|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections @ akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LAUREL LEE,
Court of Appeals No. A-12797
Appellant, Trial Court No. 3KN-14-01547 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2715 - November 26, 2021
Appeal
from the Superior Court, Third Judicial District, Kenai,
Carl Bauman, Judge.
Appearances: Michael L. Barber, Barber Legal Services,
Anchorage, under contract with the Office of Public Advocacy,
for the Appellant. Diane L. Wendlandt, Assistant Attorney
General, Office of Criminal Appeals, Anchorage, and Kevin G.
Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
Following a jury trial, fifty-one-year-old Laurel Lee was convicted of
second-degree sexual abuse of a minor based on allegations that she performed fellatio
----------------------- Page 2-----------------------
1
on a fourteen-year-old boy, C.L. On appeal, Lee argues that the State violated her state
and federal due process rights, as well as the evidence preservation requirements of
AS 12.36.200(a)(2), byfailing to preservebiologicalevidencethatwas consumed during
DNA testing.
For the reasons explained in this opinion, we conclude that the State
complied with the requirements of AS 12.36.200(a)(2) and that Lee's due process rights
were not violated. We note, however, that the State's failure to notify defendants before
undertaking testing that will consume evidence could subject them to future due process
challenges.
Factual and procedural background
In September 2014, fourteen-year-old C.L. was riding his bicycle on a
sidewalk near his home in Sterling when he encountered a woman he did not know, later
identified as Laurel Lee. C.L. described Lee as intoxicated and "out of [her] right mind."
C.L. testified that Lee grabbed C.L.'s arm, pulled him off of his bicycle, and dragged him
into a nearby wooded area.
According to C.L., once they were in the woods, Lee pinned him to the
ground, pulled down his pants, and forcibly performed fellatio on him. C.L. testified
that, after a couple of minutes, he was able to struggle free, and he fled the area. C.L.
immediately reported the incident to his brother and his grandmother, who called 911.
C.L. was upset and crying when he reported the incident.
The troopers located Lee in the same wooded area that C.L. identified as
the scene of the assault. The following day, Lee told the troopers that C.L. had
1 AS 11.41.436(a)(1).
- 2 - 2715
----------------------- Page 3-----------------------
approached her and propositioned her for sex, but that she turned him down and walked
away without having any physical or sexual contact with him.
Based on C.L.'s account, Lee was indicted on charges of kidnapping, first-
2
degree sexual assault, and second-degree sexual abuse of a minor.
As part of the law enforcement investigation into the allegations against
Lee, a forensic nurse collected six swabs from C.L.'s penis; these swabs were sent to the
Alaska Scientific Crime Detection Laboratory (crime lab) for DNA testing. (The nurse
also collected two scrotum swabs from C.L. and fingernail scrapings from C.L.
However, neither the State nor the defense ever tested these items.)
The crime lab's DNA testing of the six penile swabs and the resulting
litigation
A forensic analyst from the crime lab, Sara Graziano, was tasked with
performing DNA testing on the penile swabs collected from C.L. Graziano knew that
the crime lab had a low success rate - only 37.5% - in obtaining interpretable DNA
from penile swabs. Graziano was also under the mistaken impression that C.L. had not
ejaculated.3
Graziano noted that C.L.'s evidence kit contained an unusual number of
penile swabs - six - as compared to the two swabs that are typically collected. This
posed such an "unorthodox" scenario that Graziano stopped her analysis to confer with
her supervisor.
Ultimately, in an effort to "maximize the total DNA from all of the swab
material," Graziano and her supervisor decided that she should place all of the biological
2 AS 11.41.300(a)(1)(C), AS 11.41.410(a)(1), and AS 11.41.436(a)(1), respectively.
3 At trial, C.L. testified that he ejaculated. He further testified that he had not told
anyone this information during the investigation because no one had directly asked him.
- 3 - 2715
----------------------- Page 4-----------------------
material from each of the swabs into two tubes for testing. As Graziano later explained,
this seemed to provide the best chance of obtaining an interpretable DNA profile:
Graziano: I used all the peripheral swab material
because I thought that . . . was the best-case scenario at
getting all of the DNA from all of the cells that were collected
across all of the swabs. So the way I handled the evidence
was I felt the best way to get DNA profile information.
