mich. App. 2005).
          In   Lonsby,   the  government   called   one
serologist,  Woodford, to testify about  serum  testing
that had actually been conducted by another serologist,
Jackson.  As explained by the Michigan court, Woodfords
testimony  was basically a summary of Jacksons  written
report   and,  for  that  reason,  the  Michigan  court
concluded  that the presentation of Woodfords testimony
violated  the  defendants right of confrontation.   707
N.W.2d at 621.  The Michigan court declared:
     
The  critical  point  [in  our  confrontation
clause  analysis] is the distinction  between
an  expert who [offers] an opinion  based  in
part on the work of others and an expert  who
merely  summarizes the work of  others.   ...
[O]ne expert cannot act as a mere conduit for
the opinion of another.

Lonsby,  707  N.W.2d at 621 n.  12  (citation
omitted).
          Or, as recently stated by the North
Carolina Court of Appeals in State v. Conley,
unpublished,  2010 WL 157554, *5  (N.C.  App.
2010),

[I]f an expert is merely offering the opinion
of   another  non-testifying  expert  via   a
testimonial   document,   the   Confrontation
Clause  is  [implicated],  and  the  Crawford
safeguard  of ... cross-examination  applies.
If   [on   the  other  hand]  an  expert   is
presenting  an independent analysis,  subject
to  the  rigors of cross-examination  on  the
experts  own  thoughts and conclusions,  then
the Confrontation Clause is satisfied[.]

          This  theme  that the confrontation
clause  bars the government from  calling  an
expert  witness  whose testimony  is  a  mere
conduit  for  the  analysis  and  conclusions
reached  by  another, absent  expert  witness
runs  throughout the appellate  decisions  on
this  issue.   And, with the exception  of  a
group of California Court of Appeal decisions
that  still  adhere to Geier,6  this  conduit
limitation  explains the results  reached  by
the courts from other states.
          In    other    words,   when    the
governments expert is simply a conduit for an
absent  witnesss  analysis,  courts  find   a
violation  of the confrontation  clause;  but
when the governments expert offers their  own
analysis, based in part on test data obtained
from  other  people,  courts  find  that  the
          confrontation clause is satisfied.
          We  have found several cases  where
courts  concluded that a defendants right  of
confrontation  was  denied  when   the   live
witnesss testimony simply recapitulated  (and
sometimes vouched for) the analysis performed
by  an  absent witness.  See Commonwealth  v.
Depina,  922  N.E.2d 778, 787  (Mass.  2010);
State  v.  Locklear, 681 S.E.2d  293,  304-05
(N.C.  2009);  State v. Galindo,  683  S.E.2d
785,  787-88 (N.C. App. 2009); United  States
v.  Tran, 18 F.3d 1132, 1143 (4th Cir.  1994)
(sometimes erroneously referred to as  United
States v. Cuong).7
          On  the other hand, numerous courts
have  concluded  that a defendants  right  of
confrontation  is satisfied  when  an  expert
witness   offers   their  own   analysis   or
conclusion,   even  when  that  analysis   or
conclusion  is based on test results  derived
from testing performed by someone else.
          This principle has been applied  in
drug cases  that is, cases like Meléndez-Díaz
where   the   governments  case   rested   on
identifying a particular substance or item as
a  controlled  substance:   see  Carolina  v.
State, __ S.E.2d __, 2010 WL 103823, *2  (Ga.
App.  2010);  State v. Hough, __  S.E.2d  __,
2010 WL 702458, *5-7 (N.C. App. 2010); United
States  v. Turner, 591 F.3d 928, 933-34  (7th
Cir.  2010); and United States v.  Moon,  512
F.3d  359,  361-62  (7th  Cir.  2008),  cert.
denied, __ U.S. __, 129 S.Ct. 40, 172 L.Ed.2d
19 (2008).
          Moon,  in particular, contains  the
most  forthright presentation of  this  rule.
The Seventh Circuit declared that a reviewing
forensic chemist [is] entitled to analyze the
data  ... obtained [by another chemist], that
the  Sixth Amendment does not demand  that  a
chemist or other testifying expert have  done
the  lab  work  himself, and that  instrument
readouts are not testimonial statements.  512
F.3d at 362.
          Similarly, in cases where the trier
of  fact must ascertain the cause of someones
death,  courts have allowed medical examiners
to give their opinion concerning the cause of
death  even though that opinion was based  on
the   physical  observations  and  laboratory
results  of  an autopsy performed by  another
person:  see United States v. De La Cruz, 514
F.3d  121, 132-34 (1st Cir. 2008); People  v.
King, unpublished, 2010 WL 98693, *3-6 (Mich.
App. 2010).
          And  finally, in cases like  Vanns,
where  the  government attempts to prove  the
identity of the culprit through DNA analysis,
courts  have  allowed DNA  analysts  to  give
their opinion of the significance of DNA test
results  even  when those test  results  were
obtained  from testing performed  by  another
laboratory  analyst:  see People v.  Johnson,
915  N.E.2d  845,  851-55 (Ill.  App.  2009);
Pendergrass v. State, 913 N.E.2d 703,  707-08
(Ind. 2009); People v. Dail, 894 N.Y.S.2d 78,
80  (N.Y.  App. 2010); State v.  Mobley,  684
S.E.2d 508, 511-12 (N.C. App. 2009); State v.
López, unpublished, 2010 WL 703250, *7-8, *11-
12   (Ohio  App.  2010);  United  States   v.
Richardson,  537  F.3d  951,  960  (8th  Cir.
2008),  cert. denied, __ U.S. __,  129  S.Ct.
2378, 173 L.Ed.2d 1299 (2009).

