State of Louisiana v. Joseph Savoy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1326

STATE OF LOUISIANA

VERSUS

JOSEPH SAVOY

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 08-K-5271-B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and J. David Painter,
Judges.

AFFIRMED.

Earl B. Taylor
District Attorney
Jennifer M. Ardoin
Assistant District Attorney
27th Judicial District Court
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

Beth S. Fontenot
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Joseph Savoy

DECUIR, Judge.

Defendant, Joseph Savoy, was convicted of aggravated kidnapping, a

violation of La.R.S. 14:44, at a bench trial on July 26, 2011. He was sentenced

to life imprisonment at hard labor without benefit of parole, probation, or

suspension of sentence, consecutive to any other sentences he was already

serving. This was Defendant‘s eighth felony; he was previously convicted of

obscenity, simple burglary (twice), molestation of a juvenile, first degree

robbery, aggravated rape, and armed robbery. Defendant appeals his

conviction, alleging the trial court erroneously allowed DNA evidence to be

introduced at trial without the testimony of the technician who cut the samples

from which the DNA was extracted. Defendant‘s conviction is hereby

affirmed.

FACTS

On June 23, 1994, Defendant forced his way into the home of the forty-

four year-old victim, J.S., and forced her to perform oral sex on him. After

Defendant ejaculated on her, she wiped her face on her shirt. Defendant moved

J.S. into a closet in her bedroom, closed the door, and moved a large chest of

drawers and a bed in front of the door. Defendant took J.S.‘s purse, stole her

car, and fled the scene.

J.S. was unable to pick out Defendant from a photo lineup on November

24, 2008, more than fourteen years after the attack. At trial, however, she

testified she did not know how she did not identify him from the lineup because

his identity was so obvious to her at trial. She recognized ―[t]hat round head

and those sunken eyes,‖ ―that smirky look on his face,‖ ―[a]nd the size of him‖

with ―not a shadow of a doubt‖ when she saw him in person.

At trial, J.S. identified the shirt she was wearing at the time of the attack.

The shirt, when exhibited at trial, contained holes that had been cut in it that

were not present when J.S. last wore it. The evidence revealed that, in 1994,

Arthur Young, of the Acadiana Crime Lab (ACL), had cut out pieces of the

shirt which appeared to contain semen stains. The cuttings were stored as

evidence in the case and were later submitted for DNA testing. Eventually, the

DNA profile generated from the cuttings was matched to Defendant, and he was

implicated in this crime.

As his sole assignment of error in this appeal, Defendant contends the

trial court violated Defendant‘s constitutional right to confront witnesses by

allowing DNA evidence to be introduced without Mr. Young‘s testimony. For

the following reasons, we find no merit to this assignment of error.

EVIDENCE

Carolyn Booker, forensic DNA analyst and administrator of the

Combined DNA Index System (CODIS) database at the Acadiana Crime Lab

in New Iberia, testified CODIS ―contains DNA profiles from evidence and from

individuals.‖ DNA profiles of individuals convicted of felony offenses in

Louisiana are entered into CODIS. Also entered are the DNA profiles

generated from physical evidence recovered at the scene of a crime. Searches

are performed using the database ―in order to solve unsolved cases‖ by

matching the DNA evidence.

When a serial killer appeared in Louisiana in 2002 and 2003, ACL and

the State Police Lab received a grant from the Louisiana Legislature to review

―old unworked sexual assaults‖ in an effort to find a living victim of the

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murderer.1 ACL went through its files of unsolved crimes back to 1986 that

―had evidence or a potential for evidence to get a DNA profile.‖ ACL out-

sourced approximately three hundred of the cases. When the work was

completed, ACL reviewed the DNA profiles generated and entered them into

CODIS.

When ACL gets a ―hit‖ or a match on a profile it has entered into

CODIS, Ms. Booker notifies the State Police Lab that ACL is interested in

knowing the name of the convicted felony offender associated with the database

number. The State Police Lab then retests its sample to verify that the same

profile is generated. If it is, ACL is given the name, and ACL provides the

name to the law enforcement agency that submitted the case. That agency

obtains a new sample from the individual, and ACL works it to make sure it

generates the same DNA profile. ACL does not rework the initial sample

obtained from the victim.

Each case submitted to ACL by a law enforcement agency is assigned a

number. When a sample comes into ACL and a number is assigned, the

evidence custodian puts a chain of custody form with it and both are stored in a

vault. The sample is assigned to a technician, such as Arthur Young, and a

chemist. At some point, the technician does a preliminary examination of the

sample; if there is anything to be removed or obtained from the item, the

technician cuts it out and stores it ―for now and perpetuity.‖ Only cuttings are

saved; the original items are returned to the submitting agency.

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The serial killer was later identified as Derrick Todd Lee, who was convicted
through DNA evidence and sentenced to death. State v. Lee, 05-2098 (La. 1/16/08), 976
So.2d 109, cert. denied, 555 U.S. 824, 129 S.Ct. 143 (2008).

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One of the items selected for analysis as a result of the Derrick Todd Lee

case was a semen stain from J.S.‘s shirt. Cuttings from the shirt had been taken

by Mr. Young of ACL in 1994, given case number 94-2195, and stored until

Ms. Booker sent them to DNA Reference Laboratories (DRL) in San Antonio,

Texas for workup in J.S.‘s unsolved case. Mr. Young‘s work, which did not

involve DNA testing, was done before Ms. Booker and George Schiro, the

DNA technical leader at ACL, were employed there.

