State v. Elkins

1

No. 101,300

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CORY T. ELKINS,
Appellant.


SYLLABUS BY THE COURT

1.
Under the facts presented, the entry of the defendant's DNA profile into the
national database known as the Combined DNA Indexing System (CODIS) was not a
testimonial act which implicated the defendant's right of confrontation under the Sixth
Amendment to the United States Constitution as discussed in Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

2.
Under the facts presented, the district court did not abuse its discretion in refusing
to grant a mistrial for the State's failure to produce during discovery an expert witness'
handwritten notes which the expert witness referred to during her testimony.

3.
Under the facts presented, the district court did not abuse its discretion in refusing
to grant a mistrial for the State's witness' one-time reference in her testimony to the
"offender index" in the CODIS database. Further, the court's failure to give the jury a
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limiting instruction with respect to this reference to the "offender index," when no
instruction was requested, did not constitute clear error; that is, it did not alter the
outcome of the trial.

4.
Under the facts presented, the State did not engage in prosecutorial misconduct by
attempting to shift the burden of proof to the defendant when the prosecutor asked the
defendant's expert witness whether he had attempted to conduct any retesting to confirm
his results.

Appeal from Douglas District Court; MICHAEL J. MALONE, judge. Opinion filed November 19,
2010. Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Nicole Romine, assistant district attorney, Megan McGinnis, legal intern, Charles E. Branson,
district attorney, and Steve Six, attorney general, for appellee.

Before MARQUARDT, P.J., MCANANY and CAPLINGER, JJ.

MCANANY, J.: Cory Elkins was convicted in May 2008 of multiple counts of rape
and aggravated criminal sodomy as a result of attacks in Lawrence on J.L. in 1994 and on
E.L. in 1995. Neither victim could identify her attacker. However, there were a number
of similarities regarding the manner in which the two attacks occurred. Both victims were
examined at the hospital and DNA samples were collected.

The Kansas Bureau of Investigation (KBI) analyzed the samples and entered the
DNA profiles into the national database known as the Combined DNA Indexing System
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(CODIS). In 2006, CODIS generated a match between E.L.'s case and J.L.'s case,
indicating that the attacker in each case was likely the same person. Elkins had been
incarcerated in California, which resulted in his DNA profile being entered into the
database. CODIS generated a match between Elkins and the J.L. and E.L. samples.

The KBI informed Lawrence detectives about the DNA matches. The detectives
obtained a DNA sample from Elkins in California. The KBI tested the sample and
confirmed that Elkins' DNA profile matched the DNA profile of the attacker in both
attacks. Elkins was then charged with rape and aggravated criminal sodomy of both J.L.
and E.L.

Before trial, Elkins moved in limine to exclude evidence about the CODIS match
linking him to the attacks. The trial court denied the motion but limited the State to
presenting the CODIS evidence only for the purpose of explaining the actions the
investigators took before arresting Elkins.

It was discovered before trial that during her analysis of the DNA samples the
KBI's DNA analyst, Sindey Schueler, had contaminated samples from E.L.'s case with
some of Schueler's own DNA. Schueler testified at trial that the contamination occurred
during an examination in 1996, that the contamination was accidental, and that the
contamination did not invalidate the result of her test. Her test indicated that Elkins
contributed DNA to the samples taken from E.L. Schueler explained that her own DNA
was not an alternative male DNA source. Because Elkins was the only identifiable male
contributor in the contaminated E.L. slides, Schueler explained, her identification of
Elkins' DNA was still reliable.

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In the course of her testimony, Schueler described locating Elkins' DNA profile on
the CODIS "offender index." Elkins objected and moved for a mistrial. The trial court
denied the motion but ordered the State to instruct Schueler to refrain from using the term
"offender" in describing the database. Thereafter, no one referred to CODIS as the
"offender index" for the remainder of the trial. No limiting instruction was requested or
given.

