Alejandro-Alvarez v. State

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          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.

         OPINION

         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.

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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 ...