Opinion
Court of Appeals No. A-8749.
April 5, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Elaine M. Andrews, Judge. Trial Court No. 3AN-95-8570 CR.
Kathleen M. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Noel Dupree Sutton contends that the superior court erred by allowing the State to argue that Sutton's expert should have repeated a paternity test that the expert claimed was improperly performed by the State's expert. Sutton claims that this line of argument improperly shifted the State's burden of proof. Sutton also claims that the superior court should have declared a mistrial sua sponte. We reject Sutton's claims. Sutton has not shown that the prosecutor's closing argument created the manifest necessity that would warrant a trial judge declaring a mistrial sua sponte.
Facts and proceedings
The grand jury indicted Sutton for second-degree sexual abuse of a minor for engaging in sexual intercourse with M.B., a fifteen-year-old girl who identified Sutton as the father of her child.
AS 11.41.436(a)(1).
At trial, to support M.B.'s testimony that she had intercourse with Sutton, the State offered statistical evidence from DNA testing that indicated a 99.99 percent probability that Sutton was the father of M.B.'s child. The DNA testing was completed at the Washoe County crime laboratory in Reno, Nevada. Rene Romero, the criminalist who performed the testing, described the procedures she followed to conduct the testing and how she calculated the 99.99 percent probability that Sutton fathered M.B.'s child.
As part of his defense, Sutton claimed that the paternity test Romero performed was inaccurate. Sutton presented the testimony of Dr. Randell T. Libby, who was qualified as an expert in forensic DNA analysis. Libby reviewed the procedure followed at the Washoe laboratory, and he testified that the procedure Romero used (when testing the DNA) did not comply with the standards established by the American Association of Blood Banks (AABB). (Romero had already conceded that the AABB had not certified the Washoe laboratory for paternity testing.) Libby asserted that Romero's results were unreliable because her lab did not comply with those standards.
During the State's cross-examination of Libby, Sutton requested a protective order prohibiting the State from asking Libby whether he performed a paternity retest to challenge (or verify) Romero's results. Sutton claimed that this inquiry might create the impression that Sutton had a burden of proof. The prosecutor said he intended to ask this question because it was relevant to the jury's evaluation of Libby's testimony. The prosecutor noted that the AABB standards recommended retesting as the best way to verify the results of a paternity test. Superior Court Judge Elaine M. Andrews ruled that the prosecutor's question was a "legitimate means of attacking [Libby]." Judge Andrews also indicated that she would consider a cautionary instruction to the jury to emphasize that the State, and not Sutton, had the burden of proof.
Before the jury, the prosecutor then asked Libby if he had retested the evidence in Sutton's case. Libby replied: "[T]hat was not part of my duties."
During the prosecutor's rebuttal closing argument, the prosecutor pointed out that Libby had not checked Romero's results by performing another paternity test, and he then speculated about Libby's thought processes:
Prosecutor: Dr. Libby, rather than retest [the blood samples,] which is the recommended and the logical way to determine whether [Romero's] results are accurate or not . . . he didn't have [the blood samples] retested. . . . The bottom line is he had the opportunity. He chose not to because he knows [Romero's] results are valid. It's as simple as that. There can be no explanation for not retesting this blood, no other explanation.
Sutton objected, arguing that the prosecutor was shifting the burden of proof to the defense, and he asked for a limiting instruction that the prosecutor's argument was "a completely inappropriate argument." In response, Judge Andrews immediately gave the jury the following oral cautionary instruction:
The Court: The defense has no burden of proof in the case. The state may attack the credibility of defense witnesses, and they may do that by attacking the method and means by which [the defense witnesses] challenge the state's evidence. But the defense in and of itself has no burden of proof in this case.
So you may consider the state's arguments only as they reflect on your assessment of the credibility and the weight to give Dr. Libby's testimony. You may not consider [the prosecutor's] remarks as suggesting in any fashion that the defense has any duty of producing any evidence because the burden is entirely on the state in a criminal case.
