State v. Hill ( 2014 )


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  •                                NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
    AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    ODECE DEMPSEAN HILL, Appellant.
    No. 1 CA-CR 12-0627
    FILED 11-04-2014
    Appeal from the Superior Court in Maricopa County
    No. CR2011-143399-001
    The Honorable Connie Contes, Judge
    JUDGMENT AFFIRMED AS MODIFIED
    COUNSEL
    Arizona Attorney General's Office, Phoenix
    By Craig W. Soland
    Counsel for Appellee
    Janelle A. McEachern Attorney at Law, Chandler
    By Janelle A. McEachern
    Counsel for Appellant
    Odece Dempsean Hill, Florence
    Appellant
    STATE v. HILL
    Decision of the Court
    MEMORANDUM DECISION
    Chief Judge Diane M. Johnsen authored the decision of the Court, in which
    Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.
    J O H N S E N, Chief Judge:
    ¶1             This appeal was timely filed in accordance with Anders v.
    California, 
    386 U.S. 738
    (1967), and State v. Leon, 
    104 Ariz. 297
    , 
    451 P.2d 878
    (1969), following Odece Dempsean Hill's conviction of one count of first-
    degree burglary, a Class 2 felony; four counts of kidnapping, Class 2
    felonies; seven counts of sexual assault, Class 2 felonies; one count of
    attempted sexual assault, a Class 3 felony; and four counts of aggravated
    assault, Class 3 felonies. The court sentenced Hill to consecutive and
    concurrent sentences of imprisonment totaling 91.5 years. Hill's counsel
    searched the record on appeal and found no arguable question of law that
    is not frivolous. See Smith v. Robbins, 
    528 U.S. 259
    (2000); Anders, 
    386 U.S. 738
    ; State v. Clark, 
    196 Ariz. 530
    , 
    2 P.3d 89
    (App. 1999). Counsel now asks
    this court to search the record for fundamental error. Hill has filed a
    supplemental brief identifying certain issues, which we address below.
    After reviewing the entire record, we affirm Hill's convictions and
    sentences, but modify the judgment of conviction to omit the requirement
    that Hill pay for the cost of DNA testing.1
    DISCUSSION
    A.     Hill's Supplemental Brief.
    1.     Hearsay.
    ¶2           Hill argues a statement the now-deceased victim made to a
    forensic nurse who testified at trial was hearsay admitted in violation of
    Arizona Rules of Evidence 802 and 803. Because Hill objected to the
    1      We directed counsel for Hill and for the State to file briefs concerning
    whether his rights under the Confrontation Clause were violated by the
    testimony of a forensic nurse who examined the victim of the sexual
    assaults. See Penson v. Ohio, 
    488 U.S. 75
    , 86-88 (1988). We address that issue
    in a separate opinion. See Ariz. R. Crim. P. 31.26.
    2
    STATE v. HILL
    Decision of the Court
    statement's admission at trial and in limine, we review the superior court's
    hearsay ruling for an abuse of discretion. See State v. Tucker, 
    205 Ariz. 157
    ,
    165, ¶ 41, 
    68 P.3d 110
    , 118 (2003).
    ¶3              Before trial, the State moved in limine to admit the victim's
    statement to the nurse, arguing it fell within the exceptions to the rule
    against hearsay applicable to an excited utterance, present sense impression
    and statement made for medical diagnosis or treatment. See Ariz. R. Evid.
    803(1), (2), (4). The court concluded the statement fell within "one or both
    or all three" of the cited exceptions. On appeal, Hill argues only that the
    excited-utterance exception did not apply, and therefore waives any
    argument that the statement was admissible under the exception to the rule
    against hearsay applicable to statements made for medical diagnosis or
    treatment. Ariz. R. Evid. 803(4); see State v. Robinson, 
    153 Ariz. 191
    , 199, 
    735 P.2d 801
    , 809 (1987) (sexual assault victim's statements to practitioner
    describing assault admissible under Rule 803(4)); State v. Lopez, 
    217 Ariz. 433
    , 436, ¶ 12, 
    175 P.3d 682
    , 685 (App. 2008) (victim's statements to nurse
    performing a sexual assault examination admissible under same rule).
    2.     Best evidence rule.
    ¶4            Hill argues the superior court improperly admitted a
    handwritten diagram of the mattress from which DNA samples were taken.
