Raquel-Dieguez v. State

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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