State v. Smith

• Decision Date: 13 March 2017
• Docket Number: No. 2 CA-CR 2015-0357,2 CA-CR 2015-0357
• Citation: State v. Smith, 393 P.3d 159 (Ariz. App. 2017)
• Parties: The STATE of Arizona, Appellee, v. Fuller Wayne SMITH, Appellant.
• Court: Arizona Court of Appeals

393 P.3d 159

The STATE of Arizona, Appellee,

v.Fuller Wayne SMITH, Appellant.

No. 2 CA-CR 2015-0357

Court of Appeals of Arizona, Division 2.

Filed March 13, 2017

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Phoenix, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee

Piccarreta Davis Keenan Fidel, PC, Tucson, By Michael L. Piccarreta and Jefferson Keenan, Counsel for Appellant

Presiding Judge Howardauthored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred.

OPINION

HOWARD, Presiding Judge:

¶ 1 Following a jury trial, Fuller Smith was convicted of two counts of molestation of a child and two counts of sexual conduct with a minor under fifteen.On appeal, Smith argues a DNA¹ expert's testimony as to the results of a saliva test violated his Confrontation Clause rights, the trial court violated his due process rights by denying his motion to dismiss with prejudice after two previous trials resulted in mistrials, and that insufficient evidence supported the jury's verdicts.Because Smith's Confrontation Clause rights were violated, we vacate Smith's convictions and sentences and remand.

Factual and Procedural Background

¶ 2We view the evidence in the light most favorable to upholding the jury's verdicts.State v. Mangum , 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253(App.2007).N.S. is Smith's granddaughter and was eight years old at the time of these incidents.In October 2011, she was staying at his house and, after she went to bed, Smith removed her pants and underwear, rubbed her genitals with his fingers, and licked her genitals.He then put her pants and underwear back on and left the room.Although N.S. was awake during this encounter, she pretended to be asleep.

¶ 3 The following afternoon, Smith told N.S. to take a nap even though she did not typically take naps in the afternoon.Shortly thereafter, Smith entered N.S.'s room, removed her pants and underwear, rubbed and licked her genitals, put her pants and underwear back on and left the room.She again pretended to remain asleep.Approximately two weeks later, N.S. told her parents what Smith had done.Smith's DNA was found on the inner and outer crotch areas of the underwear N.S. had been wearing while she stayed at Smith's house.

¶ 4The state charged Smith with two counts each of sexual conduct with a minor under fifteen and molestation of a child under fifteen.During Smith's first trial, the trial court declared a mistrial after N.S.'s mother testified to other acts of sexual misconduct that Smith had not been charged with and which had been precluded.Smith's second trial also resulted in a mistrial after the jury was unable to reach a verdict.The jury in Smith's third trial found him guilty on all four counts as described above.

¶ 5 As to the molestation of a child charges, the trial court sentenced Smith to consecutive terms totaling twenty years.On each of the sexual conduct with a minor charges, the court sentenced Smith to a term of life imprisonment without the possibility of release for thirty-five years, to be run consecutively to each other and the molestation charges.We have jurisdiction over Smith's timely appeal pursuant to A.R.S. §§ 12–120.21(A)(1)and13–4033(A)(1).

Confrontation Clause

¶ 6 Smith argues the trial court erred by refusing to preclude a portion of the state's DNA expert's testimony because it violated his Confrontation Clause rights under the United States and Arizona constitutions.U.S. Const. amend. VI;Ariz. Const. art. II, § 24."[W]e review de novo challenges to admissibility based on the Confrontation Clause."State v. Bennett , 216 Ariz. 15, ¶ 4, 162 P.3d 654, 656(App.2007).

¶ 7 At trial, the state introduced the testimony and written reports of DNA analyst Brianna Smalling.Smith contends the portion of her report and testimony involving the "RSID saliva test," which her laboratory conducted on a portion of N.S.'s underwear, was impermissible testimonial hearsay.The test indicates the presence of alpha amylase, which is a protein found in certain bodily fluids, including saliva.Kim Lang, another technician at the same laboratory, conducted the saliva test² on the inner and outer crotch areas of N.S.'s underwear and submitted the results to Smalling.Smalling included those results in her report, but did not participate in the testing and did not conduct any independent analysis of the results.