Sutton did not ask for any additional oral instruction. The prosecutor immediately emphasized the court's instruction, repeating that Sutton had no burden of proof regarding the paternity test.
The court gave the jury its final instructions, which included the standard instruction that the arguments of the attorneys "are not evidence" and arguments that "depart from the facts . . . should be disregarded." The jury retired to deliberate.
After the jury left the courtroom, Sutton then asked Judge Andrews to reduce the oral cautionary instruction set out above to writing and provide it to the jury. The court declined Sutton's request for a written instruction, noting that, in the court's view, the State's closing argument did not shift the burden to Sutton, and the oral instruction was sufficient to prevent any juror's potential confusion. Sometime later that day, Sutton filed a proposed written jury instruction, but the court and the parties did not discuss this instruction before the jury returned its verdict.
The jury convicted Sutton of second-degree sexual abuse of a minor. Sutton appeals.
Discussion
Sutton argues that, when the prosecutor stated in his closing argument that Libby's failure to redo the paternity test indicated that Libby believed the test was accurate, the State "squarely placed the burden on the defense to produce evidence." Sutton then argues that the superior court should have declared a mistrial sua sponte.
Sutton defended by asserting that he had not had sexual intercourse with M.B. and that he was not the father of M.B.'s child. Libby's testimony was designed to undermine the DNA testing and analysis offered by Romero. During Libby's cross-examination, the prosecutor pointed out a potential weakness in Libby's review of the State's testing: Libby based his assessment that Romero's testing was inaccurate on the lab's failure to follow the AABB protocol for paternity testing. The State pointed out that the AABB recommended retesting the samples to verify the original result, a procedure that Libby did not follow. The prosecutor's cross-examination and closing argument highlighted this potential contradiction to question the weight of Libby's opinion that Romero's testing was unreliable.
See Osborne v. Hurst, 947 P.2d 1356, 1362 n. 2 (Alaska 1997) (the technique an expert uses in formulating an opinion is appropriate for cross-examination and "is relevant to the credibility and weight the trier of fact should give to the testimony").
The prosecutor did not suggest that Sutton had the burden to perform his own test. Instead, he pointed out that Libby had a more effective means of impeaching Romero's testing and that Libby did not pursue it. The prosecutor did not argue that Sutton had a burden to show he was not the father of the child. Instead, he argued that Libby's opinion on the reliability of Romero's testing was weakened because Libby did not retest the evidence. This line of argument did not shift the burden of proof to Sutton.
See Simpson v. State, 796 P.2d 840, 842-43 (Alaska App. 1990).
Sutton argues that the superior court should have declared a mistrial because of the prosecutor's final argument. But we have warned trial judges to be cautious before ordering a mistrial a defendant has not requested. Under the double jeopardy clauses, if a trial judge declares a mistrial sua sponte when there is no manifest necessity for the mistrial, the charges against the defendant must be dismissed.
See, e.g., Riney v. State, 935 P.2d 828, 838 (Alaska App. 1997).
See Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001); Riney, 935 P.2d at 838-39; Nelson v. State, 874 P.2d 298, 308 (Alaska App. 1994); March v. State, 859 P.2d 714, 717 (Alaska App. 1993).
Arguably, the prosecutor went beyond a reasonable inference from the evidence when he claimed the only reason Libby did not perform a paternity retest was that he knew Romero's results were valid. But Sutton did not object on this ground to the prosecutor's argument. Instead, he objected that the prosecutor was shifting the burden of proof.
Judge Andrews immediately instructed the jury that the burden of proof remained with the State. The prosecutor continued his rebuttal argument by emphasizing his agreement with that requirement. After the jury retired for deliberations, Judge Andrews denied Sutton's request for a written instruction that mirrored her oral cautionary instruction. But, Sutton does not specifically argue that the failure to provide a written instruction was error. Instead, he argues that the superior court erred when it failed to grant a mistrial sua sponte. Sutton did not move for a mistrial. Under Alaska law, if a party claims that an occurrence at trial requires the court to declare a mistrial, the party must raise this issue before the jury returns its verdict.