Why we conclude that the admission of the challenged
testimony   did   not  violate  Vanns   right   of
confrontation

     If  we  analyze  Vanns case  under  the  rule
discussed in the preceding section of this opinion
that  is,  if we draw the constitutional  dividing
line  between expert testimony that  is  merely  a
conduit  for someone elses analysis versus  expert
testimony  in which the live witness offers  their
own  independent analysis  then the testimony that
Vann   challenges  in  this  appeal  was  properly
admitted.
          As   explained  above,  during  Cheryl  Dudas
testimony,   she  fully  explained  the   DNA   testing
procedures  employed  by  the  State  Crime  Lab.    In
particular, Duda explained that the final stage of  the
testing  process  was to run the DNA sample  through  a
machine   the ABI-310 Genetic Analyzer  that chemically
reads  the  genetic contents of the DNA and produces  a
printout  (in graph form) of the results.   Using  this
graph,  a  DNA  analyst  will identify  the  particular
alleles  that  are  present  in  the  tested   DNA   at
particular  locations  (or will determine  that  it  is
impossible to ascertain the identity of the alleles  at
one or more specific locations).  Then, armed with this
knowledge,  the DNA analyst will determine (1)  whether
the  sample contains DNA from only one person, or  more
than  one  person, and (2) whether the genetic  profile
found  in the DNA can be linked to the genetic  profile
of  another DNA sample (in this case, the known samples
obtained from Vann and from the victim).
          Duda further testified that, with respect  to
the  two DNA samples that were tested by Jessica Cohen,
Duda checked Cohens bench notes to make sure that Cohen
followed the proper testing protocols when she prepared
the   samples  for  testing  in  the  ABI-310   Genetic
Analyzer.    Duda  then  examined  the   test   results
themselves  the printed-out graphs produced by the ABI-
310  Genetic Analyzer  to see if she came to  the  same
conclusions  that  Cohen  did  with  respect   to   (1)
identifying the genetic profiles present in the two DNA
samples,  and  (2)  determining whether  those  genetic
profiles matched either Vann or the victim.
          Duda  then described her own analysis of  the
printed-out  test results from those two samples:   her
conclusion that the sample from the victims panty liner
failed  to  provide sufficient genetic  information  to
establish  a match with either Vann or the victim,  but
that  the  sperm  sample from the victims  body  was  a
complete match of Vanns genetic profile.
          Given this record, it is clear that Duda  was
not  merely  the  conduit for Cohens opinion.   Indeed,
Cohens opinion regarding the test results was mentioned
only  in  passing.   The jury would clearly  understand
that the opinions and analysis offered by Duda were her
own  opinions  and analysis, based on  her  independent
examination of the test results produced by the ABI-310
Genetic Analyzer.
          Because Dudas testimony is clearly admissible
under the conduit versus independent analysis rule that
we  have  derived from the case law, the sole remaining
issue  before  this Court is whether we  should  follow
this  rule   in  other  words,  whether  this  rule  is
consistent   with  the  Supreme  Courts  decisions   in
Crawford  and Meléndez-Díaz.  It is true  that  a  good
number  of appellate courts believe that this  test  is
consistent  with  the Supreme Courts interpretation  of
the  confrontation  clause.  But the  fact  that  other
courts believe this does not absolve this Court of  our
independent duty to assess the constitutionality of the
test.
          As  we are about to explain, we conclude that
the   conduit  versus  independent  analysis  rule   is
consistent   with   the  Sixth   Amendment   right   of
confrontation if  and only if  the rule is applied with
due  regard to the concerns that underlie the right  of
confrontation.
          At  the  outset, we acknowledge that  it  may
sometimes  be  difficult,  in  a  particular  case,  to
distinguish between expert testimony that is a  conduit
for  someone  elses analysis and expert testimony  that
presents  the  witnesss own independent analysis.   The
label  that  a court attaches to the experts  testimony
is,  in  fact,  only a shorthand way of expressing  the
courts  conclusion  as to whether cross-examination  of
that  one witness will satisfy the defendants right  of
cross-examination, or whether (instead) the  government
must  produce one or more additional witnesses.   Thus,
the correct categorization of a witnesss testimony will
necessarily hinge on the precise issues being litigated
and the content of the witnesss testimony.
          We  note  that one of the Supreme Courts  key
concerns  in  Meléndez-Díaz  was  the  possibility   of
