Raquel-Dieguez v. State , 2015 Ark. App. LEXIS 725 ( 2015 )

Cite as 2015 Ark. App. 626
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-15-235
ISMAEL RAQUEL-DIEGUEZ Opinion Delivered November 4, 2015
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CR-2013-351-6]
STATE OF ARKANSAS HONORABLE MARK LINDSAY,
APPELLEE JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Ismael Raquel-Dieguez was convicted by a jury of delivery of methamphetamine
weighing more than 10 grams but less than 200 grams, and he was sentenced to a term of
eighteen years’ imprisonment in the Arkansas Department of Correction. The charge against
him arose from a controlled buy in Springdale, Arkansas, on August 22, 2012. He now
appeals, raising two points. First, he contends that the trial court abused its discretion by
denying his motions for a mistrial because he was denied his rights under the Confrontation
Clause and because of prejudicial statements by the State and the court in rebuttal closing
argument. Second, he contends that the trial court erred by receiving into evidence a
substance that was not authenticated by a proper chain of custody. We affirm.
Appellant made the first of several motions for a mistrial after this portion of the State’s
opening statement:
The methamphetamine was processed by the local DEA office, packaged for shipment,
Cite as 2015 Ark. App. 626
and shipped down to the South Central Laboratory, federal laboratory, in Dallas,
Texas. The methamphetamine actually got tested twice. It was found to be an ounce
of methamphetamine. It was 99 percent pure. It was methamphetamine.
Appellant based his mistrial motion on the State’s reference to two tests, “one of which is
inadmissible as a matter of law . . . the analyst who performed that test is not present here at
trial to testify and be cross-examined on that testing.” The trial court denied the motion as
well as appellant’s subsequent motions for a mistrial.
The State’s evidence at trial included testimony by Detective Alex Amaya of the
Rogers Police Department, who worked as a task-force undercover officer for the Drug
Enforcement Administration (DEA); Hilda Lemus-Orellana, the DEA’s confidential informant
who purchased the substance purported to be methamphetamine; and Paul Galat, a senior
forensic chemist at the DEA’s South Central Laboratory in Dallas, Texas. Over appellant’s
objections, the State introduced into evidence both Galat’s September 10, 2014 laboratory
report on the substance that appellant had sold in the controlled buy and a sealed bag
containing the tested substance.1 The report, which was positive for methamphetamine
hydrochloride, contained the following statement: “Amended report to reflect re-analysis.
Refer to original laboratory report dated 12-26-2012.” The State did not seek to admit the
original laboratory report; nor did it call as a witness the chemist who performed the original
analysis.
According to the testimony in this case, Hilda Lemus-Orellana and Detective Amaya
1
Appellant’s objections included allegations of confrontation violations and an
insufficient chain of custody, which we discuss later in this opinion.
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drove together to a Wal-Mart parking lot after Lemus-Orellana arranged to buy
methamphetamine from appellant for $1850. Appellant arrived in his car and Lemus-Orellana
got in; she paid him, and he sold her a substance purported to be methamphetamine. She got
back in Amaya’s vehicle and put a baggie containing the substance on the console. Amaya
field tested “residue in the teeth at the top of the ziplock part of the bag,” which was positive
for methamphetamine. After the substance was packaged and weighed by DEA agents, it was
sent to the DEA’s South Central Laboratory in Dallas, Texas—which is responsible for
analyzing and storing all drug evidence that DEA collects. The substance remained there until
it was needed for appellant’s trial.