    The diagram documented where biological evidence was located on the
    mattress. The diagram, Hill contends, violates Arizona Rule of Evidence
    1002, the best evidence rule, "because the original was available." There is
    no merit to this contention. The best evidence rule applies only to situations
    in which a party seeks to prove the terms of a writing, such as a contract,
    and does not apply in this context. See State v. Smith, 
    122 Ariz. 58
    , 62, 
    593 P.2d 281
    , 285 (1979).
    3.     DNA evidence.
    ¶5              Hill raises various challenges to the DNA evidence admitted
    at trial. First, he asserts the jury was improperly allowed to hear that the
    DNA from his buccal swab was a perfect match to the DNA sample from
    the mattress cuttings found at the scene. The DNA samples collected from
    the cuttings, he argues, were degraded, making it impossible to get a perfect
    match.
    ¶6             Hill, however, points to no evidence, scientific or otherwise,
    to support his assertion that a perfect match cannot be obtained from a
    degraded DNA sample. Indeed, some biochemical techniques are used
    specifically to enable analysis of degraded DNA samples. See, e.g., State v.
    3
    STATE v. HILL
    Decision of the Court
    Tankersley, 
    191 Ariz. 359
    , 362, ¶ 7, 
    956 P.2d 486
    , 489 (1998) ("[Polymerase
    chain reaction] is a process for reproducing a short segment of DNA
    millions of times, making it possible to analyze minute or degraded
    samples."), abrogated on other grounds by State v. Machado, 
    226 Ariz. 281
    , 283,
    ¶¶ 11-13, 
    246 P.3d 632
    , 634 (2011). Moreover, the forensic analyst who
    testified at trial told the jury that the sample that was tested was degraded
    and that, sometimes, with degraded samples, a full DNA profile may not
    be obtained. The analyst testified she was able to obtain a profile from three
    out of the seven mattress samples, but that testimony did not amount to
    providing the jury with misinformation. See State v. Gulbrandson, 
    184 Ariz. 46
    , 65, 
    906 P.2d 579
    , 598 (1995) (reviewing court does not substitute its
    judgment for that of the jury and does not reweigh evidence).
    ¶7            Next, Hill argues that his due process rights were violated
    because he was not allowed an independent "secondary DNA analysis."
    The record does not support this assertion. At trial, the investigating officer
    testified that samples of DNA evidence were forwarded to Hill to
    independently test; the record demonstrates that Hill, in fact, did
    independently test such evidence.
    ¶8             Finally, Hill contends that "the impound record of evidence
    collected at the crime scene was forged." Specifically, he points to the fact
    that the detective's name is listed as the officer who submitted all evidence
    collected from the apartment, despite the fact that she testified at trial that
    she did not submit or impound any evidence from the crime scene. Hill's
    argument is not entirely clear; he does not identify a ruling by the superior
    court he intends to challenge. He does argue, however, that the evidence
    was "unreliabl[e]" and may not have been "true and correct." We interpret
    this argument as a challenge to the admissibility of all evidence collected
    from the crime scene - including the mattress cuttings from which Hill's
    DNA was extracted - due to a deficiency in the chain of custody or a lack of
    adequate foundation.
    ¶9            Normally, "[a] trial court's conclusion that evidence has an
    adequate foundation is reviewed for an abuse of discretion." State v.
    McCray, 
    218 Ariz. 252
    , 256, ¶ 8, 
    183 P.3d 503
    , 507 (2008). In this case,
    however, Hill did not object to the evidence, and we therefore review its
    admission for fundamental error. State v. Henderson, 
    210 Ariz. 561
    , 567, ¶
    19, 
    115 P.3d 601
    , 607 (2005).
    ¶10          Whether sufficient foundation exists is governed by Arizona
    Rule of Evidence 901(a). State v. Lavers, 
    168 Ariz. 376
    , 386, 
    814 P.2d 333
    , 343
    (1991). The rule provides: "To satisfy the requirement of authenticating or
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    STATE v. HILL
    Decision of the Court
    identifying an item of evidence, the proponent must produce evidence
    sufficient to support a finding that the item is what the proponent claims it
    is." Ariz. R. Evid. 901(a). Authentication based on a chain of custody only
    requires "continuity of possession"; the proponent of the evidence need not
    disprove every possibility of tampering. 
    McCray, 218 Ariz. at 256
    , ¶ 
    9, 183 P.3d at 507
    (internal quotations omitted); see also Melendez-Diaz v.