Graziano proceeded to remove the peripheral material - i.e., the external
surface of the swabs most likely to contain bodily fluids - from all six penile swabs,
placing the material from three swabs in one testing tube and the material from the other
three swabs in a second tube. Graziano then extracted DNA from the material in both
tubes. She preserved half of this DNA extract for later independent testing by Lee and
used the other half of the extract to generate a DNA profile. Graziano used this profile
to confirm the presence of Lee's DNA on C.L.'s penis. She issued a report detailing her
findings on July 6, 2015.
Approximately six weeks later, Lee's attorney requested that certain items
of evidence, including the penile swabs, be sent to the Serological Research Institute
4
(SERI) for independent testing.
Upon receiving the items, a SERI analyst attempted to test the penile swabs
for the presence of an enzyme known as amylase - an enzyme present in a number of
bodily fluids, including saliva. However, because all of the peripheral material
containing bodily fluids had been removed during the DNA testing, the analyst was
unable to confirm whether amylase had been present on C.L.'s penile swabs.
4 On appeal, Lee asserts that her attorney informed the prosecutor in May that she
wanted to independently test the penile swabs. But the record does not support this
contention. Instead, the record contains two sworn affidavits from Lee's attorney stating that
she did not notify the prosecutor of the defense's request for testing until August 17, 2015
- approximately six weeks after the crime lab had finished its testing and issued its report.
- 4 - 2715
----------------------- Page 5-----------------------
Based on the inability to test for amylase, Lee filed a motion to dismiss her
5
indictment.
In the motion, Lee explained that her defense at trial would be that C.L. had
fabricated the forced fellatio allegations to cover up his own non-consensual penile-
vaginal penetration of Lee. Lee explained that she had sought the amylase testing in an
attempt to prove the absence of saliva on C.L.'s penis. If the testing showed that there
was no amylase on C.L.'s penile swabs, Lee intended to argue that the absence of
amylase meant that there was an absence of saliva on the penis, which could mean that
the sexual intercourse had been vaginal, not oral, and that C.L. had lied about the fellatio.
According to Lee, the State's failure to preserve the original biological material on the
penile swabs prevented her from conducting her desired amylase test, and the State's
consumption of this material in the DNA testing process therefore violated her due
process right to present a defense. Lee also argued that the State's failure to preserve the
original biological material on the swabs constituted a violation of the State's evidence-
6
preservation duties under AS 12.36.200(a)(2).
Thecourt held an evidentiary hearing onLee'smotion todismiss. Graziano
was the only witness at the evidentiary hearing. Graziano testified that she had consulted
with her supervisor before using all six penile swabs. She testified that it was very
difficult to obtain DNA profiles from penile swabs, and that, in her view, the best use of
5 Lee also moved, in the alternative, to suppress the State's DNA results. But she later
withdrew her request for suppression. Instead, she requested that, if the motion to dismiss
was not granted, the jury should be given a favorable presumption instruction under Thorne
v. Dep't of Pub. Safety - that is, the jury should be instructed to presume that any testing of
the non-DNA biological evidence on the penile swabs would have been favorable to the
defense if it had been preserved by the State. Thorne v. Dep't of Pub. Safety, 774 P.2d 1326,
1330-31 (Alaska 1989).
6 Alaska Statute 12.36.200(a)(2) requires the State to preserve "biological evidence in
an amount and manner that is sufficient to develop a DNA profile" in cases where a person
has been convicted of, or adjudicated a delinquent for, certain crimes against a person.
- 5 - 2715
----------------------- Page 6-----------------------
the evidence was "[t]o consume the swab material and generate the DNA profiles while
retaining half of the DNA extract in case anyone downstream would like to utilize that."
Graziano further testified that the state crime lab does not test for the
presence of saliva (amylase) because such tests are not currently "confirmatory" and
often result in false positives. Graziano explained that amylase is found in many other
bodily fluids besides saliva, including vaginal secretion and perspiration, and, as a result,
analysts would be unable to unequivocally say that the amylase came from saliva. Thus,
Graziano concluded that "even if there was a positive saliva result on the front end, even
SERI couldn't say if that was from mouth contact confirmatorily [sic] or from vaginal
[contact] because vaginal fluids also cross-react with the saliva test."