Paul Galat testified that chemists at the South Central Laboratory accept only envelopes
that have been sealed by DEA agents and sent to the laboratory’s vault. The laboratory’s
chain-of-custody report for the substance in this case showed that the substance was stored
in the vault after it was received at the laboratory, Galat checked it out and turned it back in,
and it later was sent to Arkansas for trial. Galat determined in his testing that the gross weight
was 60.8 grams. He performed a marquis-color test that indicated the substance could be
methamphetamine and a test that confirmed the presence of methamphetamine. After
obtaining a net weight of 27.4 grams—the weight without the packaging—Galat ground the
methamphetamine into a fine powder in order to perform instrumental tests, including a
“liquid chromatography” test to determine purity. Galat’s report of his test
results—methamphetamine hydrochloride with a purity of 99.2 percent—used the same case
number that was on the bag of methamphetamine. Galat said that he could tell that the
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evidence had not been tampered with because the bag had his seal and evidence sticker at the
bottom, the agent’s intact seal on the top, and the manufacturer’s seals on the sides, and
because everything inside it had Galat’s initials and the date of his analysis.
Outside the presence of the jury, Galat stated in voir dire that another analyst, Dustin
Barr, previously had tested the methamphetamine. Galat confirmed from the chain-
of-custody document that Barr had checked out the methamphetamine on November 19–20
and on December 21–26, 2012. Barr prepared his laboratory report on December 26, 2012,
and it was approved by the acting laboratory director five days later. Galat had not observed
the previous testing but knew that Barr had done it because Barr’s initials were on the bag and
he had prepared a report. Galat explained that his supervisor asked him to retest the
methamphetamine in order to testify as a witness in this case because a medical condition
prevented Barr from traveling.
In closing argument, appellant referred to Barr and to the periods of time that he had
checked out the methamphetamine in the laboratory:
[The prosecutor is] going to tell you that none of this matters. He’s going to tell you
not to worry about it. Don’t worry about Mr. Barr. Don’t worry about what
happened to the evidence back in 2012 twice, two days, two periods of time, one day,
five days over the holidays. Don’t worry about that. It doesn’t matter.
The State responded in rebuttal closing argument, “You heard [defense counsel] mention
Dustin Barr. Why isn’t he here? They didn’t call him.” Appellant objected and moved for
a mistrial:
DEFENSE COUNSEL: Objection. The defendant has no burden whatsoever to
call witnesses in this case.
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THE COURT: You have no burden of proof. But you are allowed to
subpoena witnesses.
....
PROSECUTOR: I’ll continue. We didn’t call Mr. Barr here. There were
reasons. Don’t you think if there were shenanigans that
he would be subpoenaed by the defense? Look closer.
DEFENSE COUNSEL: We renew our motion for a mistrial.
THE COURT: Denied.
Appellant then moved for a mistrial on the grounds of confrontation. And again, his motion
was denied.
I. Whether the Trial Court Abused its Discretion by Denying Appellant’s Motions for a Mistrial
Appellant contends that the trial court abused its discretion by denying his motions for
a mistrial based on violation of his Sixth Amendment confrontation rights and on prejudicial
remarks by the State and the court during the State’s rebuttal closing argument. Questions
of constitutional interpretation, such as whether there has been a Confrontation Clause
violation, are subject to de novo review. E.g., Seely v. State, 373 Ark. 141, 145, 282 S.W.3d
778, 782 (2008). The decision to deny a motion for mistrial is not reversed unless the circuit
court abused its discretion. Rodriguez v. State, 2014 Ark. App. 660, at 11, 449 S.W.3d 306,
313.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” Much of the argument in the present case focuses on United States Supreme Court
decisions involving the Confrontation Clause and the necessity of witnesses when the
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prosecution’s case involves forensic reports.
In Crawford v. Washington, 541 U.S. 36, 59, (2004) the Court held that “[t]estimonial
statements of witnesses absent from trial are admissible only where the declarant is unavailable,
and only where the defendant has had a prior opportunity to cross-examine.” Two
subsequent cases, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New
Mexico, ___ U.S. ___, 131 S. Ct. 2705, 2710 (2011), involved the prosecution’s introduction
of forensic reports containing “a testimonial certification, made in order to prove a fact at a
criminal trial.” Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 2223 (2012). The
prosecution in Melendez-Diaz entered into evidence “certificates of analysis” to show that
substances had been analyzed and were found to be cocaine; the certificates consisted of sworn
affidavits by analysts who did not testify at trial. 557 U.S. at 308. The Court determined that
the affidavits were testimonial, thereby implicating Melendez-Diaz’s right of confrontation.
