IN THE SUPERIOR COURT FOR THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS. l l L INTRODUCTION. n. BACKGROUND

Similar documents
IN THE SUPERIOR COURT FOR THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS. l l L INTRODUCTION II. BACKGROUND

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ., and Carrico and Koontz, S.JJ.

STATE OF MICHIGAN COURT OF APPEALS

NIAGARA COUNTY JUSTICE COURT

Melendez-Diaz & the Admissibility of Forensic Laboratory Reports & Chemical Analyst Affidavits in North Carolina Post-Crawford

COURT OF APPEALS OF VIRGINIA

IN THE SUPERIOR COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) I. INTRODUCTION

464 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLVII:463

8777). 8 Id. at These courts have tended to find autopsy reports to be nontestimonial on the ground that

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

Supreme Court of the United States

STATE OF ARIZONA, Appellee, ODECE DEMPSEAN HILL, Appellant. No. 1 CA-CR

In September 2004, in a routine cocaine trafficking trial in Suffolk Superior Court,

Supreme Court of Florida

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

lol6 MAY 18 PH 2: 47 m'~

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 13, 2009 Session

IN THE SUPREME COURT OF THE STATE OF HAWAI I. ---o0o--- STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs.

Conflicting Confrontation Clause Concerns: The Admissibility of Hospital Records Versus a Defendant's Right to Confrontation

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

Supreme Court of Florida

Supreme Court of Florida

The Colorado Supreme Court affirms on other grounds the. court of appeals holding that the trial court did not err in

Petitioner, Respondent. No IN THE JEFFREY HARDIN OHIO, On Petition for a Writ of Certiorari to the Supreme Court of Ohio

Present: Hassell, C.J., Koontz, Kinser, Lemons, and Millette, JJ., and Russell and Lacy, S.JJ.

FINAL REPORT 1. Adoption of new Pa.R.Crim. 574 FORENSIC LABORATORY REPORT; CERTIFICATION IN LIEU OF EXPERT TESTIMONY

AUTOPSY REPORTS, TESTIMONIAL OR NON-TESTIMONIAL? Matthew C. Scarfone

THE SUPREME COURT OF NEW HAMPSHIRE THE STATE OF NEW HAMPSHIRE BRYAN MAGA. Argued: October 16, 2013 Opinion Issued: May 16, 2014

Petitioner, Respondent. No IN THE RICHARD PENDERGRASS, STATE OF INDIANA, On Petition for a Writ of Certiorari to the Indiana Supreme Court

Appellate Division, Third Department, People v. Young

Defendants Trial Brief - 1 -

A GUIDE TO CRAWFORD AND THE CONFRONTATION CLAUSE

United States v. Blazier: So Exactly Who Needs an Invitation to the Dance? Major David Edward Coombs *

SUPREME COURT COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff/Appellant,

COLORADO COURT OF APPEALS 2014 COA 124

The Aftermath of Melendez-Diaz v. Massachusetts, 129 S. Ct (2009) Identifying the Analyst Who Can Satisfy Confrontation

A GUIDE TO CRAWFORD AND THE CONFRONTATION CLAUSE

IN THE SUPERIOR COURT FOR THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

No IN THE SUPREME COURT OF THE UNITED STATES DONALD L. CRAIG, STATE OF OHIO, On Petition for Writ of Certiorari to the Ohio Supreme Court

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA CIVIL ACTION - LAW

IN THE SUPERIOR COURT FOR THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS ) ) ) ) ) ) ) ) ) ) )

SEEKING ADMISSION OF POLICE REPORTS AND WITNESS STATEMENTS CONTAINED THEREIN: A DUAL LEVEL HEARSAY CHALLENGE

In The Supreme Court of the United States

Case 1:11-cv RJS Document 283 Filed 02/10/17 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF MICHIGAN COURT OF APPEALS

IN THE SUPREME COURT OF IOWA

Defending Domestic Violence Cases Sarah Castaner Durham County Public Defenders Office September 2008

IN THE SUPERIOR COURt\': FOR THE COMMONWEAL TH OF THE NORTHERN MARIANA ISLANDS ) ) ) ) ) ) ) ) ) ) I. INTRODUCTION

Melendez-Diaz v. Massachusetts: Raising the Confrontation Requirements for Forensic Evidence in California

No November Term, STATE OF WEST CAROLINA, Petitioner, v. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WEST CAROLINA

IN THE SUPREME COURT OF TEXAS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, DONALD BULLCOMING, Petitioner, U. STATE OF NEW MEXICO, Respondent.

