2017
Opinion No. 56
Appeal
from the District Court of the Fifth Judicial District, State
of Idaho, Jerome County. Hon. John K. Butler, District Judge.
Order granting motions in limine and judgment of conviction,
affirmed.
Calbo
& Depew, PLLC; C. Ira Dillman, for appellant. C. Ira
Dillman argued.
Hon.
Lawrence G. Wasden, Attorney General; Ted S. Tollefson,
Deputy Attorney General, Boise, for respondent. Ted S.
Tollefson argued.
HUSKEY, Judge
Eugenio
Caliz-Bautista appeals from his judgment of conviction after
a jury found him guilty of sexual abuse of a child under the
age of sixteen. On appeal, Caliz-Bautista argues the district
court erred in granting the State's motions in limine
that excluded the testimony of Caliz-Bautista's expert
witness. Because the expert's testimony was speculative
about whether the State violated its testing protocol or
contaminated the evidence, we affirm the district court's
order granting the State's motions in limine and judgment
of conviction.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Caliz-Bautista
was arrested and charged with felony lewd conduct with a
minor under sixteen years of age, Idaho Code § 18-1508,
and felony sexual abuse of a child under the age of sixteen
years, I.C. § 18-1506. As part of the investigation, the
State collected DNA evidence consisting of saliva from one of
the victim's breasts and the State tested that sample to
compare it with a saliva sample from Caliz-Bautista. The
results of the DNA analysis indicated the saliva recovered
from the victim matched the DNA sample from Caliz-Bautista.
Caliz-Bautista
requested, and the district court approved, funding for a DNA
expert to examine the State's testing methods. In his
witness disclosure, Caliz-Bautista explained:
[The expert witness] will testify generally as to proper DNA
testing protocol. He will testify as to the accepted science
standards to avoid contamination. He will testify as to how
contamination can occur in DNA testify [sic]. He will more
specifically testify as to the procedures used to test the
DNA in this case and how those procedures go against standard
appropriate lab protocol to avoid contamination. He will
testify that the samples in this matter were packages [sic]
and sent to the biological lab together. He will testify that
the sample obtained from Mr. Caliz was "out in the
laboratory" for DNA extraction at the exact same time as
the samples obtained from the complaining witness in this
case were also having DNA extracted.
The
witness disclosure provided only this general information and
contained no additional foundation. Defense counsel later
admitted that no written report existed.
The
State filed a motion in limine to exclude
Caliz-Bautista's expert testimony on the grounds that the
testimony was speculative. At the motion hearing, defense
counsel explained the expert's testimony, which would
conclude that multiple samples were in the lab at the same
time during the extraction process and the samples were
loaded into a testing machine simultaneously. The procedure,
according to the expert, violated the State's own lab
protocol. The expert did not explain the degree to which the
procedure violated standard protocol, nor could he quantify
the effect. Defense counsel did not explain or provide the
basis from which Caliz-Bautista's expert concluded the
samples were out and extracted at the same time, except that
he had reviewed the State lab testing procedure manual. In
its memorandum decision granting the State's motions in
limine, the district court explained: "Counsel has
provided no explanation from the expert as to how [the State
lab] documentation demonstrates that the samples were open at
the same time in the laboratory and the Court's review of
that documentation does not show an explanation on the face
of the documentation itself." The district court
acknowledged the testimony might be relevant to impeach the
State's DNA expert, but the district court granted the
motions in limine subject to a further offer of proof from
Caliz-Bautista.[1]
During
trial, Caliz-Bautista attempted to call the expert as a
witness. Caliz-Bautista made an offer of proof, during which
the expert witness testified and was questioned by both
parties and the district court. The expert explained he
reviewed documents from the crime lab and was familiar with
the analytical methods that were typically employed by the
lab, including the requirement that the lab separate all
samples by time and/or place in order to avoid contamination.
The expert explained that, according to the records he
reviewed, the lab violated this protocol because several
samples were out in the lab at the same time and the same
instruments were likely used to process them.
The
district court reserved ruling on the admissibility of the
expert testimony. After the State and Caliz-Bautista finished
presenting their respective cases-in-chief, the district
court granted the State's motion to exclude the testimony
of the expert witness, holding the testimony was speculative,
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