Id. at 310–11. In Bullcoming, where the analyst who performed the tests was on unpaid leave
for an unrevealed reason, and another analyst from the same lab testified about the tests, the
Court held that “[t]he analysts who write reports that the prosecution introduces must be
made available for confrontation.” Id. at 2715.
In Melendez-Diaz, supra, the Court recognized the constitutionality of
notice-and-demand statutes in states such as Arkansas requiring the prosecution to notify the
accused of its intent to use an analyst’s report as evidence at trial, after which the defendant
is given a period of time to object to the admission of the evidence absent the analyst’s
appearance at trial. Arkansas Code Annotated section 12-12-313 (Supp. 2013), entitled
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Records as evidence—Analyst’s testimony, reads in relevant part:
(d)(1) All records and reports of an evidence analysis of the laboratory shall be received
as competent evidence as to the facts in any court or other proceeding when duly
attested to by the analyst who performed the analysis.
(2) The defendant shall give at least ten (10) days’ notice prior to the proceedings that
he or she requests the presence of the analyst of the laboratory who performed the
analysis for the purpose of cross-examination.
(3) Nothing in this subsection shall be construed to abrogate the defendant’s right to
cross-examine.
Appellant argues that, because he filed a timely notice “demanding the presence of all
forensic analysts that tested the substance for the purpose of cross-examination,” he had a
Sixth Amendment right to confront the first chemist about his competency with the
procedures, processing, and testing methods that he used. We agree with the State that there
was no Confrontation Clause violation. The cases on which appellant relies are
distinguishable.
In Bullcoming, a driving-while-intoxicated case, the prosecution introduced “a forensic
laboratory report containing a testimonial certification—made for the purpose of proving a
particular fact—through the in-court testimony of a scientist who did not sign the certification
or perform or observe the test reported in the certification.” ___ U.S. at ___ , 131 S. Ct.
at 2710. The Court held that such “surrogate testimony”—concerning alcohol concentration
in the accused’s blood—did not meet the constitutional requirement of the Confrontation
Clause. Id. “The accused’s right is to be confronted with the analyst who made the
certification, unless that analyst is unavailable at trial, and the accused had an opportunity,
pretrial, to cross-examine that particular scientist.” Id.
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The prosecution in the present case introduced Galat’s 2014 laboratory report into
evidence and did not introduce the original laboratory report from Barr’s analysis. Because
the State did not seek to introduce Barr’s report, there was no obligation to make him
available for cross-examination.2 Appellant’s confrontation rights were satisfied by the
opportunity to cross-examine Galat on the retesting that he performed. See Melendez-Diaz,
557 U.S. at 311, n.1 (rejecting the dissent’s suggestion “that anyone whose testimony may be
relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the
testing device, must appear in person as part of the prosecution’s case”). The circumstances
surrounding Barr, whose absence was explained, and his laboratory report did not fall within
the ambit of Melendez-Diaz, Bullcoming, or Arkansas Code Annotated section 12-12-313.
Appellant also argues that the circuit court abused its discretion by refusing to grant a
mistrial following allegedly prejudicial statements by the prosecutor during rebuttal closing
argument. Remarks in closing that require reversal are rare and must have appealed to jurors’
passions. Delatorre v. State, 2015 Ark. App. 498. Furthermore, the State is permitted in
rebuttal to comment on matters that were discussed or invited by the appellant’s preceding
closing argument. Neble v. State, 26 Ark. App. 163, 170, 762 S.W.2d 393, 397 (1988).
Appellant complains that he was prejudiced by the prosecutor’s statements, “Why isn’t
[Barr] here? They didn’t call him,” because the jury was left with the incorrect impression that
it was appellant’s duty to secure Barr’s presence at trial. He also argues that the trial court’s
2
We note that appellant declined the trial court’s offer to redact the portion of Galat’s
report that referred to Barr’s earlier analysis.