Graziano also testified that the absence of amylase in a sample was not
particularly meaningful scientifically because it just meant that the particular sample did
not contain amylase, not that there was no amylase on the penis. As she stated, "the
absence of evidence . . . is not the evidence of absence."
Following the evidentiary hearing, the trial court denied Lee's motion to
dismiss. The court concluded that AS 12.36.200(a)(2) required only that the State
preserve biological evidence "in an amount and manner that is sufficient to develop a
DNA profile" - a duty Graziano fulfilled by preserving half of the DNA extract. The
court also found no due process violation because Graziano had not acted in bad faith,
and she had followed the crime lab's internal operating procedures. The court also
ultimately denied Lee's alternative request to instruct the jury, under Thorne v.
7
Department of Public Safety,
to presume that if the biological material had been
preserved, it would have resulted in forensic testing that was "favorable" to the defense.
7 See Thorne, 774 P.2d at 1331-32.
- 6 - 2715
----------------------- Page 7-----------------------
Lee's trial
At trial, C.L. testified and Lee's defense attorney attacked his credibility,
arguing that he was lying. The attorney claimed that C.L. had sexually assaulted Lee
vaginally, and that Lee was the victim in this case, not C.L. Lee did not testify.
Theparties heavily litigated thequestion ofwhethertheStatehad destroyed
potentially favorable defense evidence when it consumed the biological material from
the six penile swabs that were DNA tested.
Graziano testified for the State. In her testimony, she detailed the steps she
had taken to test the evidence for DNA. Lee's defense attorney extensively cross-
examined Graziano regarding the reasons why she consumed all six penile swabs in her
DNA testing, and why she did not test the penile swabs for the presence of amylase.
Graziano testified, consistently with her evidentiary hearing testimony, that she had used
the six penile swabs because she believed it was the best chance to get a DNA result,
given the difficulty of obtaining DNA results from penile swabs. Graziano also testified
that the crime lab does not test for saliva because there are currently no confirmatory
tests for saliva and amylase can be found in other bodily secretions, including vaginal
fluid and perspiration.
To rebut this testimony, the defense attorney called Angela Butler, a
forensic analyst from SERI. Butler testified that SERI analysts are able to accurately
detect saliva in samples, using both presumptive and confirmatory tests. According to
Butler, SERI analysts are able to detect the presence of saliva in a sample by analyzing
the presence of a specific enzyme, amylase type 1, which is highly concentrated in saliva.
However, Butler was unable to test the penile swabs for the presence of amylase type 1,
because the biological material from the swabs had been consumed as part of the crime
lab's DNA testing.
- 7 - 2715
----------------------- Page 8-----------------------
Butler testified that she did test two cuttings from Lee's black pants for
saliva and semen. The sample from the upper-right-leg area tested "weak positive" for
amylase type 1, indicating the presence of a low level of saliva. Testing did not reveal
the source of the saliva. The same area tested "weak positive" for the presence of semen,
and the analyst was able to determine C.L. was the only detectable contributor. Butler
also testified that she tested the upper-right-leg cutting for epithelial (skin surface and
body cavity) cells, finding two contributors. C.L. was confirmed as a contributor, but
there were insufficient cells to discern the identity of the second contributor. The sample
from the interior-crotch area of Lee's pants tested negative for both semen and saliva.
The defense attorney highlighted Butler's testimony during closing
arguments. The attorney asserted that the jury was not getting the "whole story" and that
they could have "gotten more [of] the story" if Graziano had not consumed all six penile
swabs as part of the DNA testing. The attorney emphasized that Butler worked for an
independent crime lab and did not work exclusively for law enforcement as the state
crime lab analyst did, and the attorney argued that there was no need for the State to
consume all six swabs. The defense attorney also highlighted various inconsistencies in
C.L.'s testimony, and she argued that C.L. had not initially admitted to ejaculating
because he did not want to look guilty.
Inresponse, theStateargued thatC.L.'s testimony wascredibleand pointed
to Lee's statement to the police that showed that she knew C.L. was under sixteen years
old.
Following deliberations, the jury convicted Lee of second-degree sexual
8
abuse of a minor for engaging in sexual penetration with a fourteen-year-old child. The
jury acquitted Lee of kidnapping and first-degree sexual assault.
8 Sexual penetration includes fellatio under Alaska law. See AS 11.81.900(b)(62).
- 8 - 2715
----------------------- Page 9-----------------------
This appeal followed.
