Please ensure Javascript is enabled for purposes of website accessibility

Court of Appeals overturns Charles County cold-case rape conviction

Citing a case decided in June by the Supreme Court, Maryland’s highest court held Thursday that a lab analyst who testifies at a criminal trial must be the one who conducted or supervised the DNA tests being offered into evidence.

The Court of Appeals’ overturned Norman Bruce Derr’s 2006 conviction for a 1984 rape, saying he was denied the right to confront and cross-examine the lab technicians who “perform[ed] or observ[ed]” the body-fluid and DNA tests that were introduced at trial.

At Derr’s trial in Charles County, Federal Bureau of Investigation analyst Dr. Jennifer Luttman testified that tests conducted in 1985, 2002 and 2004 linked him to the rape. However, Luttman was only involved in the 2004 test. She had not performed it, but supervised the team of biologists who did.

The tests were performed for the “primary purpose of establishing facts relevant to a later prosecution,” therefore they were testimonial in nature and subject to the Sixth Amendment’s Confrontation Clause, Judge Clayton Greene Jr. wrote for the court.

The Court of Appeals likened the case to Bullcoming v. New Mexico, in which the Supreme Court recently held that a New Mexico man had the right to confront the specific lab tech who performed the blood-alcohol test that was the basis for his drunken driving prosecution.

The Court of Appeals had heard argument in Derr’s case on Sept. 2, 2010. Both sides asked it not to rule until the Supreme Court decided Bullcoming. That opinion came out June 23.

Although Bullcoming did not establish a right to confrontation in every case, it provided “guidance,” Greene wrote Thursday.

“We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness,” he wrote.

All seven judges agreed that Derr should get a new trial. While the five-judge majority held that none of the test reports or related testimony from Dr. Luttman should have been admitted, Judges Glenn T. Harrell Jr. and Lynne A. Battaglia Harrell faulted only the 2002 report.

Surrogate witness

On Sept. 27, 2004, Derr was charged with sexual offenses after the FBI’s crime lab discovered that his DNA matched that of the suspect in a Dec. 9, 1984, rape.

The DNA came from a swab that had been taken from the complaining witness at Physicians Memorial Hospital in Charles County. Testing done in 1985 identified sperm and semen on the swabs, but the rape case remained unsolved.

In 2002, a detective reviewed the case and submitted the swabs to an FBI lab for more advanced forensic testing, which was conducted by Dr. Maribeth Donovan. A DNA profile of the suspect was formed and entered into a national database.

In 2004, the FBI lab matched the suspect’s DNA profile to Derr’s, which was in the system. A search warrant for another sample was issued, and that, too, was deemed a match. Luttman’s subordinates performed the 2004 DNA tests.

At Derr’s trial, Luttman was called to testify not only regarding the 2004 test but also as an expert “surrogate” witness to the 1985 and 2002 testing. Derr was convicted of four counts of sexual offenses and appealed.

The Court of Appeals took up the case on its own motion.

On Thursday, it held that the trial court erred in admitting all three test results because the reports were testimonial statements and their admission through Luttman’s testimony violated Derr’s right under the Confrontation Clause.

Repeatedly citing Bullcoming, Greene wrote, “[I]t is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause.”

Dissenting, Harrell wrote that Bullcoming should not be applied so broadly to the case at bar. First, the 2004 DNA test results were “distinguishable from the situation in Bullcoming in a significant way”: Luttman actually observed the tests and performed the analysis necessary to interpret the results and write the report.

He further noted that the 1985 bodily fluids report merely “consisted of raw data,” so testimony relating to the report did not implicate the Confrontation Clause.

However, Harrell wrote, the 2002 testing included more than raw data; it included the interpretation that Derr was a match for the swabs taken from the alleged victim. To fully satisfy the Confrontation Clause, Harrell wrote, Derr must be given the chance to cross-examine the analyst who did that testing. Harrell thus agreed that Derr was entitled to a new trial.

Maryland State Police spokesman Greg Shipley said the implications of the court’s decision, especially on cold case investigations, were better determined by prosecutors. But he said law enforcement already routinely jumps “evidentiary hurdles” when it comes to documenting the collection and transferring of evidence, whether DNA-related or not.

“We would do our best to reconstruct the [evidence’s] chain of custody and make those individuals available if required by the defense,” he said.

Attorney General Douglas F. Gansler could not be reached for comment on Thursday. Baltimore City State’s Attorney’s Office spokesman Mark Cheshire said the office, which was not involved in the Charles County case, would need more time to review its implications.



Derr v. State, CA No. 6, Sept. Term 2010. Argued Sept. 2, 2010. Opinion by Greene, J., filed Sept. 29, 2011. Dissent and concurrence by Harrell, J.


Were the appellant’s Confrontation Clause rights violated when he was not allowed to cross-examine the specific lab technicians who performed the DNA tests that linked him to a 20-year-old rape?


Yes; reversed. The body fluid and DNA test reports that the prosecution used to link him to the rape were testimonial in nature and therefore subject the Confrontation Clause, which was not satisfied in this case.


Stephen B. Mercer, Maryland Office of Public Defender, for appellant; Assistant AG Robert Taylor Jr, for appellee.

RecordFax #11-0929-21