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statement, “You have no burden of proof. But you are allowed to subpoena witnesses,”
incorrectly assigned the burden of producing witnesses for cross-examination to the appellant
rather than to the State.
Appellant opened the door to the prosecutor’s statements by referring to Barr multiple
times in his closing statement, apparently attempting to show flaws in the chain of custody of
the substance tested. Appellant noted Barr’s initials on the bag of methamphetamine; he
referred to the statement in Galat’s report, “this is an amended report to reflect re-analysis,
refer to original laboratory report, dated 12/26/2012”; and he characterized dates on the
chain-of-custody log when Barr checked out the methamphetamine as “two unexplained
periods of time.” Finally, he argued that the prosecutor “will say don’t worry about Mr. Barr
or what happened to the evidence in 2012.” As discussed earlier in this opinion, appellant had
no constitutional right to cross-examine Barr. The trial court’s statement that appellant had
no burden of proof but was allowed to subpoena witnesses was a correct statement of law.
See Marks v. State, 375 Ark. 265, 273, 289 S.W.3d 923, 929 (2008) (stating the fundamental
principle of criminal law that the State has the burden of proving the defendant guilty beyond
a reasonable doubt). A defendant is not entitled to rely on the State’s subpoena or witness list
for his own defense because the accused is not entitled to rely on discovery as a substitute for
his own investigation. Tatum v. State, 2011 Ark. App. 80, at 8, 381 S.W.3d 124, 128.
The circuit court is given broad discretion to control counsel in closing arguments, and
appellate courts do not interfere with such discretion absent a manifest abuse of it. E.g.,
Wetherington v. State, 319 Ark. 37, 41, 889 S.W.2d 34, 36 (1994). The State is allowed to
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“fight fire with fire” once the defendant has opened the door to a line of argument, and what
might have been impermissible becomes permissible. Lee v. State, 326 Ark. 529, 532, 932
S.W.2d 756, 759 (1996). Here, the prosecutor addressed appellant’s pointed references to
Barr, responding that the State was not hiding anything by not calling him as a witness and
that appellant could have subpoenaed him for questioning.
When there is doubt as to whether the trial court abused its discretion, a failure to
request an admonition will negate a mistrial motion. Martin v. State, 2013 Ark. App. 110, at
9, 426 S.W.3d 515, 520. Although appellant moved for a mistrial, he never sought a jury
admonition. We hold that the trial court did not abuse its discretion by denying appellant’s
motions for a mistrial.
II. Whether the Trial Court Abused its Discretion by Admitting the Methamphetamine into
Evidence
Appellant argues that the circuit court abused its discretion by admitting the
methamphetamine into evidence because the State failed to establish a chain of custody for
the time that Barr handled it. We do not reverse a circuit court’s ruling on the admissibility
of evidence absent a showing that the court abused its discretion. Jackson v. State, 2010 Ark.
App. 359, at 17–18, 374 S.W.3d 857, 868.
Authentication requirements are satisfied if the trial court, in its discretion, concludes
that the evidence presented is genuine and that, in reasonable probability, it has not been
tampered with or altered in any significant manner. Chatmon v. State, 2015 Ark. 28, 467
S.W.3d 731; Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001); Crisco v. State, 328 Ark.
388, 943 S.W.2d 582 (1997). Nor is it necessary that every possibility of tampering be
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eliminated. Crisco, 328 Ark. 388, 943 S.W.2d 582. Minor uncertainties in the proof of chain
of custody are matters to be argued by counsel and weighed by the jury, but they do not
render the evidence inadmissible as a matter of law. Hawkins v. State, 81 Ark. App. 479, 481,
105 S.W.3d 397, 398 (2003). Proof of the chain of custody for interchangeable items like
blood or drugs needs to be more conclusive than for other evidence. Id.