Lee's arguments on appeal
On appeal, Lee argues that the State's consumption of the six penile swabs
violated AS 12.36.200, the statute that requires the State to preserve biological evidence
for DNA testing in certain types of cases. Lee also argues that the State's consumption
of the six penile swabs violated her due process rights and precluded her from
developing and presenting her defense.
Lee asserts that the proper remedy for these violations was dismissal of the
charges, and that the trial court therefore erred when it denied her motion to dismiss. In
a single paragraph, Lee also argues, in the alternative, that the trial court should have
given the jury a favorable presumption instruction under Thorne.
Lee's argument that Graziano's actions violated AS 12.36.200
In 2010, the Alaska legislature passed AS 12.36.200, a statute addressing
the preservation of biological material in murder and sexual assault cases. The sponsor
of the legislation, Senator Hollis French, explained that the primary purpose of the
legislation was to ensure that the State preserved the biological evidence in these cases
so that it would be available for post-conviction DNA testing. 9
The statute requires the State to preserve "biological evidence in an amount
and manner that is sufficient to develop a DNA profile" for as long as the person
9 See Minutes of Senate Finance Comm., Senate Bill 110, testimony of Senator Hollis
French, 9:29:13-9:33:30 a.m. (Apr. 13, 2009).
- 9 - 2715
----------------------- Page 10-----------------------
convicted of the offense remains in custody or is subject to registration as a sex
10
offender. Biological evidence is defined as including:
(A) the contents o f a sexual assault forensic examination
kit;
(B) semen, blood, hair, saliva, skin tissue, fingernail
scrapings, bone, bodily fluids, or other identifiable
human bodily material collected as part of a criminal
investigation;
(C) a slide, swab or test tube containing material described
in (B) of this paragraph; and
(D) swabs or cuttings from items that contain material
[11]
described in (B) of this section.
If the State intends to destroy the biological evidence while the person remains a prisoner
in the custody of the Department of Corrections or while the person remains subject to
registration as a sex offender, the State must provide notice to the defendant, the defense
attorney of record, the Public Defender Agency, and the district attorney responsible for
12
prosecuting the crime.
Any of these people can request testing of the evidence or
13
continued preservation of the evidence. The State is then prohibited from destroying
14
the evidence unless a court finds no reason for its continued preservation.
10 AS 12.36.200(a)(2). The statute also requires the State to preserve "all evidence" in
unsolved murder and sexual assault cases "for the period of time that the crime remains
unsolved or 50 years, whichever ends first." AS 12.36.200(a)(1).
11 AS 12.36.200(i)(2).
12 AS 12.36.200(d)(2).
13
AS 12.36.200(d)(3). The request must be filed within 120 days of the received
notice. Id.
14
AS 12.36.200(e) (allowing courts to grant an agency's petition to destroy evidence "if
the court finds the request [for continued preservation] is without merit or that the evidence
(continued...)
- 10 - 2715
----------------------- Page 11-----------------------
If the State destroys evidence in violation of the requirements of
AS 12.36.200, "the court may order remedies the court determines to be appropriate." 15
In the trial court proceedings, Lee argued that the State had violated
AS 12.36.200 by consuming the biological material on the six penile swabs. She also
asserted that dismissal of the charges was the appropriate remedy.
The trial court disagreed. The court noted that AS 12.36.200(a)(2) has a
"DNA profile focus," and the court found it significant that the statute only required that
the State preserve biological evidence "in an amount and manner that is sufficient to
develop a DNA profile." The court found that this had been accomplished in Lee's case
because Graziano had preserved a portion of the DNA extract for any future independent
DNA testing.
Lee now appeals that ruling.
The proper interpretation of a statute is a question of law that we review
16
We interpret statutes "according to reason, practicality, and common sense,
de novo.
considering the meaning of the statute's language, its legislative history, and its
purpose."17
Alaska courts use a sliding scale approach to statutory interpretation: "[T]he
14 (...continued)
has no significant value for biological material").
15 AS 12.36.200(g). However, an unintentional violation of the statute does not
constitute grounds to file a civil lawsuit. AS 12.36.200(h).
16 Hillman v. State, 382 P.3d 1198, 1200 (Alaska App. 2016); see, e.g., Ward v. State,
Dep't of Pub. Safety , 288 P.3d 94, 98 (Alaska 2012) (interpreting AS 12.63.020).