Dr. Nasir Butt of DRL personally examined the cuttings from 94-2195

and generated a DNA profile that he subsequently submitted to ACL. The

examination included an analysis that detected the presence of seminal fluid.

Dr. Butt was confident the profile was accurate and scientifically valid. Mr.

Schiro entered into CODIS the profile generated by Dr. Butt. The CODIS

system indicated ―a match or a hit‖ with ―an individual in the [CODIS] data

base‖ who was initially identified by a number.

Pursuant to this match, on September 30, 2004, Detective Bobby Howard

of the Lafayette City Police Department obtained a search warrant for

Defendant‘s blood sample. James Coley, a medical laboratory technician, drew

Defendant‘s blood at the Louisiana State Penitentiary in Angola. Mr. Coley‘s

practice was to verify a donor‘s identity, collect the sample, label it in the

donor‘s presence, and place it in a sealed, tamper-proof container. He testified

he collected Defendant‘s blood sample according to the protocol for seizing

DNA evidence.

Mr. Schiro analyzed the blood stain card, made from Defendant‘s blood

sample and assigned ACL number 04-4883, for DNA. He knew a CODIS

match had been made with the sample from ACL number 94-2195. He

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specifically looked to see if the blood from 04-4883 showed the same DNA

profile as 94-2195. Mr. Schiro had a lot of confidence in the CODIS match

―[b]ased on the quality control that is in place for that system,‖ but he did not

accept it without his own analysis. He found ―[t]he DNA profile obtained from

the – the shirt matched the DNA profile obtained to – to the reference blood

sample of [Defendant].‖ He then determined ―[t]o a reasonable degree of

scientific certainty, [Defendant] was the source of the – of the DNA from the

sperm fraction in that piece of shirt.‖

When Mr. Schiro testified at trial about the cuttings Mr. Young had

taken, Defendant‘s counsel moved to exclude any testimony about ―anything

done on that shirt.‖ He argued Mr. Young identified semen on the shirt and

performed ―the basic testing, the basic work on this whole case‖ and was

―integral to any testimony.‖ The trial court ruled ―individuals need not be

present for purposes of establishing‖ ―the chain of custody, the authenticity of

the sample, and the accuracy of the device,‖ based on the Supreme Court‘s

decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527

(2009).

ANALYSIS

The Sixth Amendment to the United States Constitution entitles

Defendant to confront witnesses who bear testimony against him. Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). ―‗Testimony[]‘ is ‗[a] solemn

declaration or affirmation made for the purpose of establishing or proving some

fact.‘‖ Id. at 1364 (citation omitted). ―The Sixth Amendment does not permit

the prosecution to prove its case via ex parte out-of-court affidavits[]. . . .‖

Melendez-Diaz, 129 S.Ct. at 2542. Surrogate testimony ―introduc[ing] a

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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[]‖ does not satisfy the Confrontation Clause.

Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 2710 (2011).

Here, testing confirmed J.S.‘s testimony that she wiped Defendant‘s

semen on her shirt. Testimony about those tests, the profiles they generated,

and the resulting DNA matches established and proved the facts. The tests, and

the testimony about them, provided evidence against Defendant, not the act of

cutting fabric which Mr. Young suspected to contain semen. Mr. Young made

no ―certification‖ to the court by clipping samples later subjected to tests, and

his actions cannot be equated with the ―‗core class of testimonial statements‘‖

envisioned by Melendez-Diaz and intended to prove a particular fact. 129 S.Ct.

at 2532. The cutting of the samples merely preserved the basis for the tests and

profiles that eventually provided the evidence against Defendant. ―[I]t is not

the case, 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.‖ Id. n.1.

In the course of the investigation of this crime, Mr. Young simply

identified stains he suspected to be semen and preserved those samples

according to ACL‘s protocol. Years later, Dr. Butt confirmed Mr. Young‘s

suspicion and independently identified seminal fluid on the cuttings Mr. Young

had collected. Dr. Butt offered the testimonial statement at trial that he

developed a DNA profile from the cuttings. Ms. Booker offered the testimonial

statement that the profile developed by Dr. Butt matched a DNA profile that

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CODIS identified as belonging to Defendant. Mr. Schiro offered the

testimonial statement that the blood sample given by Defendant in 2004, in

response to the CODIS match, showed the same profile developed by Dr. Butt.

All of these witnesses crucial to Defendant‘s identification – Dr. Butt, Ms.

Booker, and Mr. Schiro – testified at trial and were subject to Defendant‘s

cross-examination. Their testimony satisfied the Sixth Amendment and

Crawford/Melendez-Diaz/Bullcoming requirement that testimonial statements

must be subject to cross-examination.

By contrast, in State v. Bolden, 11-237 (La.App. 3 Cir. 10/5/11), ___

So.3d ___, the same Mr. Arthur Young actually tested the evidence and

generated a DNA profile which was eventually matched to the defendant

Bolden. This court determined that if the State was allowed to use the results of

Young‘s work, then Young had to be made available for confrontation and

cross examination. Such is not the case herein.

Defendant‘s conviction and sentence are affirmed.

AFFIRMED.

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