    Massachusetts, 
    557 U.S. 305
    , 336 (2009) (law does not require in-court
    testimony from each human link in chain of custody). Evidence may be
    admitted "notwithstanding the inability of the state to show a continuous
    chain of custody . . . unless a defendant can offer proof of actual change in
    the evidence, or show that the evidence has, indeed, been tampered with."
    State v. Ritchey, 
    107 Ariz. 552
    , 557, 
    490 P.2d 558
    , 563 (1971).
    ¶11             Hill has not presented any information suggesting a
    likelihood the evidence was tampered with. In fact, Hill stipulated at trial
    that "the items tested at the lab [were] the same items taken from the crime
    scene . . . ." Even apart from the stipulation, the record contains evidence
    of an adequate chain of custody. The detective testified the scene was
    secured prior to the investigation and that all evidence collected there was
    recorded. A forensic investigator testified she collected the mattress cover
    from the apartment, which was later cut, and a DNA analyst confirmed that
    these cuttings were properly sealed, labeled and initialed when she
    retrieved the items to test. Moreover, to the extent evidence of this chain of
    custody conflicts with other evidence, such "concerns go to the weight
    rather than the admissibility of the evidence." 
    McCray, 218 Ariz. at 257
    , ¶
    
    15, 183 P.3d at 508
    ; see also State v. Morales, 
    170 Ariz. 360
    , 365, 
    824 P.2d 756
    ,
    761 (App. 1991). We therefore find no error, much less fundamental error,
    in the superior court's decision to admit evidence that Hill's DNA was
    found on material collected from the apartment.
    B.     Due Process Review.
    ¶12            The record reflects Hill received a fair trial. He was
    represented by counsel at all stages of the proceedings against him and was
    present at all critical stages, with the exception of the first day of voir dire,
    for which his counsel waived his presence. Pursuant to Arizona Rule of
    Evidence 609, the court held a hearing on Hill's prior convictions and
    allowed him to be impeached with sanitized evidence of his prior felony
    conviction. The court did not conduct a voluntariness hearing, but the
    record did not suggest a question about the voluntariness of Hill's
    statements to police. See State v. Smith, 
    114 Ariz. 415
    , 419, 
    561 P.2d 739
    , 743
    (1977); State v. Finn, 
    111 Ariz. 271
    , 275, 
    528 P.2d 615
    , 619 (1974).
    5
    STATE v. HILL
    Decision of the Court
    ¶13            The State presented both direct and circumstantial evidence
    sufficient to allow the jury to convict. The jury was properly comprised of
    12 members. The court properly instructed the jury on the elements of the
    charges, the State's burden of proof and the necessity of a unanimous
    verdict. The jury returned a unanimous verdict which was confirmed by
    juror polling. The court received and considered a presentence report,
    addressed its contents during the sentencing hearing and imposed legal
    sentences for the crimes of which Hill was convicted.
    ¶14           Our review reveals that in sentencing Hill, the superior court
    ordered Hill to "submit to DNA testing for law enforcement identification
    purposes and pay the applicable fee for the cost of that testing." In State v.
    Reyes, 
    232 Ariz. 468
    , 472, ¶ 14, 
    307 P.3d 35
    , 39 (App. 2013), this court held
    that Arizona Revised Statutes section 13-610 (2013), which authorizes the
    collection of DNA samples for certain law enforcement purposes, does not
    authorize the court to impose a DNA testing fee on a convicted defendant.
    We therefore hold that pursuant to Reyes, which was issued after Hill was
    sentenced, the court erred by imposing the fee, and we modify the
    judgment of conviction to omit the requirement that Hill pay for the cost of
    DNA testing.
    CONCLUSION
    ¶15          We have reviewed the entire record for reversible error, and,
    with the exception of the requirement that Hill pay for DNA testing, we
    find none. See 
    Leon, 104 Ariz. at 300
    , 451 P.2d at 881.
    ¶16          After the filing of this decision, defense counsel's obligations
    pertaining to Hill's representation in this appeal have ended. Defense
    counsel need do no more than inform Hill of the outcome of this appeal and
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    STATE v. HILL
    Decision of the Court
    his future options, unless, upon review, counsel finds "an issue appropriate
    for submission" to the Arizona Supreme Court by petition for review. See
    State v. Shattuck, 
    140 Ariz. 582
    , 584-85, 
    684 P.2d 154
    , 156-57 (1984). On the
    court's own motion, Hill has 30 days from the date of this decision to
    proceed, if he wishes, with a pro per motion for reconsideration. Hill has 30
    days from the date of this decision to proceed, with a pro per petition for
    review.
    :gsh
    7