See Owens v. State, 613 P.2d 259, 261 (Alaska 1980).
Reviewing the prosecutor's final argument as a whole, we are not convinced that the prosecutor's remarks are the type of egregious and prejudicial misconduct that would create the manifest necessity for a mistrial, whether the defendant moved for a mistrial or not. Accordingly, Sutton has not shown plain error.
See Cook, 36 P.3d at 729.
Conclusion
The judgment of the superior court is AFFIRMED.
The ultimate issue in this case is whether it was plain error for the trial judge not to declare a mistrial sua sponte — since Sutton's attorney never asked for a mistrial, and since the trial judge gave the jury the cautionary instruction that Sutton did ask for (the instruction concerning the State's burden of proof and the fact that the defense has no obligation to affirmatively prove the defendant's innocence).
I agree with my colleagues that the facts of this case fail to demonstrate any manifest necessity for a mistrial. However, I write separately to offer my analysis of the two ancillary issues presented here: the propriety of (1) the prosecutor's cross-examination of the defense expert, Dr. Libby, regarding Libby's failure to re-test the DNA samples, and (2) the prosecutor's contention, during final argument, that Libby's failure to re-test the samples demonstrated Libby's belief that the results of the State's testing were, in fact, accurate.
The defense offered Dr. Libby as an expert on DNA testing protocols. Libby actively criticized the State's laboratory (the Washoe County crime lab) for its failure to follow the testing protocols recommended by the American Association of Blood Banks. However, Libby himself had apparently deviated from these protocols. The Blood Bank protocols prescribe re-testing as the best way to assess the accuracy of a DNA test when the results of that test are questioned, and Libby failed to conduct a re-test. Cross-examination of Libby on this point was relevant to the jury's assessment of how much weight to give Libby's criticisms of the Washoe County laboratory's testing procedures.
Compare this Court's decision in Ansay v. State, 715 P.2d 1194, 1197-98 (Alaska App. 1986), where we held that when a trial court was faced with a defense challenge to the State's procedures for saving and preserving the back-up breath sample taken from a DWI arrestee, the trial court could lawfully require the defendant to present evidence of the results of a laboratory test of that back-up sample. We stated that the trial judge could reasonably decline to decide the defendant's challenge unless, "[in addition to] any evidence . . . of accident, carelessness, error[,] or fraud in the retention of the [breath] sample", the defendant also presented "the actual results of a laboratory test of the sample." Id. at 1198.
Because the Blood Bank protocols call for re-testing when prior test results are questioned, and because Dr. Libby apparently subscribes to these protocols, if Libby had the opportunity to conduct a re-test of the DNA samples in this case, and if he knowingly chose to forego re-testing, this fact would arguably indicate that the jury should not trust Libby's assertion that he doubted the validity of the test conducted by the Washoe County crime laboratory.
The problem in this case arises because, when Libby was asked to explain his failure to conduct a re-test of the DNA samples, he responded that "[this] was not part of [his] duties".
Some or all of the jurors could fairly assume that Sutton's attorney was the person who had prescribed the scope of Libby's "duties". One could potentially infer, from Libby's answer, that Sutton's attorney never asked Libby to conduct a re-test and that Libby never raised this possibility in his discussions with the defense attorney. However, another potential inference was that Libby told the defense attorney that, under the protocols, re-testing was the recommended procedure in this situation, and the defense attorney either did not respond to this information or, alternatively, the defense attorney responded by telling Libby that he did not want a re-test.
Thus, as Sutton points out, the prosecutor's cross-examination of Libby, and Libby's answer to the prosecutor's question, potentially suggested that the defense had consciously decided not to pursue re-testing of the DNA. This raises two inter-related problems: First, might the jurors draw an inference adverse to Sutton from this circumstance? And second, would that inference be proper or improper?
There are no published Alaska cases dealing with the issue of whether a prosecutor may properly point out that the defense has chosen not to re-test physical evidence. However, we dealt with this issue in Timmons v. State, Alaska App. Memorandum Opinion No. 4578, 2002 WL 1174815 (June 5, 2002).