Finally, during the State's cross-examination of Dean Stetler, Elkins' DNA expert,
Stetler testified that his findings were based on his review of the records as opposed to
any testing of samples. He stated that on occasion he did testing in his lab but did not
have any written quality assurance protocols. He testified, "In a research lab, you always
have the luxury of being able to repeat an analysis. So everything is repeated at least
twice. That's our quality assurance. If we come up with the same answer more than once,
we can be assured that our answer is valid." The prosecutor then asked Stetler if he asked
to retest any of the samples in either E.L.'s or J.L.'s case.

Elkins objected and moved for a mistrial, contending that the question improperly
shifted the burden of proof onto the defendant. The court overruled the objection and
refused to grant a mistrial. Stetler then answered the question, stating that he did not
request samples for retesting because from his review of the documents "there wasn't
anything left to retest of the critical samples."

The jury convicted Elkins on all counts, and the court denied his request for a new
trial. Elkins appeals.

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Right of Confrontation

Elkins argues that allowing Schueler to testify about the CODIS "hit" linking him
to the crimes violated his Sixth Amendment right to confrontation. Elkins argues that the
"hit" was testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004). He compares his case to the KBI drug reports at issue in State v.
Laturner, 289 Kan. 727, 218 P.3d 23 (2009). Elkins asserts that the confrontation
violation occurred here because he was not able to cross-examine the CODIS analyst
from California who entered his DNA into the database. He argues that even though the
State was prohibited from using the term "match" to describe the database's connection
between Elkins and the Lawrence rapes, the reference to a "hit" was readily perceived by
the jury as the functional equivalent.

Elkins argues that the confrontation violation was not harmless error because the
State used the CODIS match to bolster or corroborate Schueler's analysis, which was not
credible because of the contamination problem.

Elkins' confrontation argument against the CODIS "hit" testimony was presented
to the trial court in Elkins' motion in limine and again at trial in objections to the
admission of testimony. We review these trial court rulings for any abuse of discretion.
See State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002). We examine de novo
the legal issue of whether admission of the CODIS evidence violated Elkins' right of
confrontation. See State v. Appleby, 289 Kan. 1017, 1054-55, 221 P.3d 525 (2009).

There was extensive testimony from both sides on the DNA evidence. The
witnesses providing that testimony were available for extensive cross-examination.
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Myrl Roberts, a nurse at Lawrence Memorial Hospital, testified about the
procedure for taking and preserving the victim's clothing and obtaining DNA swabs from
J.L. and preserving the material obtained on slides. Barbara Parker, another nurse at
Lawrence Memorial Hospital, testified to the procedure for collecting E.L.'s clothing and
obtaining DNA samples from E.L.

Laura Kwart worked for the KBI doing screening of rape kits in order to identify
seminal fluid. She testified to the procedures she used to extract sperm cells from samples
and to preserve the results.

Sindey Schueler, the supervisor who oversees DNA testing by the KBI, testified
about the procedure for extracting DNA from material collected when a victim is
examined at the hospital following a rape. She did the DNA extraction and analysis on
samples from both J.L. and E.L.

Schueler testified that seminal fluid was found on an item of J.L.'s clothing, a chair
pad, and a washcloth. In April 2004, she conducted a DNA extraction from the retained
evidence samples. In February 2006, she put the DNA profiles she obtained from J.L. in
this extraction process into the CODIS database "to see if a possible investigative lead
could be generated." As a result, Schueler obtained a "hit"; that is, the DNA profiles from
the J.L. specimens led to another sample in the database: the DNA profile from E.L.
which Schueler had entered into the database earlier.

Schueler testified that the DNA profile obtained in E.L.'s case came from seminal
fluid identified on the vaginal and rectal swabs obtained at the hospital following her
attack. Schueler extracted the DNA from these swabs and generated a DNA profile,
which she entered into the CODIS database.
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Apparently, at some point Elkins' DNA was entered into the CODIS database
following his arrest on unrelated charges in Sacramento, California.