mistaken,   improper,  or  even  fraudulent  scientific
testing.    The   Court  cited  one  study   of   false
convictions   that  is,  a  study  of  cases  in  which
exonerating  evidence later showed that  the  defendant
was  improperly convicted  which concluded that invalid
forensic   testimony  contributed  to   [these   false]
convictions  in 60% of the cases.  129 S.Ct.  at  2537.
As    stated   in   Justice   Scalias   lead   opinion,
[c]onfrontation  is  designed to weed  out  [both]  the
fraudulent  analyst [and] the incompetent one,  and  to
reveal   an   analysts  lack  of  proper  training   or
deficiency in judgment.  Ibid.
          In  explaining  why  Meléndez-Díaz  had  been
denied his right of confrontation, Justice Scalia noted
that  the  certificates of analysis introduced  by  the
government did not [reveal] what tests the analysts had
performed,  whether  those  tests  were  routine,   and
whether  [the interpretation of] their results required
the  exercise of judgment or the use of skills that the
analysts  may not have possessed.  Ibid.  In  addition,
cross-examination could have illuminated the  potential
sources  of  error in either the testing procedures  or
the  interpretation of the test results.  129 S.Ct.  at
2537-38.
          These,  then, are the concerns that  must  be
given  paramount  importance when a court  applies  the
conduit versus independent analysis test.  If this test
is  to  lead  to results that are consistent  with  the
Sixth  Amendment right of confrontation, a  court  must
bear  these  concerns in mind when deciding whether  an
experts  testimony  should be  categorized  as  a  mere
conduit  for another experts analysis, or whether  that
testimony  should be viewed as presenting the  witnesss
independent analysis.
          And,  at  least with regard to the  situation
presented   in  Vanns  case   i.e.,  cases  where   the
government  presents the testimony of a DNA analyst  to
establish the defendants identity as the perpetrator of
a crime  we disavow the suggestion found in some of the
cases  that  a  defendant has no right to confront  the
person  who performed the DNA testing because  the  DNA
test  results are only being introduced to explain  the
basis  for the DNA analysts opinion, rather than  being
introduced for the truth of the matter asserted.
          It is true, as a matter of technical evidence
law,  that when an expert testifies under the authority
of  Evidence  Rule 703 about the underlying information
or data that they have relied on to form their opinion,
this  underlying  information  or  data  need  not   be
independently  admissible, and  the  experts  testimony
about  the  factors  underlying their  opinion  is  not
introduced  for  the  truth of the  matters  asserted.8
          But, as a practical matter, there are times when the
experts  opinion  has essentially  no  probative  value
unless  the jury assumes the truth of some  or  all  of
this  underlying information or data.  For this reason,
when  the  underlying facts or data are  not  otherwise
admissible,  Evidence  Rule 705(c)  directs  the  trial
judge  to  prohibit  the expert from  testifying  about
these  underlying  matters  if  the  danger  that  [the
experts  testimony concerning these  matters]  will  be
used  for an improper purpose outweighs their value  as
support for the experts opinion.
          According   to  the  Commentary   to   Alaska
Evidence Rule 705(c), the danger spoken of here is  the
danger that the jury might ... use the facts or data as
the  basis  for an independent judgment  on  issues  in
[the]  case.   In other words, the danger is  that  the
jury  will  view  the  experts  testimony  about  these
underlying facts or data as proof that this information
is  true,  or  that it was derived in a  scientifically
valid manner.  See Guerre-Chaley v. State, 88 P.3d 539,
543-44 (Alaska App. 2004).
          This  danger  is  especially  acute  in   DNA
analysis  cases.   It  is  true  that  one  must   have
expertise  to make an informed judgement as to  whether
there  is  a match between the genetic profile  derived
from  testing  an  evidentiary sample and  the  genetic
profile  of  a  particular person (whether  suspect  or
victim)  derived  from a known sample.   But  the  real
probative force of the experts testimony hinges on  the
accuracy  of  the test results:  if those test  results
are  false or mistaken, then the experts opinion as  to
whether those test results match the genetic profile of
a particular person has essentially no value.
          We now use these principles to re-examine the
testimony given by Cheryl Duda in Vanns case.
          As we noted earlier, Duda fully explained the
DNA  testing procedures employed by the State Crime Lab
the process of identifying one or more genetic profiles
from  a  particular  DNA sample.  In  particular,  Duda
