State v. Smith
| Decision Date | 27 April 2021 |
| Docket Number | No. ED108626,ED108626 |
| Parties | STATE OF MISSOURI, Respondent, v. RODNEY A. SMITH, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis
Honorable Clinton R. Wright
Rodney A. Smith ("Defendant") appeals from the Judgment upon his convictions following a jury trial for two counts of statutory rape in the second degree, in violation of Section 566.034, RSMo 2000.1 Defendant was sentenced as a prior and persistent offender to two concurrent terms of seven-years' imprisonment, given a suspended execution of sentence, and placed on probation for five years. We would affirm the Judgment of the trial court, but due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. On January 25, 2018, when Victim was sixteen years old, she told her mother that she andDefendant, her mother's boyfriend, were having sexual intercourse and oral sex. Victim stated that the encounter had last occurred that morning. Victim went to the hospital the same day, where she reported to the emergency-room physician that she had multiple sexual encounters with her mother's boyfriend over the past several months. Victim reported that her last encounter with Defendant was that day, and that it included oral and vaginal penetration.
Victim then underwent a sexual assault examination, and swabs were taken for forensic evidence from Victim's body. The sexual assault kit was then delivered to a forensic lab for further testing.
Detective Julie Johnson ("Detective Johnson"), the investigating officer, received a report concerning Victim from the hospital and scheduled a forensic interview for Victim for the next day. Victim later recanted her allegations to Mother, who in turn notified the police. Detective Johnson spoke with Victim at her school on February 20, 2018, and Victim told her that she had made up the allegations against Defendant because he had mistreated Mother and Victim wanted him out of the house. Because Victim recanted, Detective Johnson canceled the "wanted" for Defendant, but she did not close the case because she was still waiting on lab results from Victim's sexual assault kit. In March 2018, Detective Johnson received partial results from the lab indicating that there was "seminal fluid" in some of the items from Victim's sexual assault kit, so Detective Johnson met with Victim again in April to collect a buccal swab from her.
On May 8, 2018, Detective Johnson learned that unknown sources of DNA were identified from Victim's sexual assault kit, which matched DNA from Defendant. After receiving the lab results, Detective Johnson attempted to contact Defendant but was unsuccessful. Detective Johnson then applied for criminal charges with the prosecutor's office; Defendant was arrested on August 2, 2018.
On August 14, 2019, Defendant was charged by substitute information with three counts of statutory rape (Counts I, III, V) and three counts of statutory sodomy (Counts II, IV, VI). Counts I and II charged that "on or about January 25, 2018," the day Victim disclosed Defendant's abuse, Defendant committed statutory rape in the second degree by having sexual intercourse with Victim (Count I) and statutory sodomy in the second degree by having deviate sexual intercourse with Victim (Count II) when Victim was less than seventeen, in the City of St. Louis. Counts III and IV charged Defendant with the same offenses of statutory rape in the second degree and statutory sodomy in the second degree for conduct occurring between September 1, 2017 and January 24, 2018, in the City of St. Louis. Counts V and VI charged that Defendant committed the same offenses between January 1, 2017 and August 31, 2017, in the City of St. Louis. Defendant's trial was held from August 14-16, 2019.
At trial, the evidence presented against Defendant was the testimony of Victim, her mother, Detective Johnson, the emergency-room physician and crime lab personnel. The crime lab personnel who testified included the biological screener who conducted tests to determine the possible presence of DNA on seized evidence, Anne Kwiatkowski ("Kwiatkowski"), and Eric Hall ("Hall"). Kwiatkowski was the DNA Section Supervisor in the St. Louis Metropolitan Crime Laboratory. She testified as to the testing on those samples. Hall was the Biology Technical Leader for the St. Louis Metropolitan Crime Laboratory who conducted the tests on the DNA samples and reached conclusions on those samples as presented in his lab report.
