Raquel-Dieguez v. State

475 S.W.3d 585

Ismael Raquel–Dieguez, Appellant,

v.State of Arkansas, Appellee.

No. CR–15–235

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered November 4, 2015

Jessica L. Carnes, P.A., by: Jessica L. Carnes, for appellant.

Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

RITA W. GRUBER, Judge

Ismael Raquel–Dieguez was convicted by a jury of delivery of methamphetamine weighing more than 10 grams but less than 200 grams, and he was sentenced to a term of eighteen years' imprisonment in the Arkansas Department of Correction. The charge against him arose from a controlled buy in Springdale, Arkansas, on August 22, 2012. He now appeals, raising two points. First, he contends that the trial court abused its discretion by denying his motions for a mistrial because he was denied his rights under the Confrontation Clause and because of prejudicial statements by the State and the court in rebuttal closing argument. Second, he contends that the trial court erred by receiving into evidence a substance that was not authenticated by a proper chain of custody. We affirm.

Appellant made the first of several motions for a mistrial after this portion of the State's opening statement:

The methamphetamine was processed by the local DEA office, packaged for shipment, and shipped down to the South Central Laboratory, federal laboratory, in Dallas, Texas. The methamphetamine actually got tested twice. It was found to be an ounce of methamphetamine. It was 99 percent pure. It was methamphetamine.

Appellant based his mistrial motion on the State's reference to two tests, "one of which is inadmissible as a matter of law ... the analyst who performed that test is not present here at trial to testify and be cross-examined on that testing." The trial court denied the motion as well as appellant's subsequent motions for a mistrial.

The State's evidence at trial included testimony by Detective Alex Amaya of the Rogers Police Department, who worked as a task-force undercover officer for the Drug Enforcement Administration (DEA); Hilda Lemus–Orellana, the DEA's confidential informant who purchased the substance purported to be methamphetamine; and Paul Galat, a senior forensic chemist at the DEA's South Central Laboratory in Dallas, Texas. Over appellant's objections, the State introduced into evidence both Galat's September 10, 2014 laboratory report on the substance that appellant had sold in the controlled buy and a sealed bag containing the tested substance.¹ The report, which was positive for methamphetamine hydrochloride, contained the following statement: "Amended report to reflect re-analysis. Refer to original laboratory report dated 12–26–2012." The State did not seek to admit the original laboratory report; nor did it call as a witness the chemist who performed the original analysis.

According to the testimony in this case, Hilda Lemus–Orellana and Detective Amaya drove together to a Wal–Mart parking lot after Lemus–Orellana arranged to buy methamphetamine from appellant for $1850. Appellant arrived in his car and Lemus–Orellana got in; she paid him, and he sold her a substance purported to be methamphetamine. She got back in Amaya's vehicle and put a baggie containing the substance on the console. Amaya field tested "residue in the teeth at the top of the ziplock part of the bag," which was positive for methamphetamine. After the substance was packaged and weighed by DEA agents, it was sent to the DEA's South Central Laboratory in Dallas, Texas—which is responsible for analyzing and storing all drug evidence that DEA collects. The substance remained there until it was needed for appellant's trial.

Paul Galat testified that chemists at the South Central Laboratory accept only envelopes that have been sealed by DEA agents and sent to the laboratory's vault. The laboratory's chain-of-custody report for the substance in this case showed that the substance was stored in the vault after it was received at the laboratory, Galat checked it out and turned it back in, and it later was sent to Arkansas for trial. Galat determined in his testing that the gross weight was 60.8 grams. He performed a marquis-color test that indicated the substance could be methamphetamine and a test that confirmed the presence of methamphetamine. After obtaining a net weight of 27.4 grams—the weight without the packaging—Galat ground the methamphetamine into a fine powder in order to perform instrumental tests, including a "liquid chromatography" test to determine purity. Galat's report of his test results—methamphetamine hydrochloride with a purity of 99.2 percent—used the same case number that was on the bag of methamphetamine. Galat said that he could tell that the evidence had not been tampered with because the bag had his seal and evidence sticker at the bottom, the agent's intact seal on the top, and the manufacturer's seals on the sides, and because everything inside it had Galat's initials and the date of his analysis.