explained  that the final stage of the testing  process
was  to run the DNA sample through a machine  the  ABI-
310 Genetic Analyzer  that chemically reads the genetic
contents  of the DNA and produces a printout (in  graph
form) of the results.
          Duda  explained how a DNA analyst  uses  this
graph  to  identify  the particular  alleles  that  are
present  in the tested DNA at particular locations  (or
to  determine  that it is impossible to  ascertain  the
identity  of  the  alleles  at  one  or  more  specific
locations).  Then, based on these test results, the DNA
analyst  will  attempt  to determine  (1)  whether  the
sample contains DNA from only one person, or more  than
one  person, and (2) whether the genetic profile  found
in  the  DNA  can be linked to the genetic  profile  of
another  DNA  sample (in this case, the  known  samples
obtained from Vann and from the victim).
          In  particular, Duda testified that after she
obtains   the  print-outs  from  the  ABI-310   Genetic
Analyzer, she uses these graphs to identify the genetic
profiles  contained in the DNA samples,  and  then  she
compiles this information in a chart that allows her to
compare   the   genetic   profiles   and   make   [her]
interpretations.  Duda explained that it was  important
for  her to preserve the graph results from the Genetic
Analyzer,  as  well  as  the  chart  summarizing  those
graphs,  so that a second DNA analyst could review  her
work   and   independently  decide  whether   she   had
accurately   interpreted  the   test   results.    Duda
described   this  peer  review  process  as  absolutely
essential in our laboratory.
          After  Duda  testified about her analysis  of
the  three DNA samples that she personally tested, Duda
then  turned  to  the  two samples that  her  colleague
Jessica Cohen tested.  Duda explained that she had seen
(and  had signed) Cohens report before it left the lab,
because  she  was the peer reviewer of Cohens  results.
Duda  testified  that she examined the report  to  make
sure  that  there  was  no indication  that  Cohen  had
deviated  from the Crime Labs testing protocols.   Then
Duda  [went]  through all of [Cohens]  electronic  data
that  is, the printed-out test results from the ABI-310
Genetic Analyzer  and made sure that [she, i.e.,  Duda]
came  to the same [genetic] typing results that [Cohen]
did.
          Duda explained that her peer review of Cohens
analysis  was structured in such a way as to produce  a
second,  independent  analysis of the  machine  results
that the Crime Labs review procedures were designed  to
make  sure  that  each of us comes  up  with  the  same
findings  [independently] before a DNA analysis  report
is   approved  for  release.   For  that  reason,  Duda
independently  assessed Cohens work  product  from  the
point where the instrument spit[] out the data for us.
          Duda  then described her own analysis of  the
printed-out  test  results from the  two  samples  that
Cohen tested.  Duda testified that, in her opinion, the
sample  from the victims panty liner failed to  provide
sufficient  genetic information to  establish  a  match
with  either  Vann or the victim, but  that  the  sperm
sample  from the victims body was a complete  match  of
Vanns genetic profile.
          Given this record, we conclude that the State
was not required to present Jessica Cohen as a witness,
and  that  Vanns right of confrontation  was  satisfied
when  he  was  given the opportunity  to  cross-examine
Cheryl Duda.  By cross-examining Duda, Vann had a  fair
opportunity  to  explore the type of testing  that  was
performed  and the procedures that were  used  in  that
testing.   This  cross-examination also gave  Vann  the
opportunity  to  identify  or highlight  any  potential
sources  of error in the testing and any potential  for
misinterpretation  of the test results.   Finally,  and
perhaps  most  important,  it  was  clear  from   Dudas
testimony that the opinions and conclusions she offered
to  the jury were her own interpretation of the printed
test results produced by the machine.
          It  is  true  that,  with  regard  to  Cohens
preparation of the DNA sample and Cohens act of placing
or  introducing  that sample into the  ABI-310  Genetic
Analyzer, all that Duda could say was that Cohens bench
notes   showed  no  deviation  from  the   Crime   Labs
protocols.   There was the potential,  at  least,  that
Cohen   had   either  inadvertently  or   intentionally
deviated  from the prescribed protocols, but  then  had
written her bench notes as if the proper procedures had
been followed.
          We  do  not  say  that  this  possibility  of
testing  error  should  be  ignored,  or  that  it   is
necessarily insignificant.  But we believe that this is
the  type  of  problem  that  the  Meléndez-Díaz  court
intended to cover in footnote 1 of its opinion:
     
