United States v. Summers, No. 06-5009

Decided Dec. 16, 2011

Kevin Summers fled from police after being questioned about a shooting close to where he was standing at the time of the officers’ arrival on the scene. During the chase, Summers dropped his black jacket. Once in custody, however, police recovered the jacket along with the gun, ammunition, and crack cocaine inside.

At trial, the government called police witnesses to verify that the jacket belonged to Summers and was recovered at the scene. The prosecution also called Brendan Shea, the investigator responsible for performing and evaluating DNA tests on the jacket. Though the jacket had been processed through the “standard routing and inventory process,” there was uncertainty in the tracking of the jacket between the time Summers was arrested, Shea’s staff performed the tests, and trial. Summers introduced an internal log documenting who had accessed the jacket and called attention to the fact that others besides Shea had worked on it. Indeed, Shea could not testify with certainty that the jacket he tested and that was admitted into evidence was the jacket police took from Summers. Despite this, a jury convicted Summers for being a felon in possession of a firearm and possession with intent to distribute crack cocaine.

Summers appealed, claiming that his Confrontation Clause rights had been infringed because he was not able to cross-examine the lab technicians that handled and processed the jacket. However, following Crawford and subsequent precedent from both the Circuit and Supreme Court, the Fourth Circuit held that though the government may be required to produce live witnesses to establish a chain of custody, this requirement is nullified if the defense presents such evidence itself.

Moreover, where Shea explained and drew conclusions based on the work of subordinates and evaluated both the process and results of tests performed, he qualified as an expert to testify to a reasonable degree of scientific certainty that the jacket belonged to Summers. Also, where there is an issue of mishandling evidence or problems with equipment, it may be incumbent upon the defense to advise the prosecution of the need to secure necessary witnesses; otherwise, bringing the claim first on appeal may appear to be gamesmanship and not a legitimate argument. Finally, introducing the forensic examiner’s report itself may be error, but it was harmless in this case because the report was almost “wholly cumulative” of the examiner’s testimony in court.

Judge Floyd concurred in the judgment of the court but noted that the principle of constitutional avoidance should have precluded the court from reaching the merits of the Confrontation Clause argument where there are independent grounds upon which to base its judgment.

Full Citation

-C. Alexander Cable

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