No. 85 February 28, IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF MICHIGAN COURT OF APPEALS

FOR PUBLICATION. Appeal No IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

) ORDER GRANTING DEFENDANT'S ) MOTION TO DISMISS COUNT II AS IT ) IS MULTIPLICITOUS AND VIOLATES v. ) THE CONSTITUTIONAL PROTECTION. ) Defendant.

BRIEF OF THE APPELLANT

APPEAL from a judgment of the circuit court for Dane County: MARYANN SUMI, Judge. Reversed and cause remanded.

Evidentiary Issues in Children s Court. Children s Law Institute January 8, 2015

HOW PROPOSITION 21 AMENDED WELFARE AND INSTITUTIONS CODE SECTION 777 AND CHANGED PROBATION VIOLATION PROCEDURES FOR JUVENILE WARDS

SIMPLIFIED RULES OF EVIDENCE

THE AFTERMATH OF MARYLAND V. CRAIG: APPLYING IT TO PRACTICE. Ashley Nastoff, J.D.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A116095

UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON, D.C.

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

In the Superior Court of Pennsylvania

Fourteenth Court of Appeals

NDAA COMFORT ITEMS COMPILATION (Last updated July 2010)

Admissibility of Electronic Writings: Some Questions and Answers*

DISTRICT OF COLUMBIA COURT OF APPEALS. No. 97-CM-789. Appeal from the Superior Court of the District of Columbia Criminal Division

CRS Report for Congress

The Confrontation Clause and the Hearsay Rule: What Hearsay Exceptions Are Testimonial?

IN RE TROY P., 1992-NMCA-120, 114 N.M. 525, 842 P.2d 742 (Ct. App. 1992) IN THE MATTER OF TROY P., a child, Respondent-Appellant.

In the Supreme Court of the United States

DEQUAN SHAKEITH SAPP OPINION BY v. Record No JUSTICE DONALD W. LEMONS March 1, 2002 COMMONWEALTH OF VIRGINIA

This opinion is subject to revision before publication in the Pacific Reporter. IN THE UTAH COURT OF APPEALS. ----ooooo---- ) ) ) ) ) ) ) ) ) ) )

SUPREME COURT OF THE UNITED STATES

STATE OF MICHIGAN COURT OF APPEALS

D-R-A-F-T (not adopted; do not cite)

Circuit Court for Prince George s County Case No. JA UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2016

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. CASE NO. 5D (CORRECTED) STATE OF FLORIDA,

Superior Court Judges Conference June 21-24, 2005 PART TWO RULE 406 HABIT EVIDENCE

USA v. Anthony Spence

RESPONDENT S BRIEF IN OPPOSITION

APPEAL from a judgment and an order of the circuit court for Kenosha County: WILBUR W. WARREN III, Judge. Affirmed.

THE STATE OF NEW HAMPSHIRE SUPREME COURT

STATE V. TONEY, 2002-NMSC-003, 131 N.M. 558, 40 P.3d 1002 STATE OF NEW MEXICO, Plaintiff-Respondent, vs. MICHAEL TONEY, Defendant-Petitioner.

IN THE SUPREME COURT OF THE STATE OF HAWAI I. ---ooo---

Admissibility of Electronic Evidence

IN THE SUPREME COURT OF FLORIDA

2004 U.S. Dist. LEXIS 14984, * DARBERTO GARCIA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. 04-CV-0465

RECENT DEVELOPMENTS. ,Wong Sun v. United States, 371 U.S. 471, 480 (1963); accord, United States v.

Confrontation s Convolutions

OFFICE OF THE FEDERAL PUBLIC DEFENDER EASTERN DISTRICT OF NORTH CAROLINA U.S. SUPREME COURT CRIMINAL LAW UPDATE

SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES 1 THE CIRCLE, SUITE 2 JUDGE SUSSEX COUNTY COURTHOUSE GEORGETOWN, DE 19947

IN THE U.S. NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON NAVY YARD WASHINGTON, D.C. BEFORE C.L. CARVER D.A. WAGNER J.F.