Outside the presence of the jury, Galat stated in voir dire that another analyst, Dustin Barr, previously had tested the methamphetamine. Galat confirmed from the chain-of-custody document that Barr had checked out the methamphetamine on November 19–20 and on December 21–26, 2012. Barr prepared his laboratory report on December 26, 2012, and it was approved by the acting laboratory director five days later. Galat had not observed the previous testing but knew that Barr had done it because Barr's initials were on the bag and he had prepared a report. Galat explained that his supervisor asked him to retest the methamphetamine in order to testify as a witness in this case because a medical condition prevented Barr from traveling.

In closing argument, appellant referred to Barr and to the periods of time that he had checked out the methamphetamine in the laboratory:

[The prosecutor is] going to tell you that none of this matters. He's going to tell you not to worry about it. Don't worry about Mr. Barr. Don't worry about what happened to the evidence back in 2012 twice, two days, two periods of time, one day, five days over the holidays. Don't worry about that. It doesn't matter.

The State responded in rebuttal closing argument, "You heard [defense counsel] mention Dustin Barr. Why isn't he here? They didn't call him." Appellant objected and moved for a mistrial:

DEFENSE COUNSEL: Objection. The defendant has no burden whatsoever to call witnesses in this case.

THE COURT: You have no burden of proof. But you are allowed to subpoena witnesses.

....

PROSECUTOR: I'll continue. We didn't call Mr. Barr here. There were reasons. Don't you think if there were shenanigans that he would be subpoenaed by the defense? Look closer.

DEFENSE COUNSEL: We renew our motion for a mistrial.

THE COURT: Denied.

Appellant then moved for a mistrial on the grounds of confrontation. And again, his motion was denied.

I. Whether the Trial Court Abused its Discretion by Denying Appellant's Motions for a Mistrial

Appellant contends that the trial court abused its discretion by denying his motions for a mistrial based on violation of his Sixth Amendment confrontation rights and on prejudicial remarks by the State and the court during the State's rebuttal closing argument. Questions of constitutional interpretation, such as whether there has been a Confrontation Clause violation, are subject to de novo review. E.g., Seely v. State, 373 Ark. 141, 145, 282 S.W.3d 778, 782 (2008). The decision to deny a motion for mistrial is not reversed unless the circuit court abused its discretion. Rodriguez v. State, 2014 Ark. App. 660, at 11, 449 S.W.3d 306, 313.

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Much of the argument in the present case focuses on United States Supreme Court decisions involving the Confrontation Clause and the necessity of witnesses when the prosecution's case involves forensic reports.

In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, (2004) the Court held that "[t]estimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Two subsequent cases, Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011), involved the prosecution's introduction of forensic reports containing "a testimonial certification, made in order to prove a fact at a criminal trial." Williams v. Illinois, –––U.S. ––––, 132 S.Ct. 2221, 2223, 183 L.Ed.2d 89 (2012). The prosecution in Melendez–Diaz entered into evidence "certificates of analysis" to show that substances had been analyzed and were found to be cocaine; the certificates consisted of sworn affidavits by analysts who did not testify at trial. 557 U.S. at 308, 129 S.Ct. 2527.

The Court determined that the affidavits were testimonial, thereby implicating Melendez–Diaz's right of confrontation. Id. at 310–11, 129 S.Ct. 2527. In Bullcoming, where the analyst who performed the tests was on unpaid leave for an unrevealed reason, and another analyst from the same lab testified about the tests, the Court held that "[t]he analysts who write reports that the prosecution introduces must be made available for confrontation." Id. at 2715.

In Melendez–Diaz, supra, the Court recognized the constitutionality of notice-and-demand statutes in states such as Arkansas requiring the prosecution to notify the accused of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time to object to the admission of the evidence absent the analyst's appearance at trial. Arkansas Code Annotated section 12–12–313 (Supp. 2013), entitled Records as evidence—Analyst's testimony, reads in...