The defendant in Timmons was charged with felony driving while intoxicated, based primarily on a post-arrest breath test which showed that his blood alcohol level was .238 percent. At trial, the defense presented an expert witness who attacked the accuracy of this breath test result. The defense expert testified that there were many contemporaneous factors suggesting the inaccuracy of the test result. The expert told the jury that, under the circumstances, a prudent police officer would have recognized the need either to run the test again or to conduct some other type of confirming test. Id., Memorandum Opinion at 3-4, WL at *2.
However, the jury also heard evidence that, after Timmons took the breath test, he exercised his right to an independent blood test at a hospital. The jury further was told that Timmons's attorney took custody of Timmons's blood samples and held them for a period of time before trial. Id.
During the State's summation to the jury, the prosecutor responded to the defense arguments about the need for a confirming test by pointing out that Timmons exercised his right to have his blood drawn and preserved shortly after the breath test — and, thus, Timmons could have run a confirming test on this blood sample if he had wished to. Id., Memorandum Opinion at 5-6, WL at *3.
At trial, Timmons's attorney did not object to the prosecutor's remark. However, on appeal, Timmons argued that the prosecutor's argument was an infringement of his attorney-client privilege (the aspect of the privilege which protects communications between a defense attorney and the experts hired by the attorney). Timmons asserted that the prosecutor's argument amounted to an implied assertion that Timmons's attorney had tested the blood sample, and that the defense was suppressing the result of the test. Id., Memorandum Opinion at 4-5, WL at *2.
This Court concluded that the prosecutor never made such an argument — and we further concluded that the argument the prosecutor did make was not error:
Given Timmons's contentions that the Intoximeter test was flawed and that any reasonable person would have recognized the necessity of running a second chemical test, and given the undisputed evidence that both of Timmons's blood samples were turned over to Timmons's attorney, one could make a colorable argument that the prosecutor would have been entitled to ask the jury to infer that the blood test results, if introduced, would have proved unfavorable to Timmons. Compare McCurry v. State, 538 P.2d 100, 104 (Alaska 1975), noting the "usual rule" that a prosecutor may comment on a defendant's failure to call a witness when "the witness is peculiarly within the control of the defendant and that witness's testimony can reasonably be expected to elucidate matters already at issue". But the prosecutor did not pursue this line of argument.
See also Quint Cities Petroleum Co. v. Maas, 143 N.W.2d 345, 348 (Iowa 1966): "[When] relevant evidence is within the control of a party whose interests would naturally call for its production, and [the party] fails to do so without satisfactory explanation, it may be inferred [that the] evidence would be unfavorable to [that party]."
The prosecutor never invited the jury to infer that the blood had been tested or that the results had proved unfavorable to Timmons. Indeed, the prosecutor did not even remind the jurors that the blood samples had been released to Timmons's attorneys (as Timmons had stipulated). Instead, the prosecutor simply pointed out even though the arresting officer had not performed a second chemical test, the officer had done what the law required — by giving Timmons the opportunity to preserve his blood, so that Timmons could have a second chemical test if he wanted one[.]
. . .
The whole thrust of the defense case was to suggest that a second chemical test would have disclosed a serious flaw in the Intoximeter test result. Yet Timmons stipulated that his blood had been drawn and preserved for testing, and that the blood samples had been turned over to his attorneys. In other words, if Timmons believed that a second chemical test was crucial, he could have had one.
. . .
Moreover, when the jury expressly asked whether Timmons's blood had been tested, the trial judge told the jurors that they were to decide the case based on the evidence presented in court (which did not include any evidence that Timmons's blood had been tested). We thus conclude that neither the prosecutor's argument nor the trial judge's actions violated Timmons's attorney-client privilege. The challenged portion of the prosecutor's summation was not error, much less plain error.
Timmons, Memorandum Opinion at 5-7, WL at *2-*4.