The State attempted to introduce into evidence buccal swabs taken from Defendant through witness Kwiatkowski. Kwiatkowski did not take the buccal swabs and was not present for the taking of the buccal swabs. That testimony was objected to because there was no witness to the taking of the swab from Defendant. During a discussion, out of the hearing of the jury, theState informed the trial court that Hall, who had taken the buccal swabs, was
Through Kwiatkowski, the State introduced evidence that DNA was found on both a cervical swab and a cutting from Victim's underpants that matched an unknown male. The State then informed the trial court that it intended to call Hall as a witness but that he was only available to testify via live video feed where he would be available for cross examination and for face-to-face confrontation with Defendant. Defendant objected to Hall's testimony via a live video feed.
Over Defendant's objection, Hall provided testimony that he took buccal swabs from Defendant. The buccal swabs were used to create the reference samples that were tested against the DNA samples taken from evidence. Hall's testimony provided evidence that the reference samples were taken from Defendant. Hall further testified that the DNA from the buccal swabs matched the DNA from the cervical swab and Victim's underpants. Without Hall's testimony the only testimony in evidence would have been that the laboratory found DNA on a cervical swab and on Victim's underwear that belonged to an unknown male. Hall's testimony was projected into the Courtroom via a television.
At the conclusion of trial, the jury found Defendant guilty of Counts I and III, statutory rape, and not guilty as to the remaining four counts. The trial court then sentenced Defendant, who was previously found to be a prior and persistent offender, to two concurrent terms of seven-years imprisonment, given a suspended execution of sentence, and placed Defendant on probation for five years.
Thereafter, Defendant filed a motion for new trial alleging that he was denied his right to confrontation of witnesses in allowing witness Hall to testify via a video Zoom phone because the confrontation right presumes that the witness will be present in the courtroom before the defendant and the jury to allow the jury to determine witness credibility. Defendant further alleged that Hall's testimony was extremely prejudicial to Defendant because it was essential to establish that DNA analysis had occurred which resulted in a finding of DNA that matched Defendant on a swab of Victim's cervix and underpants. A hearing was held on the motion. At the hearing on the motion for new trial, the prosecutor informed the trial court that the State had served a subpoena on Hall, prior to trial, but that it had been returned non-est. The trial court subsequently denied the motion. This appeal follows.3
Hearsay Testimony
In Point I, Defendant argues the trial court plainly erred in not excluding Detective Johnson's testimony that Defendant's DNA matched an unknown source found in Victim's sexual assault kit because the testimony was offered for the truth of the matter asserted and was therefore inadmissible hearsay. Defendant contends that the testimony went beyond that required to explain subsequent police conduct and was outcome determinative. We disagree.
We typically review a trial court's evidentiary rulings for an abuse of discretion but determining whether a criminal defendant's rights were violated under the Confrontation Clause is a question of law that this Court reviews de novo. State v. Ivy, 531 S.W.3d 108, 120 (Mo. App. E.D. 2017). The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. Amend. VI. The Confrontation Clause prohibits "admission of testimonial statements of awitness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." State v. Kemp, 212 S.W.3d135, 147 (Mo. banc 2007) (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). "The testimonial nature of a statement is what makes the declarant a 'witness' that the accused has a right to confront." Id. at 47-48.
Here, Defendant concedes that he did not object to Detective Johnson's testimony during trial or include this claim in his motion for new trial. "For an allegation of error to be considered preserved and to receive more than plain error review, it must be objected to during the trial and presented to the trial court in a motion for new trial." State v. Walter, 479 S.W.3d 118, 123 (Mo. banc 2016). Rule 30.20 authorizes us to review, in our discretion, "plain errors affecting substantial rights. . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Under Rule 30.20, plain error review involves a two-step process. State v. Flemons, 144 S.W.3d 877, 881 (Mo. App. W.D. 2004); State v. Dudley, 51 S.W.3d 44, 53 (Mo. App. W.D. 2001). First, we determine whether or not the claimed...
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