17
Murphy v. Fairbanks N. Star Borough , 494 P.3d 556, 563 (Alaska 2021) (quoting
Vandenberg v. State, Dep't of Health & Soc. Servs., 371 P.3d 602, 606 (Alaska 2016)); see
also Baer v. State, __ P.3d __, Op. No. 2709, 2021 WL 4487894, at *2 (Alaska App. Oct. 1,
2021).
- 11 - 2715
----------------------- Page 12-----------------------
plainer the language of the statute, the more convincing contrary legislative history must
be."18
Lee argues that the State violated AS 12.36.200(a) when Graziano used all
of the biological material on the penile swabs to create the DNA extract, even though a
portion of the DNA extract was preserved for any future independent DNA testing the
defense might want to perform. According to Lee, Graziano was required to preserve
some of the available biological material so that the material would be available for any
type of forensic testing that the defense wanted to perform.
We agree, as a general matter, with the principle that, if the State's forensic
testing will consume all of the available material to be tested, then the defense should be
notified. We also note that failure to notify may create due process issues in certain
circumstances. But we disagree with Lee's contention that the State's actions violated
AS 12.36.200(a).
As the trial court found, the specific focus of AS 12.36.200(a) is the
preservation of biological material for DNA testing. The statute requires that biological
material be preserved "in an amount and manner that is sufficient to develop a DNA
19
profile."
Here, Graziano preserved evidence from the swabs "in an amount and
20
manner" sufficient to allow Lee to develop an independent DNA profile. This is all the
plain language of the statute required.
18 Ward, 288 P.3d at 98 (citation omitted); see Hillman , 382 P.3d at 1200.
19 AS 12.36.200(a)(2); see also AS 12.36.200(i)(2) (defining biological evidence).
20 See AS 12.36.200(a)(2).
- 12 - 2715
----------------------- Page 13-----------------------
21
The legislative history of the statute supports this plain meaning. Prior
to enacting AS 12.36.200(a)(2), the legislature heard testimony frommultiple witnesses,
including representatives oftheAlaskaInnocenceProject. TheAlaskaInnocenceProject
representatives advocated for preservation requirements beyond the "narrow category"
of DNA-related evidence on the theory that future technological advancements might
22
allow for a broader range of testing of non-DNA biological material.
The Innocence
Project representatives further advocated for the bill's language to require the
23
preservation of "items containing biological evidence." With this change, the
Innocence Project representatives hoped to clarify that the items to be preserved are
24
"evidentiary items and not just test tubes and things like that."
But after hearing this testimony, the legislature chose not to change the
language or expand the scope of AS 12.36.200, instead maintaining the statute's focus
21 See Chinuhuk v. State, 472 P.3d 511, 515 (Alaska 2020) (noting that when interpreting
a statute, we do not "mechanically apply the plain meaning rule, using instead a sliding scale
approach to statutory interpretation, in which 'the plainer the statutory language is, the more
convincing the evidence of contrary legislative purpose or intent must be'" (quoting
Adamson v. Anchorage , 333 P.3d 5, 11 (Alaska 2014) (additional citations omitted))).
22 See Minutes of Senate Judiciary Comm., Senate Bill 110, testimony of Bill Oberly,
Barbara Brink, Rich Norgard, Alaska Innocence Project and Rebecca Brown, Innocence
Project (Feb. 25, 2009).
23 Minutes of Senate Judiciary Comm., Senate Bill 110, testimony of Richard Norgard,
Board President, Alaska Innocence Project, 2:14:32-2:17:47 p.m. (Feb. 25, 2009).
24 Minutes of Senate Judiciary Comm., Senate Bill 110, testimony of Bill Oberly,
Executive Director, Alaska Innocence Project, 1:59:19-2:03:21 p.m. (Feb. 25, 2009); see also
Written Testimony of Rebecca Brown, Policy Analyst, Innocence Project, S.B. 110, Senate
Judiciary Committee File, at 1553-54 (Feb. 25, 2009).
- 13 - 2715
----------------------- Page 14-----------------------
25
on DNA-related evidence. Thus, while there may be good reasons for requiring the
State to preserve non-DNA biological evidence - reasons that may become even more
evident as forensic testing methods continue to advance - the statute the legislature
enacted in AS 12.36.200 does not impose these additional obligations.
