APPEAL
FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-16-842]
HONORABLE GARY COTTRELL, JUDGE
Lisa-Marie Norris, for appellant.
Leslie
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
ROBERT
J. GLADWIN, Judge
Appellant
Lenin Alejandro-Alvarez appeals his convictions on charges of
rape and sexual assault in the second degree. He argues that
the circuit court violated his Sixth Amendment Confrontation
Clause right to confront his accuser. Although we find merit
in appellant's argument that the circuit court erred by
allowing a substitute analyst to testify on the "data
analysis" he performed on the results of the initial
analyst's work, we nevertheless affirm because this error
was harmless.
I.
Facts
In
August 2016, appellant and his wife, Maria Carmen del
Rodriguez Hernandez (V.C.'s biological mother),
registered V.C. for fifth grade at City Heights Elementary
School in Van Buren. During the registration process, V.C.
told the school's assistant principal, Aimee McCabe, that
she was pregnant. Ms. McCabe, a mandated child-abuse
reporter, called the child-maltreatment hotline. Van Buren
police detective Jonathan Wear subsequently observed an
interview of V.C. conducted at Hamilton House in Fort Smith
by a sexual-assault nurse examiner, Ruth Dudding.
Detective
Wear arrested appellant following the interview, and the
State charged him in an information filed September 19, 2016,
with rape (victim less than fourteen years of age) pursuant
to Arkansas Code Annotated section 5-14-103(a)(3)(A) (Supp.
2017), a Class Y felony; and sexual assault in the second
degree (with a person less than fourteen years of age)
pursuant to Arkansas Code Annotated section 5-14-125(a)(3), a
Class B felony.
After
V.C. gave birth to baby K. in January 2017, buccal swabs from
the cheeks of V.C., K., and appellant were collected by Melea
McCormick, another sexual-assault nurse examiner at Hamilton
House. Detective Wear picked up those swabs and delivered
them to the Arkansas Crime Laboratory for a paternity
determination. Appellant filed a notice under Arkansas Code
Annotated section 12-12-313(d)(2) (Supp. 2015) to compel the
presence at trial of any person who "performed any
analysis upon any evidence submitted by the State or law
enforcement, which is to be submitted as evidence against
[appellant]." The State ultimately disclosed Maddison
Harrell, a forensic DNA examiner with the Arkansas Crime
Laboratory, who served as the administrative reviewer of the
work of Julie Butler, the analyst who had performed the
paternity test but had moved to North Carolina before trial.
A motion in limine was filed regarding the proffered expert
witness, Harrell, the substitute analyst for Butler.
At
trial, the circuit court qualified Harrell as an expert in
forensic DNA analysis. Harrell acknowledged that he did not
perform the "initial testing" on the buccal
swabs—meaning that he did not "perform the lab
work" for the case—which had been performed by
Butler. Harrell explained that he had performed a "data
analysis" on the results of Butler's work—he
"looked at all the data and did a complete
comparison" between the DNA found in K.'s buccal
swab and appellant's buccal swab, "just like I would
with any other case." He testified that he looked at the
raw data and every piece of documentation and conducted a
complete review of everything in the case. Harrell indicated
that every step of Butler's lab work was documented,
including "where it was done[, ] . . . which
reagents[1] were used[, ]" and the "physical
location" where each step in the process took place.
Harrell testified that he was able to determine, through
reviewing Butler's raw data, that Butler had conducted
the initial testing correctly. Harrell testified that based
on his raw-data review, he was able to come to his own
conclusion as to the results of the DNA analysis and that he
"reached the same conclusion that [Butler] did."
Harrell
confirmed that he documented his findings in a report, and
that report was admitted into evidence over the objection of
appellant's counsel. Harrell's report contains an
attestation that reads, in pertinent part, that the
report's results "relate only to the items tested
and represent the interpretations/opinions of the undersigned
analyst." Harrell's opinion was that appellant
"cannot be excluded as the biological father of [K.]
when you take into consideration the contribution of [V.C.,
]" that is, the matches between K. and appellant on the
DNA markers identified in his report were 785 billion times
more likely to occur if appellant was K.'s father than
they would if he was not her father.
On
cross-examination, Harrell described how Butler had created
the data that he analyzed to form his opinion about K.'s
paternity. He testified that Butler would have taken a sample
from each swab, placed them in a centrifuge, extracted the
DNA from them, and generated a profile from the resulting
samples. Harrell testified that Butler would have then
compiled the results of her DNA analysis in a report. He
confirmed that Butler's report, which was not offered
into evidence, was retained after Butler's departure from
the crime lab, as were the swabs. Harrell confirmed that he
did not retest the swabs himself.
On
redirect, Harrell testified that "[i]t's not unusual
for our laboratory to have multiple people perform physical
steps of the laboratory work and then have one person do the
analysis for the case file." Harrell explained that the
process of separating lab work from analysis was "not
uncommon at our crime lab or other crime labs throughout the
country."
With
the aid of an interpreter, Ms. Hernandez testified at trial
that she and her family had lived in Mission, Texas. She
explained that in January 2016, appellant went north to find
work and settled in Van Buren, Arkansas. Ms. Hernandez sent
V.C. to Van Buren in March 2016, and she followed in August
2016. Two days after she arrived in Van Buren, appellant told
Ms. Hernandez that V.C. was pregnant. V.C. had her baby, K.,
on January 5, 2017. Ms. Hernandez ...