¶ 8 The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."U.S. Const. amend. VI;see alsoAriz. Const. art. II, § 24("In criminal prosecutions, the accused shall have the right ... to meet the witnesses against him face to face....")."[T]estimonial hearsay," although not the sole concern of the Confrontation Clause, is nonetheless its "primary object."Crawford v. Washington , 541 U.S. 36, 53, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004).Testimonial hearsay is "out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct" and which involves "formalized statements such as affidavits, depositions, prior testimony, or confessions."Williams v. Illinois , 567 U.S. 50, 132 S.Ct. 2221, 2242, 183 L.Ed.2d 89(2012).Documents "created solely for an ‘evidentiary purpose’ ... made in the aid of a police investigation, rank[ ] as testimonial."Bullcoming v. New Mexico , 564 U.S. 647, 664, 131 S.Ct. 2705, 180 L.Ed.2d 610(2011), quotingMelendez–Diaz v. Massachusetts , 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314(2009).

¶ 9 In Bullcoming , the Court discussed the type of forensic evidence that falls within the Confrontation Clause purview.In that case, the state had introduced a forensic report certifying the defendant's blood-alcohol concentration "through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification."564 U.S. at 651–52, 131 S.Ct. 2705.The Court found such "surrogate testimony" violated the Confrontation Clause, and the defendant had a right to confront the scientist who had conducted the test and authored the report.Id. at 652, 131 S.Ct. 2705.

¶ 10We agree with Smith that this case is analogous to Bullcoming and that Smalling acted only as a "conduit for another non-testifying expert's opinion."State v. Gomez , 226 Ariz. 165, ¶ 22, 244 P.3d 1163, 1168(2010), quotingState v. Snelling , 225 Ariz. 182, ¶ 19, 236 P.3d 409, 414(2010).Like the testifying expert in Bullcoming , Smalling "played no role in producing the [test results,] ... did not observe any portion of [Lang's] conduct of the testing" and did not offer an "independent, expert opinion about" whether alpha amylase was found on N.S.'s underwear. 564 U.S. at 673, 131 S.Ct. 2705(Sotomayor, J., concurring).

¶ 11 Additionally, the Pima County Sheriff's office provided the underwear to the laboratory, informed them of the factual basis of N.S.'s allegations, and requested the saliva test.The laboratory thus was aware the testing was being used "solely for an ‘evidentiary purpose’ ... made in aid of a police investigation."Bullcoming , 564 U.S. at 664, 131 S.Ct. 2705, quotingMelendez–Diaz , 557 U.S. at 311, 129 S.Ct. 2527.

¶ 12 Finally, the saliva test results were offered for the truth of the matter asserted: that saliva had been found on N.S.'s underwear.But they were introduced through the testimony of an expert who did not participate in the testing or come to any independent conclusion about the results.Lang, as the technician who conducted the test and generated the result, was the witness Smith had the right to confront at trial under the Sixth Amendment.Melendez–Diaz , 557 U.S. at 311, 129 S.Ct. 2527.

¶ 13 At oral argument, the state conceded the saliva test was a separate process from the creation of the DNA profiles used by Smalling to compare Smith's DNA with that found on N.S.'s underwear.³Smalling did not reach any independent conclusions as to whether saliva was found on N.S.'s underwear.Thus, while "[t]he DNA profiles had no evidentiary value until they were compared and matched by" Smalling, the saliva test result's evidentiary impact arose once the test was completed by Lang.State v. Ortiz , 238 Ariz. 329, ¶ 59, 360 P.3d 125, 138(App.2015).By relying on Smalling to relay Lang's test results, the state violated Smith's Sixth Amendment right to confront the witnesses against him.

¶ 14 Having determined that Smalling's testimony violated Smith's Confrontation Clause rights, we next turn to whether the error was harmless.State v. Bass , 198 Ariz. 571, ¶ 39, 12 P.3d 796, 805(2000).The state bears "the burden of convincing us that error is harmless."State v. Bible , 175 Ariz. 549, 588, 858 P.2d 1152, 1191(1993).We must be satisfied beyond a reasonable doubt that the erroneously admitted evidence "had no influence on the jury's judgment."Id."The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error."State v. Valverde , 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236(2009), quotingState v. Anthony , 218 Ariz. 439, ¶ 39, 189 P.3d 366, 373(2008).

¶ 15The state attempts to downplay the impact of the evidence, arguing that any error in admitting the test results was harmless because the "results alone do not in any way connect the presence of" alpha amylase to Smith and the jury was told the result could also indicate the presence of other substances such as feces or urine.It points out that "one would expect a child's dirty underwear to have traces of ... feces on them, and produce a positive test result, especially, when, as here, the pediatric forensic nurse testified that [N.S.] had hygiene problems."

¶ 16 But the prosecution made the saliva test...