Schueler testified that in November 2006, she obtained another "hit" on the
CODIS database which provided Elkins' name as a possible investigative lead in both
J.L.'s case and E.L.'s case. Lawrence Police Detective Lance Flachsbarth testified that his
police department was notified that "a suspect was developed" through DNA in both rape
cases, and Flachsbarth went to California to obtain a DNA sample from Elkins.
Flachsbarth obtained the sample using a cotton swab and delivered it to the KBI.

Schueler testified that she received the sample from Flachsbarth and conducted the
procedures to extract Elkins' DNA and generate a genetic profile. She compared the
Elkins profile to the male DNA sample obtained from J.L.'s clothing and the chair pad.
She testified that Elkins was the likely source of the DNA found on the chair pad. The
chance that Elkins is not the source is 1 in 131 billion.

Elkins claims his confrontation rights were violated when he did not have an
opportunity to examine the person in California who took his DNA sample and entered it
in the CODIS database.

With that, we turn to our Supreme Court's decision in Appleby. Appleby involved
the rape and murder of a young college student who worked at a swimming pool in
Leawood. Appleby was apprehended in Connecticut where the police obtained a DNA
sample from him. DNA testing by two crime labs matched Appleby's DNA to DNA taken
from the victim's body. Our Supreme Court considered whether the admission of
evidence from the CODIS database violated Appleby's confrontation rights. The court
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stated:

"We first note that DNA itself is physical evidence and is nontestimonial. Wilson v.
Collins, 517 F.3d 421, 431 (6th Cir. 2008); United States v. Zimmerman, 514 F.3d 851,
855 (9th Cir. 2007); see also Schmerber v. California, 384 U.S. 757, 765, 86 S. Ct. 1826,
16 L. Ed. 2d 908 (1996) (holding that 'blood test evidence, although an incriminating
product of compulsion, [is] neither . . . testimony nor evidence relating to some
communicative act or writing' and is therefore not protected by the Fifth Amendment).

"Placing this physical evidence in a database with other physical evidence—i.e.,
other DNA profiles—does not convert the nature of the evidence, even if the purpose of
pooling the profiles is to allow comparisons that identify criminals. . . . The database is
comprised of physical, nontestimonial evidence." Appleby, 289 Kan. at 1057-58.

The cases relied upon in the court's opinion in Appleby relate to whether a
defendant's Fifth Amendment right not to be compelled to testify against himself is
violated when the defendant is compelled to give a saliva or blood sample for the purpose
of preserving the defendant's DNA. As the court noted in Schmerber, "blood test
evidence, although an incriminating product of compulsion, [is] neither . . . testimony nor
evidence relating to some communicative act or writing." 384 U.S. at 765. As noted in
Wilson, "a DNA sample is analogous to a photograph or fingerprint, another form of
physical evidence identifying an individual that falls outside the scope of Fifth
Amendment protection." 517 F.3d at 431.

Elkins complains that he had no confrontation opportunity with respect to the
testimony of a CODIS "hit" because the California police or prison person who took his
DNA sample is not available for cross-examination. He cites State v. Henderson, 284
Kan. 267, Syl. ¶ 3, 160 P.3d 776 (2007), for the proposition: "If the declarant is
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unavailable to testify at trial, and the declarant's statement is testimonial, then the
testimony is not admissible unless the defendant had a prior opportunity to cross-examine
the declarant."

This begs the question: who is the declarant Elkins had no opportunity to
confront? There was no testimony at trial about any statement or declaration by any
California official. In fact, there was no trial testimony whatsoever about how Elkins'
DNA got into the CODIS database. Further, if the act of Elkins allowing a DNA swab to
be taken from him is not testimonial, the act of entering Elkins' DNA information into the
database is likewise nontestimonial.

The CODIS database consists of two elements: (1) the data contained in the
database, and (2) the computer program and the algorithms by which the computer
manipulates the data so as to enable it to recognize and to report similar items of datum.
In Appleby, the defendant claimed the court erred in admitting into evidence the
computer-generated report which indicated that there was only a one in two quadrillion
probability of randomly selecting someone in the population other than Appleby whose
DNA would match the DNA found on the victim's garment. Thus, Appleby's challenge
was to the computer program at work in the CODIS database. However, the court in
Appleby made clear not only that the statistical calculations obtained from CODIS are not
testimonial, but that the DNA data in the database itself are not testimonial. 289 Kan. at
1058.