Accordingly, we conclude that the State complied with AS 12.36.200(a)(2)
when it preserved biological material collected from C.L. in an amount and manner
sufficient to allow for independent DNA testing.
Lee's argument that consumption of the penile swabs violated her right to
due process under the federal constitution
Lee next argues that even if the State's failure to preserve the peripheral
material from the penile swabs did not violate AS 12.36.200(a)(2), it nevertheless
violated her right to due process under the federal constitution.
Under federal due process jurisprudence, the State's failure to preserve
potentially useful evidence does not constitute a denial of due process "unless a criminal
defendant can show bad faith on the part of the [State]." 26
Lee has not shown bad faith on the part of the State. Indeed, at oral
argument, Lee's attorney disavowed any claim of bad faith. Accordingly, Lee has failed
to establish a violation of her federal due process rights.
25 See H.C.S. C.S.S.B. 110, 26th Leg., 2d. Sess. (as passed by Senate, Apr. 16, 2010).
26 Arizona v. Youngblood , 488 U.S. 51, 58 (1988).
- 14 - 2715
----------------------- Page 15-----------------------
Lee's argument that consumption of the penile swabs violated her right to
due process under the state constitution
Unlike the federal constitution, the Alaska Constitution does not require a
finding of bad faith in order to establish a due process violation. 27
However, Alaska law
does differentiate between circumstances where the State destroys evidence it should
have preserved and circumstances where the State consumes evidence through forensic
testing.28
The Alaska Supreme Court first addressed the State's consumption of
29
evidence during forensic testing in Lee v. State . The defendant in Lee was arrested with
30
four balloons in his pocket, three of which contained a white powder residue. The State
performed a chemical analysis on the residue from one of the balloons, and determined
it to be heroin. In conducting this analysis, however, the State's testing consumed the
entirety of the residue found in the selected balloon.
On appeal, the supreme court rejected the argument that the State's
consumption of the residue violated the defendant's due process rights. As the court
explained, "[i]n those cases where expert analysis exhausts the substance there is clearly
no error in the admission of evidence regarding the analysis in the absence of allegations
and proof of deliberate destruction, or deliberate attempts to avoid discovery of evidence
31
beneficial to the defense." The court further noted that under the facts of the case, the
27 Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1330 & n.9 (Alaska 1989).
28 Compare Lauderdale v. State, 548 P.2d 376, 381-82 (Alaska 1976), and Thorne, 774
P.2d at 1330, with Lee v. State, 511 P.2d 1076, 1077 (Alaska 1973).
29 Lee , 511 P.2d at 1076.
30 Id. at 1077.
31 Id.
- 15 - 2715
----------------------- Page 16-----------------------
defendant was not left without recourse because, even without the ability to test the
residue that the State had consumed, the defendant could have challenged the State's
evidence by conducting his own examination of the residue on the remaining balloons. 32
33
Instead of
The supreme court distinguished Lee in Lauderdale v. State .
the consumption of evidence during testing, Lauderdale involved the State's negligent
34
failure to preserve breath test ampoules in a prosecution for driving under the influence.
Unlike Lee, the ampoules were not "'exhausted' by any state analysis - they simply
35
ha[d] been destroyed." The supreme court held that the defendant's due process rights
were violated by the destruction of the ampoules, and the court upheld the trial court's
36
decision to suppress the results of the breath test.
In her briefings, Lee argues her case is governed by Lauderdale rather than
37
Lee. Lee asserts that her case is distinguishable from Lee because Graziano received
an "unorthodox" abundance of testable material, i.e., six penile swabs rather than the
typical two. According to Lee, Graziano acted unreasonably when she consumed all six
penile swabs, and her failure to preserve some of the swabs for later amylase testing
32 Id. at 1078.
33 Lauderdale v. State , 548 P.2d 376, 382 (Alaska 1976).
34 Id. at 378.
35 Id. at 382.
36 Id. at 381; see also Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1330-31 (Alaska
1989) (holding that the State's destruction of a videotape showing the defendant's
performance on field sobriety tests violated due process).
