State v. Smith, S–1–SC–34504.

CourtSupreme Court of New Mexico
Citation367 P.3d 420
Docket NumberNo. S–1–SC–34504.,S–1–SC–34504.
Parties STATE of New Mexico, Plaintiff–Appellee, v. Dorall SMITH, Defendant–Appellant.
Decision Date15 February 2016

367 P.3d 420

STATE of New Mexico, Plaintiff–Appellee,
Dorall SMITH, Defendant–Appellant.

No. S–1–SC–34504.

Supreme Court of New Mexico.

Feb. 15, 2016.

367 P.3d 423

Jorge A. Alvarado, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Hector H. Balderas, Attorney General, Adam Hartley Greenwood, Assistant Attorney General, Santa Fe, NM, for Appellee.


VIGIL, Chief Justice.

{1} Defendant Dorall Smith appeals his convictions for first-degree murder, contrary to NMSA 1978, Section 30–2–1(A)(1) (1994), and criminal damage to property, contrary to NMSA 1978, Section 30–15–1 (1963). Defendant challenges his convictions on ten grounds, arguing that: (1) there was insufficient evidence of deliberate intent to support a conviction for first-degree murder; (2) the trial court abused its discretion by allowing the State to use recalculated DNA results that were not disclosed to Defendant until the eve of trial, necessitating that defense counsel retain its own expert midtrial to analyze the DNA evidence; (3) the trial court abused its discretion by ordering defense counsel to obtain a DNA expert midtrial, and then requiring that expert to expedite his analysis; (4) the trial court improperly admitted autopsy photographs and the testimony of a supervising pathologist in violation of the constitutional right to confrontation; (5) the trial court abused its discretion by allowing evidence of prior bad acts contrary to its previous order in limine; (6) the trial court abused its discretion by joining Defendant's two cases; (7) a three-year delay amounted

367 P.3d 424

to a violation of Defendant's constitutional right to a speedy trial; (8) Defendant received ineffective assistance of counsel; (9) the trial court abused its discretion by denying Defendant's motions for mistrial; and (10) his convictions should be reversed based on a theory of cumulative error in light of the aforementioned.

{2} We reject each of Defendant's claims of error and affirm his convictions for first-degree murder and criminal damage to property. While settled New Mexico law squarely controls nine of the ten issues Defendant raises on appeal, we proceed to render this opinion to clarify New Mexico's law regarding whether autopsy photographs of a murder victim's wounds are testimonial statements constituting hearsay banned under the Confrontation Clause. We hold that the autopsy photographs at issue in this case, depicting a murder victim's wounds, are not testimonial statements and thus do not implicate Defendant's Sixth Amendment right to confront this evidence against him.


{3} In the afternoon of September 1, 2010, Defendant saw Victim and her boyfriend Antonio Womack from across the street. Defendant walked towards them in a threatening manner, saying "what's up, bitch?" and "[y]eah, I'm going to get you." Defendant had previously been Victim's boyfriend and lived with her for four months. Upon seeing Defendant, Victim made a point of kissing Womack, presumably to make Defendant jealous.

{4} That night, Defendant planned to stay with childhood friend Electa Hart and her boyfriend Ashante Roberts. Defendant was wearing jeans but asked to borrow a pair of Roberts' shorts. Sometime that evening Defendant left Hart's apartment to hang out and drink with friends at Hart's brother's apartment. Around midnight, Defendant returned to Hart's apartment and borrowed her phone. Using Hart's phone, Defendant texted and called Victim repeatedly.

{5} The last call to Victim's phone came from Hart's phone at 3:40 a.m. on September 2, 2010. It appears Victim hid her cell phone under a stuffed animal in her room before going outside the apartment, presumably to meet Defendant. At around the same time a neighbor heard faint screaming and calls for help but thought nothing of it. Victim was stabbed approximately ninety times. The stab wounds included some to her cheek, sinus, ribs, and neck. As she tried to defend herself, she suffered additional lacerations on her arm. Most of the wounds were shallow and penetrated only the skin and underlying tissue, though some penetrated straight to the bone and skull. The most significant injuries were to her trachea, neck muscles, and external jugular vein. Victim bled significantly. And, as a detective testified, the attack was prolonged enough for her to move around, evidenced by multiple pools of blood. At one point the assailant may have walked away, only to return and attack again. The assailant also slashed the tires of the vehicles in Victim's driveway, and went inside her home, dripping blood and leaving bloody shoe and hand prints along the way. At trial, the DNA expert could not exclude Defendant as a donor to various blood samples taken from the driveway, vehicles in the driveway, and Victim's home.