Sutton's case presents a similar situation, although his legal argument is different. Unlike the defendant in Timmons, Sutton does not argue that the prosecutor suggested to the jury that a re-test had indeed been performed. Rather, Sutton proceeds on the premise that the jury understood that there had been no re-test of the DNA. Nevertheless, Sutton argues that the prosecutor's remarks about the lack of a re-test amounted to an improper invitation to the jury to find Sutton guilty because Sutton failed to pursue evidence that might potentially have shown his innocence.
Although this Court's discussion in Timmons suggests that the prosecutor's argument in the present case was proper, I find this to be a close question.
On the one hand, given Sutton's decision to call Dr. Libby and have him attack the validity of the State's DNA test results by pointing out the arguable flaws in the Washoe County crime laboratory's testing procedures, it was seemingly a fair rejoinder for the prosecutor to point out that Sutton could have had the DNA re-tested if he had wished to. The failure to conduct a re-test was a potential reason for the jury to give less credence to Libby's criticism of the State's test results. Timmons suggests that this type of argument is proper in circumstances where (1) the defense presents expert testimony to attack the government's analysis of physical evidence and (2) the physical evidence was available to the defense for re-testing.
On the other hand, a basic principle of our criminal law is that a defendant need not affirmatively demonstrate their innocence. A defendant may litigate a criminal case by simply pointing out the potential reasons to doubt the government's proof. In Sutton's case, the defense attorney could reasonably have been concerned that the prosecutor's cross-examination of Dr. Libby, and the prosecutor's ensuing argument, would suggest to the jurors that Sutton's failure to re-test the DNA was affirmative evidence of his guilt, rather than simply a potential reason to give less credence to Libby's testimony.
These two principles collide in Sutton's case, and I am not sure what general rule should govern cases like this. However, it is not necessary to reach a general resolution of this problem in Sutton's case.
Sutton's attorney identified the problem to the trial judge, and he requested a specific type of relief: he asked the trial judge to specially instruct the jury that the State bore the burden of proving Sutton's guilt, and that it was not Sutton's burden to affirmatively establish his innocence. As the majority opinion explains, Sutton's trial judge immediately acceded to the defense attorney's request for this special instruction.
On appeal, Sutton argues for the first time that this cautionary instruction was insufficient. Thus, the ultimate issue in Sutton's case is whether the trial judge committed plain error when, under the circumstances described here, she failed to declare a mistrial sua sponte. To find plain error here, we would have to be convinced that no reasonable judge would have let Sutton's trial go forward — that any reasonable judge would have seen that the problems raised by the cross-examination of Dr. Libby could not be adequately resolved by giving the cautionary instruction that Sutton proposed. I agree with my colleagues that Sutton has failed to prove that the trial judge acted unreasonably when she gave Sutton's proposed cautionary instruction and allowed the trial to proceed.
All this being said, one issue remains: the portion of the prosecutor's summation where he argued that Libby's failure to re-test the DNA samples demonstrated Libby's belief that the results of the original testing were, in fact, accurate despite the lapses in testing protocol.
This argument might be justifiable if the evidence showed that Libby had chosen not to perform a re-test. But, as explained above, when Libby was asked about his failure to re-test the samples, he stated that performing or obtaining a re-test was "not part of [his] duties".
In other words, either Libby was not hired to perform a re-test, or he was affirmatively told not to perform a re-test. In either event, Libby's failure to perform a re-test does not indicate anything about his belief in the accuracy or inaccuracy of the Washoe County test results. Accordingly, the prosecutor's argument was objectionable because the prosecutor's assertion was not a fair inference from the evidence.
However, as the majority opinion notes, Sutton does not object to this aspect of the prosecutor's summation as being unjustified by the evidence. Rather, Sutton reiterates his objection that the prosecutor was somehow shifting the burden of proof. This objection has no merit — and, in any case, the trial judge expressly cautioned the jury that the State always bore the burden of proof, and the prosecutor expressly stated, during his summation, that he agreed with this principle.