THE SUPREME COURT OF NEW HAMPSHIRE THE STATE OF NEW HAMPSHIRE WALTER BEEDE. Submitted: March 22, 2007 Opinion Issued: August 28, 2007

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription:

FOR PUBLICATION 2 3 4 5 IN THE SUPERIOR COURT FOR THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS 6 7 8 COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff, vs. PETERKIN FLORESCA TABABA, Defendant. l l I l CRIMINAL CASE NO. 1l-04A ORDER DENYING THE COMMONWEALTH'S MOTION TO ADMIT A PATERNITY TEST INTO EVIDENCE AS AN OFFICIAL RECORD 202A. L INTRODUCTION THIS MATTER came before the Court on July, 20 at :30 a.m. in Courtroom Assistant Attorney Genera Margo A. Brown, appeared on behalf of the 17 Commonwealth of the Northern Mariana Islands ("the Commonwealth"). Steven P. Pixley, 18 private counsel, appeared on behalf of the defendant, Peterkin Floresca Tababa ("Defendant"). 1 The Commonwealth brought a motion to admit a paternity test into evidence as an official 20 record. l Based on the papers submitted and oral arguments of counsel, the Court hereby DENIES the Commonwealth's motion. n. BACKGROUND Defendant is charged with three counts of sexual assault of a minor in the first degree, in violation of 6 CMC section 06(a)(l). Prior to giving birth, the minor victim, RG.S., stated that the father of her child could either be Defendant or Defendant's father, who were 28 1 The Commonwealth also argued a different motion to pennit the lab technician who performed the paternity test to testify via video conferencing, which the Court ruled upon in a separate order.

ordered to submit to DNA testing. On April 17, 20, at the age of thirteen years old, R.G.S. 2 gave birth to a daughter, 1M.S. In March 20, Affiliated Genetics Lab, Inc. ("Lab"), an 3 accredited lab located in Salt Lake City, Utah, conducted a paternity test using DNA samples 4 collected from Defendant and 1M.S. On April, 20, the Lab completed the test, finding a 5.0 chance that Defendant is the biological father of 1M.S. (Comm. Ex. B.) On May 6, 20, after receiving the results of the paternity test, the Commonwealth charged Defendant 7 with sexual abuse of a minor. 8 On August 7, 20, the Commonwealth filed a motion to admit the paternity test conducted by the Lab's Chief Operations Officer, Ms. Nelson, into evidence as an official record. Ms. Nelson performed the DNA paternity test to determine whether Defendant is the biological father of J.M.S. Oral arguments were heard on August, 20, and Defendant filed a written objection to the Commonwealth's motion on September 4, 20. m. DISCUSSION The Commonwealth moved to include the results of Defendant's paternity test as proof of an official record, pursuant to NMI R. Crim. P.. Rule defers to the Commonwealth Rules of Civil Procedure when proving the existence or absence of an official record. The 17 Commonwealth then cited NMI R. Civ. P. 44(a) in arguing that the Court authenticated 18 Defendant's paternity test as an official record in its previous family court case order, DYS v. 1 Tababa, NMI Super. Ct. June 1, 20 (Order). (Comm. Ex. D.) The Commonwealth argues, 20 therefore, that the paternity test should be admitted into evidence in the criminal case at bar. 2 Defendant does not dispute that Defendant's paternity test is an official record. Rather, Defendant objects to the admission of the paternity test "on grounds that: (I) the admission would violate the confrontation clause of the United States ConstiMion; and (2) the test results are hearsay." (Defs. Opp. To the Comm's. Mot. To Include Official Records at 2.) The first 2 The Commonwealth overlooks the fact that evidentiary standards are less stringent in family court cases than in criminal matters. Unlike in criminal cases, there are specific statutes pennitting the introduction of evidence relating to paternity. See 8 CMC 17, 17. The fact that Defendant's paternity test was admissible in his previous family court case does not make it admissible per se in the pending criminal case. Cf In re J.A.M, 45 28 S.W.2d 320, 3 (Tex. Ct App. 17) ("Appellant's argument, however, overlooks the Texas statute that makes paternity testing reports admissible even without the establishment of the business records exception.").