37
See Harmon v. State, 908 P.2d 434, 443-44 (Alaska App. 1995) (distinguishing
between the destruction and consumption lines of cases, and concluding that Lauderdale and
Thorne did not apply when the State exhausted the evidence during testing), abrogated on
other grounds by State v. Coon, 974 P.2d 386 (Alaska 1999).
- 16 - 2715
----------------------- Page 17-----------------------
violated Graziano's due process rights. Lee also argues that her case is distinguishable
from Lee because, unlike in Lee, she was left without other evidence to test.
But this is not strictly true. There was other evidence that Lee could have
tested for the presence or absence of amylase - namely, Lee's pants and the scrotum
swabs. In fact, Lee did test the pants and discovered amylase type 1, the form found in
saliva. Lee did not test any of the scrotum swabs for amylase, and she provided no
explanation for her failure to do so.
At oral argument, Lee changed course and argued Lee in fact governed her
case and that the trial court needed to make a finding about whether the consumption of
38
evidence was "necessary."
Without that finding, Lee argued that the total consumption
of evidence was a violation of due process and the trial court should have dismissed her
case. But Lee did not explicitly request such a finding in the trial court, and we agree
with the State that she has therefore waived her argument that the trial court was required
to find that the consumption of evidence was "necessary." Instead, we address the
findings that the trial court did make -which was that Graziano acted reasonably, given
the information she knew at the time of the testing.
Lee argues that Graziano might have been able to preserve some of the
swabs if she had employed incremental testing - initially testing a smaller number of
swabs, and then performing additional testing on the remaining swabs only if the initial
tests did not result in a usable DNA profile. But Graziano testified that she and her
supervisor had good reasons for rejecting that approach. At the evidentiary hearing,
Graziano stated that her goal was to maximize the usable DNA extracted from the penile
38 See Lee v. State, 511 P.2d 1076 (Alaska 1973).
- 17 - 2715
----------------------- Page 18-----------------------
39
swabs and minimize any loss of biological material. She explained that using some, or
only parts, of the swabs risked missing the portions that contained the testable evidence.
Importantly, Graziano had no reason to believe that the penile swabs had
any evidentiary value beyond the DNA profiles that could potentially be obtained from
them. At the time of the DNA testing, C.L. had accused Lee of performing fellatio on
him and Lee had not made any statements alleging she was in fact the victim. The State
did not learn of the defense's theory that C.L. had vaginally raped Lee until much later,
after the DNA testing had already occurred and the penile swabs had been consumed.
Moreover, Graziano had little reason to believe that there were any tests
other than DNA testing that the defense would want to be conducted on this evidence.
As Graziano testified, the crime lab did not conduct saliva tests because it did not
consider them confirmatory since amylase can be found in other bodily secretions,
including vaginal secretions.
At trial, the defense produced an expert who testified that a saliva test could
be confirmatory because there is a particular enzyme - amylase type 1 - that is present
in higher concentrations in saliva than in other bodily fluids, such as vaginal secretions.
But, even assuming that is true, it is not clear how the defense was meaningfully
prejudiced by the inability to conduct such a test. A confirmatory test could have shown
the presence of amylase type 1 on C.L.'s penis, which would have supported the State's
case and undermined the defense. But the absence of amylase type 1 on a particular
39 Cf. United States v. Anderson, 169 F.Supp.3d 60, 68 (D.D.C. 2016) (quoting a
forensic testing expert who explained the dangers of incremental testing: "While it is
unknown exactly how much DNA is lost, by essentially testing the sample twice, you risk
losing twice as much DNA than would have been lost had the entire sample been consumed
at the outset. Since it is not clear whether a percentage of DNA or a particular amount of
DNA . . . is lost, this is a particularly risky policy for samples that are expected to have low
levels of DNA." (alteration in original)).
- 18 - 2715
----------------------- Page 19-----------------------
penile swab would not have similar evidentiary value. At most, it would have shown that
saliva was not on the particular penile swab that was tested, but it could not have shown
that saliva was not on C.L.'s penis at all.
Thus, given the trial court's well-supported finding that the State acted
reasonably given the information it had at the time of testing, and given that the
consumed evidence was of questionable evidentiary value to the defense, we conclude
that the trial court did not err when it ruled that Lee's due process rights were not
violated and her ability to present her defense was not impaired.
A final note: the State should give notice to the defense before consuming
forensic or biological evidence
Although we do not find a due process violation in this case, we emphasize
that this does not mean that we would not find a due process violation in a different case
with different circumstances and facts.