          Contrary  to  the  dissents  suggestion,
     post, [129 S.Ct.] at 2544-2545, 2546 (opinion
     of  Kennedy,  J.), we do not  hold  ...  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 prosecutions case.   While  the
     dissent   is   correct  that  [i]t   is   the
     obligation  of the prosecution  to  establish
     the  chain  of custody, post, at  2546,  this
     does not mean that everyone who laid hands on
     the  evidence must be called.  As  stated  in
     the   dissents  own  quotation,  ibid.,  from
     United  States  v. Lott, 854  F.2d  244,  250
     (C.A.7  1988), gaps in the chain [of custody]
     normally  go  to the weight of  the  evidence
     rather than its admissibility.  It 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. Additionally, documents prepared in the
     regular  course of equipment maintenance  may
     well qualify as nontestimonial records.   See
     infra, at 2550-2551, 2552.
     
     Meléndez-Díaz,   129  S.Ct.   at   2532   n.1
     (emphasis in the original).
          In other words, there is always the
possibility   that,  during  the   procedures
leading  up to the actual testing  of  a  DNA
sample  in  the ABI-310 Genetic Analyzer  (or
equivalent    device),   the    sample    was
misidentified  or contaminated or  improperly
prepared for testing.  But these matters fall
within  the  rubric of Evidence Rule  901(a),
which requires the authentication of physical
evidence  in criminal cases if that  evidence
is      susceptible     to      adulteration,
contamination,  modification,  tampering,  or
other   changes   in  form  attributable   to
accident,  carelessness, error[,]  or  fraud.
(This  requirement is often  referred  to  as
chain of custody.)
          As   noted   in  the  Meléndez-Díaz
footnote, and as confirmed by Alaska cases on
this  subject,  Evidence Rule  901  does  not
require  the  State  to bring  forward  every
witness who had custody of, or contact  with,
the  physical evidence in question, nor  does
it  require the State to affirmatively negate
every  conceivable possibility of mishandling
or  tampering.9  Under Alaska case  law,  the
States failure to produce Jessica Cohen as  a
witness   to   describe  her   handling   and
preparation  of the DNA sample  might  affect
the  weight or credibility of Dudas  analysis
of  the test results, but it does not bar the
admission of Dudas testimony on this subject.
And  we  interpret the Meléndez-Díaz footnote
to mean that the confrontation clause did not
require the State to produce Jessica Cohen to
testify  about her pre-testing  handling  and
preparation of the DNA sample, so long as the
analysis of the test results was performed by
Duda,  a  witness who did appear  before  the
trier  of  fact  and  was subject  to  cross-
examination.

Whether  the  prosecutors comment on Vanns  refusal  to
voluntarily  submit to a physical examination  requires
reversal of Vanns convictions

          Vann  raises one additional claim  of  error.
In  the  prosecutors opening statement at Vanns  trial,
the   prosecutor  told  the  jury  that,   during   the
investigation  of  the  case, the  State  obtained  two
search  warrants  one warrant to search Vanns  vehicle,
and  the  other warrant requiring Vann to submit  to  a
physical examination for evidence pertinent to a charge
of sexual assault.  The prosecutor then added that Vann
had refused to go with the state troopers to submit  to
the  physical examination until he was served with  the
warrant:
     
          Prosecutor:   Youre going to  hear  that
     Mr.  Vann, even with the assurances  of  [two
          state troopers, who] told him what was going
     on   theres a sexual assault investigation in
     Seward, theyd like you to come down for  this
     examination  and ... he repeatedly refused to
     [go  with them] until it essentially got down
     to the point where hes confronted with ...  a
     court order that says you have to do it,  and
     you  will  go.  And eventually  he  does  go,
     after  repeated refusals to submit  to  [the]
     examination.
     
