☢ test - Í

data from the testing, and performed the ultimate analysis of the testing); Disharoon, 291 Ga. at 45 (same); Carolina v. State, 302 Ga.App. 40, 41–42 (690 S.E.2d 435) (2010) (holding that testimony of lab supervisor, rather than technician who tested drugs, was not inadmissible hearsay which violated Confrontation Clause because supervisor reviewed and interpreted the data prepared by technician); see also Williams v. Illinois, ___ U.S. ____ (132 S.Ct. 2221, 183 L.Ed.2d 89) (2012) (a plurality holding that the Confrontation Clause was not violated when an expert testified about her conclusions that were based upon a DNA report prepared by a contract laboratory, which she did not supervise).” Pate v. State, 318 Ga.App. 526, 734 S.E.2d 255 (November 15, 2012). Conviction for selling cocaine affirmed. No ineffective assistance in counsel’s failure to raise Confrontation Clause objections to forensic testimony prior to Melendez-Diaz and Bullcoming . “We need not decide the Confrontation Clause issue based on the facts presented, but we note that ‘in making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law, and that only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law.’ (Footnotes and punctuation omitted.) Rickman v. State, 277 Ga. 277, 279– 280(2) (587 S.E.2d 596) (2003).” McMullen v. State, 316 Ga.App. 684, 730 S.E.2d 151 (July 9, 2012). Physical precedent only on this point. Convictions for vehicular homicide reversed on other grounds, but no Confrontation Clause violation in testimony of crime lab witness who “admitted that he did not physically place McMullen's blood sample into the instrumentation and perform the tests himself, [but] he examined and analyzed ‘every piece of data’ that was produced, drew conclusions from that data, and then testified regarding his independent expert opinion derived from that data. [fn: The data report itself was not tendered into evidence. ] The expert further testified that the data report itself contains information regarding calibrations and controls run prior to and after the testing of McMullen's blood from which it was possible for him to confirm both that the instrument was in proper working order and that the tests were performed correctly. Under these circumstances, the trial court did not err in allowing the testimony of the expert witness even though he did not actually perform the testing procedure himself. It is well established that ‘an expert may base his opinion on data collected by others’ and that his or her ‘lack of personal knowledge does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion.’ Moreover, because the expert personally viewed and analyzed the data which formed the basis of the expert opinion about which he testified, he was not acting as a mere ‘surrogate,’ compare Bullcoming, ___ U.S. at (II)(B), but rather ‘had a substantial personal connection to the scientific test at issue.’ Disharoon [ v. State , 291 Ga. 45, 727 S.E.2d 465] (May 7, 2012). It follows then, that the expert witness's testimony did not violate McMullen's Sixth Amendment confrontation right. [Cits.]” Williams v. Illinois, 10-8505, ___ U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89, 2012 WL 2202981 (June 18, 2012). Affirming Illinois Supreme Court , trial court, at defendant’s bench trial for rape, properly admitted testimony of crime lab technician based in part on DNA testing performed by private lab, though the private lab results were not in evidence. No majority agrees on a single rationale for admission of the evidence. 1. Evidence: Forensic scientist testified that he confirmed the presence of semen on vaginal swabs taken from victim. Chain of custody evidence showed that the semen samples were sent to the state crime lab, then forwarded to private lab Cellmark. Cellmark returned the swabs to the state crime lab “along with a deduced male DNA profile.” Separately, a state forensic analyst testified that she had developed a DNA profile of defendant from a blood sample taken from him after an unrelated arrest. Finally, crime lab scientist Lambatos testified to her opinion that the Cellmark DNA profile matched the one developed from defendant’s blood sample. Issue here centers of Lambatos’s affirmative answer to this question: “Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [victim] to a male DNA profile that had been identified as having originated from Sandy Williams?” (emphasis added by U.S. Supreme Court). “The Cellmark report itself was neither admitted into evidence nor shown to the factfinder. Lambatos did not quote or read from the report; nor did she identify it as the source of any of the opinions she expressed. … When Lambatos referenced the report during her direct examination, she did so ‘for the limited purpose of explaining the basis for [her expert opinion],’ not for the purpose of showing ‘the truth of the matter asserted’ by the report,” quoting State Supreme Court opinion . 2. Alito, writing for the plurality, agrees with the State Supreme Court that the evidence was not offered for the truth of the matter asserted, but merely as an assumption underlying the witness’s own opinion. A. Specifically, Lambatos’s testimony was not offered to prove that the Cellmark DNA profile came from “semen from the vaginal swabs.” “[T]his form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of- court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the