issue before the Court is whether the paternity test falls within the "business record" hearsay 2 exception pursuant to NMI R. Evid. 803(6). If yes, then the second issue is whether its 3 admission would nevertheless violate the confrontation clause. 4 5 A. DEFENDANT'S PATERNITY TEST FALLS WITHIN THE HEARsAy EXCEPTION FOR BUSINESS RECORDS. 6 7 8 17 18 1 20 Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." NMI R. Evid. 801(c). "Hearsay is not admissible except as provided by these rules or by law." NMI. R. Evid. 802. There can be no dispute that the paternity test is hearsay since it is an out-of-court statement offered to prove that Defendant is the father of I.M.S. Therefore, it is inadmissible unless it falls within an exception to the hearsay rule. Here, the only relevant hearsay exception is Rule 803(6), which applies to: [a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Once a document is established as a business record, it is admissible despite the general rule against hearsay unless it lacks trustworthiness. Id.; Guerrero v. Tinian Dynasty Hotel & Casino, 2006 MP 36 (citations omitted) ("In admitting a document as a business record, the most important consideration is the trustworthiness of the document: there should be no strong motive by the declarant to misstate the facts.") Business records under Rule 803(6) are presumed admissible, id., and the court "has wide discretion in determining whether a business record meets the standard of trustworthiness." United States v. Olano, 62 F.3d 80, 06 (th Cir. 15). 28

Here, the paternity test prepared by the Lab is a business record. The Lab routinely 2 3 4 conducts DNA tests, such as Defendant's paternity test, in the ordinary course of its business. The test results also possess sufficient trustworthiness because they represent a computational figure, which were obtained from a neutral party with no alleged motive to provide false results. 5 Furthermore, according to the Commonwealth, Ms. Nelson was unaware of the facts 6 7 8 surrounding the instant case or the implications that her test results may have. Therefore, the Court finds that Defendant's paternity test falls within the hearsay exception as a business record. Cj States v. Huu The Cao, 6 S.E.2d 301, 305 (N.C. Ct. App. 2006); People v. Brown, 801 N.Y.S.2d 70, 7 (N.Y. Sup. 2005); People v. Johnson, 1 Cal. App. 4th 0, - (Cal. Ct. App. 2004). B. ADMISSION OF DEFENDANT'S PATERNITY TEsT WOULD VIOLATE THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT. In all criminal prosecutions, "[t]he accused has the right to be confronted with adverse witnesses." NMI Const. art. I, 4(b) 3 ; see also US. Const. amend. VI. Generally, the 17 18 confrontation clause ensures a criminal defendant's right to confront his or her witnesses faceto-face and to have the opportunity to cross examine them. Maryland v. Craig, 47 US. 836, 84 (10); Mattox v. United States, 6 US. 7, 3 (185). However, the general rule for face-to-face confrontation and cross-examination may yield to evidence that falls within a 1 hearsay exception under certain circumstances. The relationship between the confrontation 20 clause and the hearsay rule has had a long and tremulous development culminating in the recent US. Supreme Court case ofmelendez-diaz v. Massachusetts, 557 U.S. 305, 318-1 (200). The US. Supreme Court first analyzed the confrontation clause in Mattox, noting that its "primary object... was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, " being used against criminal defendants whose liberty is at stake. Id. at 2. Nevertheless, the Court did note that the right to confrontation "must occasionally give way to considerations of public policy and necessities of the case." Id. at 3 The NMI Constitution's confrontation clause is patterned after the U.S. Constitution's confrontation clause in 28 the Sixth Amendment so the court may rely on the U.S. Supreme Court's interpretation of the confrontation clause. Commonwealth v. Condino, 3 NMI 501,507 (13).