Appellant argues that any analyst who handles the actual substance is an indispensable
witness, and that the State could not adequately establish the chain of custody of the
methamphetamine without Barr’s testimony. To the contrary, we have stated that it is not
necessary that “every moment from the time the evidence comes into the possession of a
law-enforcement agency until it is introduced at trial be accounted for by every person who
could have conceivably come in contact with the evidence.” Jackson, 2010 Ark. App. 359,
at 17, 374 S.W.3d at 868.
Appellant alleges that the State failed to establish a proper chain of custody due to
inconsistencies in Barr’s handling of the methamphetamine. Appellant notes a lack of
testimony about the time when Barr possessed the methamphetamine and about Barr’s
procedures when analyzing it. Appellant alleges that Barr altered the appearance of the
methamphetamine during his analysis, that the weight of the methamphetamine varied
between what was recorded by the DEA officers and what the two analysts recorded, and that
there were inconsistencies between results of color tests in the field and in the laboratory.
In his testimony, Galat accounted for minor discrepancies in the weight and appearance
of the methamphetamine between the time of its arrival at the laboratory and its introduction
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into evidence at trial. Addressing the differences in weight—Barr reported a gross weight of
59.3 grams and a net weight of 27.9 grams, and Galat reported a gross weight of 60.8 grams
and a net weight of 27.4 grams—Galat explained that Barr recorded a reserve weight (“what’s
left over”) of 27.5 grams, meaning that he used .4 grams during testing. Thus, there was only
a .1 gram difference in the reserve weight recorded by Barr and the net weight recorded by
Galat. Galat also explained that the 1.5 gram difference between the gross weights he and
Barr recorded occurred because, after Barr initially weighed the substance in its Ziploc bag
and recorded the gross weight, he emptied the first bag and put it into a new Ziploc bag.
Galat explained that the new bag, along with stickers on it, accounted for the gross-weight
differences.
Galat also explained why Barr may have checked the methamphetamine out of the
vault twice:
[I]t’s not uncommon for us to check out a piece of evidence and not analyze it and
turn it back in. Because maybe you check out a piece of evidence, and then your boss
wants you to work on this rush that’s going to court the next week. So then you
analyze this one and you don’t get to that one, and you turn it back into the vault and
you recheck it out . . . . So it’s not a big mystery or anything.
He explained the many safeguards and layers of security in place at the laboratory to prevent
misappropriation or substitution of drugs. He explained that, before he checked out the
sealed bag of methamphetamine, he knew that Barr had previously tested the same substance:
Barr created a report, his initials were on the sealed bag, and the chain-of-custody statement
indicated the exact dates in November and December 2012 that Barr possessed the evidence.
Galat explained that Barr’s 2012 report did not indicate specific tests he performed
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because, in 2012, the laboratory had not yet switched to a newer computer system in which
all analysts listed in their reports every test that was performed. Galat addressed appellant’s
allegation that Barr changed the appearance of the methamphetamine, explaining that Barr
listed in his laboratory notes that he ground and sifted the methamphetamine during his
analysis—just as Galat did—which Galat described as standard practice and not new.
Finally, appellant argues that different results between the color tests performed in the
field and in the laboratory indicate a break in the chain of custody. He points to Crisco v.
State, supra, where the substance was described differently by the undercover officer and the
chemist, and the State was required to do more to establish the authenticity of the drug tested
than merely trace the route of the envelope containing the substance. Appellant has failed to
preserve this argument for appeal because it was not part of his chain-of-custody argument
below as to the admission of the methamphetamine. Parties cannot change the grounds for
an objection on appeal. E.g., Tavron v. State, 372 Ark. 229, 231, 273 S.W.3d 501, 502
(2008).
The circuit court found that the State established by a reasonable probability that the
evidence had not been tampered with. We find no abuse by the circuit court in admitting
the methamphetamine into evidence over appellant’s chain-of-custody arguments.
Affirmed.
GLADWIN, C.J., and HARRISON, J., agree.
Jessica L. Carnes, P.A., by: Jessica L. Carnes, for appellant.
Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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