{6} It was impossible for investigators to determine how long it took for Victim to bleed to death, but early that morning, before 5:00 a.m., a man on a paper route discovered Victim's body and called the police. Meanwhile, Defendant had returned to Hart's home, staining the shower mat in her bathroom with blood. At trial, the DNA expert testified that Victim could not be excluded as a donor to some of the blood samples taken from Hart's home.

{7} Later that morning, when Roberts asked Defendant what had happened to Defendant's jeans, Defendant said he had thrown them away. Defendant also had a large cut on his hand—which he claimed happened while he was fooling around with a knife—so Hart and Roberts took him to the hospital. On the way to the hospital, Defendant kept repeating, "Why do I keep thinking about this girl named [Victim's name]?" Just prior to his arrest, Defendant told a stranger at a convenience store that he had hurt his hand when he "got into it" with his girlfriend.

367 P.3d 425

{8} Defendant was indicted on a first-degree murder charge and two charges of evidence tampering. In a separate case rising from the same incident Defendant was charged with aggravated burglary and criminal damage to property. The State moved to join the cases pursuant to Rule 5–203 NMRA in December 2011, and the trial court joined the two cases on September 17, 2013. The trial court dismissed the aggravated burglary charge and granted a directed verdict on the two counts of evidence tampering. Defendant was ultimately found guilty of the remaining charges of first-degree murder and criminal damage to property.

{9} Numerous issues arose at trial, stemming primarily from the State's request to recalculate DNA evidence results. At the pretrial hearing on September 17, 2013, the State asked for a ten-day continuance of the trial because the State's DNA expert Donna Manogue had just informed the prosecutor that the DNA results for four samples from this case needed to be recalculated with different statistical ratios. Although Manogue had been issued a subpoena for this trial on August 19, 2013, she had not actually received it until September 16, 2013, resulting in the late notice. According to the prosecutor, Manogue believed that a memorandum had been sent to some prosecutors in May regarding the need to recalculate certain DNA results, but as of the date of the pretrial hearing this particular prosecutor had not received the mass-email notification. The prosecutor later confirmed that a mass-email was sent by another prosecutor concerning DNA recalculations, but she missed it.

{10} The trial court suggested commencing the trial and then delaying it for a couple of days to allow Manogue to complete her reanalysis and obtain peer review. Defense counsel considered whether she might need to consult an expert in order to completely understand the recalculations of the DNA evidence results, and indicated that she would prefer to proceed to trial with the original DNA calculations—but the trial court was concerned that using the original DNA results would deny due process to Defendant. Defense counsel, though, also indicated that if only the original DNA results were used at trial, she would use the recalculations of the DNA results for impeachment. Regardless, the prosecutor responded that Manogue was unwilling to testify based on the original, erroneous DNA calculations. The trial court ordered the prosecutor to call Manogue about expediting her recalculation of the DNA results so that a continuance of the upcoming trial would not be necessary. The prosecutor complied, and Manogue agreed to expedite her recalculations.

{11} As a result of Manogue's efforts, the State was able to provide the recalculated results to Defendant that same day. At trial two days later, on September 19, 2013, defense counsel asked to interview Manogue about the DNA results. The next day, September 20, 2013, the parties discussed the issue again. Defense counsel once again asked the trial court to exclude the recalculated results because she needed the assistance of an expert to respond to it. The State responded that Manogue simply could not testify to the original, less-accurate calculations, and that the recalculations gave similar results to the originals—except the chances of the DNA being a mistaken match to Defendant were now identified as being one-in-millions, not one-in-billions. The trial...

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