An analogue to the present issue can be expressed in the following scenario. The
prosecution witness testifies that he saw the defendant at the scene and looked at the
clock on the wall to determine it was 2 p.m. The defendant objects on confrontation
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grounds, arguing that if this testimony is to be admitted, the defendant is entitled to
examine (1) a clockmaker to determine if the gears and levers in the clock were working
properly so that the clock could measure time correctly, and (2) the person who last set
the clock to determine if the clock was set for the correct time. The gears and levers in
the clock mechanism move to produce an output that consists of the hands of the clock
being in a particular position. This is analogous to the CODIS computer program that
generates "hits" and the statistical probabilities that are the output of the database. The
person who last set the clock and thereby entered the data (the then current time), which
the gears and levers of the clock manipulate to determine the time at a later event, is
analogous to the California official who entered Elkins' DNA into the system.

Appleby makes clear that neither is the product of a testimonial declaration. Elkins
would require the production of the person who set the clock before the admission of
testimony about the time. In oral argument, his appellate counsel conceded that this
would be Elkins' position in this analogous situation. Why stop there? By what standard
did the clock-setter set the clock? We had better get testimony about the reference clock
used to set the clock as well, maybe going back to the United States Master Clock
maintained by the United States Naval Observatory.

The court in Appleby recognized "the database and the statistical program are
accepted sources of information generally relied on by DNA experts." 289 Kan. at 1058.
We conclude that the right of confrontation does not extend to the person who entered
Elkins' DNA profile in the CODIS database.

Elkins' reliance on State v. Laturner, 289 Kan. 727, is unfounded. In Laturner, our
Supreme Court held that K.S.A. 22-3437 violated the Confrontation Clause because the
statute allowed the State to introduce into evidence a certified KBI drug analysis report
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without calling the analyst to testify. The court found that the reports contained assertions
of fact by trial witnesses who normally would be required to testify as to their
conclusions. The drug analysis certificates were therefore "'functionally identical to live,
in-court testimony, doing "precisely what a witness does on direct examination."'" 289
Kan. at 734.

In our case, the declaration that Elkins claims to be testimonial is the report of the
CODIS database that there is a "hit." There is no suggestion that this is the functional
equivalent of the live testimony of the California official. No one has ever claimed that
the California official would, or could, testify that there was a "hit" between Elkins' DNA
profile and the profile of some other entry in the CODIS database. That was the work of
CODIS. Schueler, who testified to the "hit," was in court and available for cross-
examination. Laturner does not apply.

Further, even if the right of confrontation extended as far as Elkins claims, he fails
to show how he was harmed by the inability to cross-examine the unknown California
official. Detective Flachsbarth testified about collecting a DNA sample from Elkins and
returning it to Schueler at the KBI, who testified about extracting the DNA sample and
confirming that it matched DNA already collected. Both Flachsbarth and Schueler were
available for cross-examination. Elkins chose not to cross-examine Flachsbarth but
extensively cross-examined Schueler. Elkins questioned Schueler about possible
contamination, but she explained that the contamination did not affect the accuracy of her
analysis. Elkins' expert, Stetler, opined that Schueler might have cross-contaminated the
J.L. and E.L. samples with DNA from another source. Elkins fails to show that this
defense had anything to do with the collection of Elkins' DNA in California. The jury
resolved the battle of the experts in favor of the State. Elkins fails to suggest how the
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outcome would have been any different had Schueler's statement about the CODIS "hit"
not been received into evidence.

We find no error by the district court in admitting testimony that a CODIS "hit"
occurred.

Pretrial Discovery Requests

Elkins claims the State failed to turn over vital discovery before trial. He requested
documentation regarding the contamination incident, and the State apparently turned over
all the KBI documents it possessed before trial. However, during Schueler's testimony,
she referred to previously undisclosed handwritten notes on the envelope which
contained E.L.'s contaminated DNA slides in testifying that the contamination likely
occurred in 1996. Elkins moved for a mistrial. The trial court denied the motion.