     Vanns   attorney  did  not  object   to   the
     prosecutors  comments at the  time,  and  the
     trial  judge  did not sua sponte caution  the
     prosecutor or issue a curative instruction.
               This  issue arose again during  the
     testimony   of  the  principal  investigating
     officer.     On   cross-examination,    Vanns
     attorney  had  the officer  confirm  that  he
     obtained  a  search warrant to gather  bodily
     evidence  from  Vann, and  that  obtaining  a
     warrant  in cases like this was routine.   On
     redirect,  the  prosecutor  tried  to  elicit
     testimony that the police do not always  need
     to   get   a   warrant   that  sometimes   an
     individual  who  is under investigation  will
     cooperate  and  voluntarily  submit   to   an
     examination without a warrant.
          Specifically,    the     prosecutor
attempted to ask the officer, [I]n fact,  you
dont always have to get a warrant, right?  If
the   individual  ...  .   But   before   the
prosecutor could finish this question,  Vanns
attorney  objected.  A largely  indiscernible
bench  conference  ensued.   When  the  bench
conference    concluded,    the    prosecutor
announced  that  he had no further  questions
for the officer.
          Later, just before the testimony of
a    state    trooper   involved    in    the
investigation,  the prosecutor  informed  the
trial  judge  that  he intended  to  ask  the
trooper whether Vann voluntarily submitted to
the  physical  exam.  The  prosecutor  argued
that Vanns refusal to submit voluntarily  was
relevant   because   it   demonstrated    his
consciousness of guilt.  Vanns attorney again
objected,  and the trial judge sustained  the
defense  attorneys objection;  that  is,  the
trial judge barred the prosecutor from asking
the trooper about Vanns refusal to submit  to
the  physical  examination voluntarily.   The
judge  ruled  that  this  proposed  testimony
would  infringe Vanns Fifth Amendment rights,
and  that  any potential probative  value  of
this evidence was outweighed by its potential
for unfair prejudice.
          On  appeal,  Vann argues  that  his
conviction should be reversed because of  the
prosecutors comment during opening  statement
that  Vann  declined to submit to a  physical
examination until he was confronted with  the
search warrant.  Vann concedes that when  the
prosecutor attempted to introduce  this  fact
into  evidence (through the testimony of  the
two  law  enforcement  officers),  the  trial
judge sustained both of Vanns objections  and
refused  to  let the prosecutor  elicit  this
testimony.   Vann  further concedes  that  he
made   no   objection  when  the   prosecutor
mentioned   this   matter  in   his   opening
statement.  Vann nevertheless argues that his
conviction must be reversed because the trial
judge never directed the jury not to consider
the  [prosecutors  comment]  in  ...  opening
statement  that  Mr.  Vann  did  not   submit
voluntarily to the exam.
          Because  Vanns  attorney  made   no
objection to the challenged remark, Vann must
now show plain error.  Vann has satisfied the
first  part of the test for plain error:   it
was  plainly  improper for the prosecutor  to
ask  the  jury to infer Vanns guilt from  the
fact  that Vann insisted on his right not  to
voluntarily   cooperate   in   the   physical
examination   that  the  police   wished   to
conduct.10
          But  the  obviousness of the  error
cuts  both  ways here.  As we have explained,
the defense attorney objected both times when
the  prosecutor attempted to elicit testimony
(through the two law enforcement officers) of
Vanns  refusal to voluntarily submit  to  the
examination.   This shows  that  the  defense
attorney  was well aware of the law  on  this
point;  in other words, the error was obvious
to him.
          After the trial judge sustained the
defense  attorneys objections, it  was  clear
that  the  trial  judge  concurred  with  the
defense  attorney that this sort of  evidence
was  not  admissible.   At  that  point,  the
defense attorney might have sought to  remedy
the  objectionable portion of the prosecutors
opening  statement by asking the trial  judge
to  give a curative instruction to the  jury:
an  admonition that Vann had a constitutional
right  to  insist  on  a  warrant  before  he