3. A case may necessitate the admission of hearsay evidence without confrontation such as 2 when the declarant is unavailable or when the evidence is highly reliable and it would be 3 unduly burdensome to require the declarant(s) to testify. These principles lay the foundation 4 for the twenty-nine hearsay exceptions recognized in the Commonwealth of the Northern 5 Mariana Islands. NMI R. Evid. 803(1)-(), 804(bXl)-(bX5). 6 The Court in Ohio v. Roberts, 448 U.S. 56, 66 (180) analyzed the relationship between 7 the confrontation clause and hearsay rule, noting that they serve the same truth-seeking 8 objective in promoting the reliability of testimony and evidence. The Court held that hearsay evidence bears adequate "indicia of reliability" if it "falls within a firmly rooted hearsay exception" or its trustworthiness is otherwise assured. ld. Such evidence is admissible if the declarant is shown to be unavailable. In other words, Roberts held that there is no confrontation clause violation whenever there is an unavailable declarant and the evidence falls within a hearsay exception. This rule was abrogated by Crawford v. Washington, 541 U.S. 36 (2004). Crawford introduced the determinative distinction between testimonial and non- testimonial statements when deciding whether to apply the confrontation clause. ld. at 68. 17 Non-testimonial hearsay that falls within a Rule 803 or Rule 804 exception is not barred by the 18 confrontation clause. ld. However, if the hearsay is testimonial, "the Sixth Amendment 1 demands that what the common law required: unavailability and a prior opportunity for cross- 20 examination." ld. Crawford expressly declined to define "testimonial." ld. However, two years later, the Court shed some clarity on this issue in holding that a statement is non- testimonial when made to assist the police in an ongoing emergency but it is testimonial if its primary purpose is "to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 8, 8 (2006). After Crawford and Davis, jurisdictions across the United States and its territories used these cases to interpret the testimonial nature of statements that arose in other contexts, apart from communications with the police. Most relevant to the case at bar is the interpretation of 28 statements made by lab technicians or medical professionals concerning DNA tests.

Immediately following Crawford and Davis, courts were nearly evenly split on whether 2 scientific tests were testimonial. Some courts "concluded that because such evidence- 3 fingerprint analysis, autopsy reports, serology reports, drug analysis reports, DNA reports-is 4 prepared for possible use at a criminal trial it is testimonial and inadmissible unless the 5 conditions for its admission, outlined in Crawford, have been met." People v. Geier, 1 P.3d 6 4, 4 (Cal. 2007) (collecting cases); see, e.g., City of Las Vegas v. Walsh, 1 P.3d 203, 7 207-08 (Nev. 2005). Other courts, however, held that scientific evidence was not testimonial, 8 even though it may have been prepared for possible use at trial. Geier, 1 P.3d at 4 (collecting cases); see, e.g., United States v. Moon, 5 F.3d 35, 362 (7th Cir. 2008). In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (200), the U.S. Supreme Court II addressed the issue whether a scientific test, which concluded that a certain substance was cocaine, is testimonial, subjecting the lab technician to cross-examination by the defendant. The Court held that the drug test results were testimonial, and further stated that "[t]he same is true of many of the other types of forensic evidence commonly used in criminal prosecutions." Id. at 320. Although scientific tests are generally mechanical and analysts usually have no motive to provide false results, confrontation is still a valuable tool to "weed out not only the 17 fraudulent analyst, but the incompetent one as well." Id. at 31. There have been many reports 18 of erroneous scientific results based on incompetent analysts who carelessly mishandle DNA 1 samples or testing equipment, or misinterpret the data. See id. (citation omitted). 20 The issue here - whether Defendant's paternity test is testimonial, entitling Defendant with an opportunity for cross-examination - is nearly identical to the issue analyzed in Melendez-Diaz. Like Melendez-Diaz, this Court holds that the paternity test is testimonial; therefore, its introduction into evidence as a business or official record would violate the confrontation clause. Business records ordinarily are admissible despite their hearsay status pursuant to the Rule 803(6) exception, but not when the records are produced for use at trial. Melendez-Diaz, 557 US. at 31. The paternity test was produced for use at trial because Defendant was ordered to submit to DNA testing after being accused by the victim as being 28 potentially the biological father of her child. But cf Williams v. Illinois, 2 S. Ct., 23-

44 (20) (holding that a DNA report was not testimonial because "its primary purpose was to 2 catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, 3 who was neither in custody nor under suspicion at that time."). Based on the ruling in 4 Melendez-Diaz, the Court holds that Defendant's paternity test is testimonial and may therefore 5 not be introduced into evidence without affording Defendant the opportunity to cross examine 6 the analyst pursuant to the confrontation clause. 7 IV. CONCLUSION 8 For the foregoing reasons, the Court hereby DENIES the Commonwealth's motion. IT IS SO ORDERED this 1h day of September, 20. JA, Presiding Judge 17 18 1 20 28