Elkins argues that failing to disclose the envelope notes warranted a mistrial
because his DNA expert, Stetler, testified that his review of the 1996 analysis of the
material in E.L.'s case revealed neither Elkins' DNA nor evidence of contamination.
Stetler concluded that any contamination must have occurred in 2004 when the material
was tested again because Schueler handled the J.L. and E.L. material on the same day in
2004. Because Schueler's 1996 notes contradicted Stetler's cross-contamination
conclusions, Elkins argues that the State's failure to disclose the notes undermined his
theory of defense. He concludes that it was an abuse of discretion for the district court to
deny his motion for a mistrial under these circumstances.

Elkins overstates the effect of Schueler's notes on Stetler's testimony. Schueler
justified her assertion that she contaminated E.L.'s slides in 1996 by relying on notes she
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had written on the evidence envelope. However, Elkins' expert opined that Schueler must
have caused the contamination in 2004, not in 1996, notwithstanding the envelope
notation in 1996. Schueler's note in 1996 did not undermine Stetler's theory that Schueler
contaminated the E.L. slides with material from the J.L. case in 2004, and he offered a
rebuttal to Schueler's claim that she had examined the slides in 1996. We find no abuse of
discretion in the court's denial of a mistrial with respect to this evidence.

Offender Index

As noted earlier, in her testimony Schueler stated that Elkins' DNA profile showed
up on the "offender index" in the CODIS database. Elkins argues that this constituted
K.S.A. 60-455 evidence of other crimes. Further, the district court failed to provide a
limiting instruction to the jury regarding how this evidence could be used.

Schueler testified that the profile from the J.L. case hit to a "sample" in the CODIS
"offender index." She then clarified that the CODIS hit was an investigative lead. The
name associated with that lead was Cory Elkins, and she forwarded that lead to Lawrence
detectives so they could collect Elkins' DNA for further testing. Schueler was never
asked to explain what the offender index was or how or why a sample would be included
in the index. There was no testimony that the index was limited to persons who were
perpetrators of crimes. The jury was not told that Elkins had a criminal history.

The reference to an offender index was an isolated event that was never repeated
in the trial. We find no abuse of discretion in the district court not granting a mistrial for
this bit of testimony. Because no limiting instruction was requested, we apply the clear
error standard to the failure to give a limiting instruction. Given the substantive evidence
14
regarding Elkins' DNA, we conclude that the failure to give a limiting instruction did not
alter the outcome of the trial. See State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004).

Prosecutorial Misconduct

Next, Elkins claims that in cross-examining Stetler, the prosecutor improperly
attempted to shift the burden of proof to the defendant when the prosecutor asked Stetler
whether he had attempted to conduct retesting to confirm his results.

We fail to see any merit in this claim. Nothing about the exchange between Stetler
and the prosecutor involved burden shifting. Stetler suggested that the best practice for
DNA testing was to double-check results, and he testified that the State did not follow
this best practice. In cross-examination the prosecutor asked Stetler to admit that he did
not follow his own best practice recommendation. Stetler explained that he did not follow
the practice he espoused because Schueler had already used up any DNA material he
might have tested.

The trial court correctly concluded that the State conducted a proper cross-
examination of Stetler. Moreover, since Stetler got the chance to explain how further
testing was not possible, any claimed burden-shifting was completely harmless. We find
no misconduct by the prosecutor and no error in the trial court's ruling.

Cumulative Error

Elkins claims that an accumulation of errors denied him a fair trial. We find no
accumulation of errors upon which Elkins could predicate such a claim.

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Sentencing Errors

Finally, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), Elkins claims his criminal history should have been submitted to the
jury for its determination and that the jury also should have determined whether an upper
grid box sentence was warranted. These claims have been resolved by our Supreme Court
contrary to Elkins' position in State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008),
and in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). We are bound to follow these
precedents. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan.
949 (2007).

Affirmed.