submitted  to  the physical examination,  and
that  it  would be improper for the  jury  to
          draw any adverse inference from the fact that
Vann chose to exercise this right.
          But  Vann  never  asked  the  trial
judge  for this type of instruction,  or  for
any  other  relief  to cure  the  prosecutors
improper  remarks  during opening  statement.
Instead,  Vann  waited until this  appeal  to
present this claim as a reason to reverse his
convictions.
          Under  Alaska law, when a defendant
presents   a   claim  of  plain  error,   the
defendant  must  negate the possibility  that
their  attorneys  failure to  make  a  timely
objection in the trial court was the  product
of a tactical decision.11  Moreover, when the
record  is silent or ambiguous on this point,
courts  apply a presumption that the  defense
attorneys   action   (or,   more   precisely,
inaction) was tactical.12
          As we noted earlier, Vanns attorney
elicited  testimony  from  the  States   lead
investigator  that it was routine  to  get  a
search warrant for a physical examination  in
cases  like  this,  and the defense  attorney
prevented   the  prosecutor  from   eliciting
evidence   that  suspects  often  voluntarily
submitted to such examinations.  The  defense
attorney may have concluded that this  was  a
sufficient response to the false step in  the
prosecutors opening statement.
          In addition, as we have also noted,
there  is  a  distinct possibility  that  the
defense attorney made a tactical decision  to
refrain  from asking the trial  judge  for  a
cautionary instruction or some other type  of
relief.
          We  do not draw this inference from
the fact that the defense attorney failed  to
object  when the prosecutor made the improper
comment   during   his   opening   statement.
Rather,  the  inference  of  tactical  choice
arises from occurrences later at Vanns trial.
As  we  have  explained, when the  prosecutor
attempted  to  introduce  evidence  of  Vanns
refusal   to   voluntarily  submit   to   the
examination, the defense attorney immediately
objected   and  was  successful  (twice)   in
blocking  the  State  from  introducing  this
evidence.    This  shows  that  the   defense
attorney  was  well aware that this  evidence
was improper, and that the attorney was quite
capable  of  asserting Vanns rights  on  this
issue.
          One  might suppose that the defense
attorney,    having   twice    blocked    the
          prosecutors efforts to introduce testimony on
this point, would then ask the trial judge to
take  action  to  remedy the  fact  that  the
prosecutor  had promised during  his  opening
statement to produce this evidence.  And,  as
we  have explained, the problem was seemingly
easy  to cure with a jury instruction.  Given
these  circumstances, the  defense  attorneys
failure  to seek relief from the trial  judge
could  well  have been tactical:  either  the
defense  attorney decided that  it  would  be
counter-productive to ask the trial judge  to
take  action that would remind the jurors  of
the  objectionable portion of the prosecutors
opening  statement, or the  defense  attorney
conceivably chose to leave this issue on  the
table  as  a  potential  ground  for  appeal,
rather  than asking the trial judge  to  take
curative   measures  before  the   case   was
submitted to the jury.
          Moreover, we conclude that Vann has
failed  to  satisfy the final  element  of  a
claim  of plain error:  proof that the  error
was so manifestly prejudicial to the fairness
of  the  trial  that failure to  correct  the
error would perpetuate manifest injustice.13
          Here, the error consists of a small
portion  (two sentences) of a lengthy opening
statement that was merely the opening act  of
an  eight-day  trial.   When  the  prosecutor
attempted  to introduce evidence  to  support
this   statement,  the  defense  successfully
blocked the attempt.  Thus, the jury heard no
evidence that Vann had declined to submit  to
the  examination, and the prosecutor did  not
mention this subject during his summation  to
the jury at the end of the trial.
          Moreover,    the    jurors     were
instructed  (in  Jury  Instruction   37)   to
disregard  the factual assertions of  counsel
to  the extent that those assertions were not
supported by the evidence:

[A]rguments  of counsel are not evidence  and
cannot  be  considered as such.  It  is  your
duty   to  give  careful  attention  to   the
arguments of counsel, if they are based  upon
the evidence and upon the law as given to you
by  me  in these instructions.  But arguments
of  counsel, if they depart from the facts or
from the law, should be disregarded.

          Vann  argues that even  though  the
trial  judge sustained his objection  to  the
prosecutors uncompleted question, [I]n  fact,
          you dont always have to get a warrant, right?
If   the   individual  ...  .,   the   jurors
nevertheless heard the prosecutors incomplete
question,  and  thus the  jurors  would  have
assumed  (from  the prosecutors  words)  that
defendants  sometimes voluntarily  submit  to
this type of examination.
          But Vanns argument ignores the fact
that   the  trial  judge  gave  a  cautionary
instruction  to  the jurors  addressing  this
very  issue.  That instruction read:  When  I
sustain  an objection to a question addressed
to a witness, you must disregard the question
entirely, and may not draw any inference from
the  wording of it, nor speculate as to  what
the  witness would have said if permitted  to
answer the question.
          For   all  of  these  reasons,   we
conclude that the prosecutors comment, albeit
improper, does not rise to the level of plain
error, and thus does not require reversal  of
Vanns convictions.

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1  Citing  Crawford v. Washington, 541 U.S. 36, 51;  124  S.Ct.
1354, 1364; 158 L.Ed.2d 177 (2004).

2 See the first sentence of the Commentary to Alaska Evidence
Rule 703.

3  Stephen  A. Saltzburg, Michael M. Martin, and  Daniel  J.
Capra, Federal Rules of Evidence Manual (9th ed. 2006), Vol.
3, p. 7034.

4 Ibid.

5See, for example, the Associated Press story dated March 23,
2010, written by Jean Ortiz, reporting that the head of
the  Douglas  County,  Nebraska  forensic  crime  scene
investigation unit was convicted of evidence  tampering
for  plant[ing] blood from a slaying victim  in  a  car
linked to two innocent suspects[,] to bolster the  case
against them.  The full text of this story is available
at:

http://seattletimes.nwsource.com/html/nationworld/2011417037_ap
uscsibloodevidence.html
6See, e.g., People v. Green, unpublished, 2010 WL 822583,
*3-4  (Cal.  App. 2010); People v. Colón,  unpublished,
2010  WL  612245,  *17-18 (Cal. App. 2010);  People  v.
Gutierrez, 99 Cal.Rptr.3d 369, 375-78 (Cal. App. 2009);
People  v.  Rutterschmidt, 98 Cal.Rptr.3d  390,  412-13
(Cal. App. 2009).

But see People v. Jones, unpublished, 2010 WL 797605, *6-9
(Cal.  App. 2010), in which the court declared that  it
was  following  Geier, but the court  abandoned  Geiers
rationale.  Instead, the court re-interpreted Geier  as
standing for the rule that we adopt here  the rule that
a  supervisor from a lab that conducted DNA  tests  can
render  her  own independent opinion ... based  on  the
results  of lab tests conducted by an analyst  employed
at  the  lab, so long as the supervisor is  subject  to
full  cross-examination by the defendant.  Jones,  2010
WL  797605 at *8.  This same re-interpretation of Geier
was  employed  in  In  re T.F.,  unpublished,  2010  WL
926069, *4 (Cal. App. 2010).

And see People v. Lopez, 98 Cal.Rptr.3d 825 (Cal. App. 2009),
and  People  v.  Dungo, 98 Cal.Rptr.3d 702  (Cal.  App.
2009), both holding that Meléndez-Díaz overruled Geier.

7The defendant in this case was a doctor named Tran Trong
Cuong.  In Southeast Asian names, the family name comes
first.  Thus, the defendant was Dr. Tran, and the  case
name  is  properly  United States  v.  Tran.   However,
several courts have cited this case as United States v.
Cuong  interpreting the defendants name as if it were a
European name.

8 See Guerre-Chaley v. State, 88 P.3d 539, 541-42 (Alaska App.
2004);  Broderick  v. Kings Way Assembly of  God,  808  P.2d
1211, 1216 (Alaska 1991).

9See, e.g., Wright v. State, 501 P.2d 1360, 1372 (Alaska
1972);  Houston-Hult v. State, 843 P.2d  1262,  1266-67
(Alaska App. 1992).

10  See Padgett v. State, 590 P.2d 432, 434-35 (Alaska 1979);
Bargas v. State, 489 P.2d 130, 132 (Alaska 1971).

11  Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993),
citing Massey v. State, 771 P.2d 448, 453 (Alaska  App.
1989) (unless the record precludes the possibility that
counsels  actions may have been tactical, a finding  of
plain error is rarely appropriate).

12  Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).

13  See Hosier v. State, 1 P.3d 107, 112 (Alaska App. 2000);
Potts  v. State, 712 P.2d 385, 390 (Alaska App.  1985);
Roberts v. State, 680 P.2d 503, 507 (Alaska App. 1984).

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