Several jurisdictions have noted that, even if not required by due process,
it is "better practice" for the State to give notice to a defendant before undertaking testing
40
that will consume evidence.
Indeed, the ABA's Standards for Criminal Justice require
an analyst to obtain permission from a prosecutor prior to undertaking testing that will
entirely consume either "DNA evidence or the extract from it" - and require the
40 See, e.g., State v. Carlson, 267 N.W.2d 170, 175 & n.4 (Minn. 1978) (adopting the
Alaska Supreme Court's holding in Lee , but observing that "when chemical analysis may
require the total exhaustion of the available physical evidence, better practice would dictate
that the defendant be notified of the proposed testing so that the defendant's own expert can
be present, if so desired") (citing Lee v. State , 511 P.2d 1076, 1077 (Alaska 1973)); State v.
Herrera, 365 So. 2d 399, 401 (Fla. App. 1978) ("[I]t would be better practice, although not
constitutionallymandated, for the state to delay the testing of minuscule quantities of suspect
drugs in a drug prosecution until the defendant or his representative has been given a fair
opportunity to be present during such testing.").
- 19 - 2715
----------------------- Page 20-----------------------
prosecutor to provide notice and an opportunity to object to "any defendant against
whom an accusatorial instrument has been filed, or any suspect who has requested prior
notice."41
At least one state has gone even further. In State v. Gaddis, the Supreme
Court of Tennessee concluded that whenever evidence will be "destroyed, exhausted or
consumed" by State testing, "good faith demands that no test or analysis be made except
by agreement between the District Attorney and defense counsel, or until such time as
42
defense counsel may arrange to have his own expert present at the test."
We note that, in this case, the State did not follow this better practice. The
crime lab's written policies, both those in effect at the time Graziano performed her
testing and those currently in effect, expressly approve the consumption of evidence
during DNA testing, as long as half of the DNA extract, but not the original biological
43
evidence itself, is preserved. This practice is in contravention of the ABA Standards
41 ABA Standards for Criminal Justice § 16-3.4 (3d ed. 2007).
42 State v. Gaddis, 530 S.W.2d 64, 69 (Tenn. 1975).
43 See Alaska Scientific Crime Detection Laboratory, Forensic Biology Procedure
Manual 16, 20 (May 10, 2021), https://dps.alaska.gov/getmedia/5cf46f15-5823-43c8-881c-
cce7e3deafd3/FBPM-2021-R1 (describing current policy as of May 2021 to preserve "half
the extract . . . unless written permission from the Department of Law for consumption" has
been obtained and acknowledging that testing samples may "consume all the swab
material"); Alaska Scientific Crime Detection Laboratory, Forensic Biology Casework
Procedures 14, 20 (Dec. 2, 2014), https://dps.alaska.gov/getmedia/1bf8db93-d2ed-48b6-
b1be-a6edd926861d/FBCP-2014-R1-archived-6-29-2015 (explaining policy in effect
between December 2014 and June 2015 required half the extract to be retained "unless
written permission for consumption of the sample has been obtained").
- 20 - 2715
----------------------- Page 21-----------------------
for Criminal Justice requirement to provide a defendant notice and an opportunity to
44
object before consuming either "DNA evidence or the extract from it."
While we agree with the trial court that no due process violation occurred
under the specific facts of this case, we also believe that it is better practice for the State
to provide notice to an indicted defendant before destroying, exhausting, or consuming
biological evidence. The failure to do so could amount to a due process violation if the
45
consumption hindered the defendant's ability to present a defense. Following
notification, a defendant and their counsel can then elect whether to submit a written
request to the court for the continued preservation of evidence or whether to have their
own expert present at the time of testing.
Conclusion
For the reasons explained in this opinion, we AFFIRM the judgment of the
superior court.
44 ABA Standards for Criminal Justice § 16-3.4 (3d ed. 2007).
45 See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (recognizing that, although not
absolute, "a defendant's right to present a defense is a fundamental element of due process");
cf. Herrera, 365 So. 2d at 401 (observing that, even in the absence of a due process violation,
the State's failure to notify a defendant prior to the consumption of evidence during testing
would leave the credibility of the analyst "open to question before a trier of fact").
- 21 - 2715
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
