{
  "id": 1365270,
  "name": "Alfredo Trejo MU\u00d1OZ v. STATE of Arkansas",
  "name_abbreviation": "Mu\u00f1oz v. State",
  "decision_date": "2000-01-27",
  "docket_number": "CR 99-432",
  "first_page": "218",
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          "parenthetical": "where this court distinguished Swanson, reversing the trial court for failing to grant Hunter a continuance when (1) Hunter's DNA expert had no chance to examine the State's evidence, procedures, and protocol, and (2"
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  "last_updated": "2023-07-14T17:52:11.293742+00:00",
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    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Alfredo Trejo MU\u00d1OZ v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "TOM Glaze, Justice.\nAppellant Alfredo Trejo Mu\u00f1oz brings this appeal from a conviction of the rape of the three-year-old baby of Mu\u00f1oz\u2019s girlfriend, Michelle Araujo. We accepted the appeal from the court of appeals because the case involves the question of first impression as to whether an indigent criminal defendant has a right, under Ake v. Oklahoma, 470 U.S. 68 (1985), to have the State pay for an independent expert DNA analysis. Upon review of the case, we are unable to reach the merits of the question as certified because it was not properly preserved at trial.\nOn July 23, 1998, Mu\u00f1oz followed Michelle home from work in case her car ran out of gas. On the way home, Michelle picked up her baby at day care, went home, and temporarily left her baby with Mu\u00f1oz at Michelle\u2019s house while Michelle went to put gas in her car. When Michelle returned about ten or fifteen minutes later, the baby was upset and was having difficulty sitting on the couch. Mu\u00f1oz told Michdle that he had spanked the baby because she would not stop crying. Michelle noticed a stain on Mu\u00f1oz\u2019s jeans, which Mu\u00f1oz said was chocolate syrup. Later that evening after Mu\u00f1oz left, the baby went to her mother crying and said that her \u201cbutt was bleeding.\u201d She told Michelle that \u201cFredo spanked me.\u201d Michelle examined the baby\u2019s bottom and saw blood in her panties. Michelle asked her baby what Mu\u00f1oz had spanked her with, and the baby replied, \u201cHe spanked me with his weewee.\u201d Michelle then gathered the baby\u2019s clothing and took the child to the Washington Regional Medical Center. However, before Michelle had left her house, Mu\u00f1oz called her and instructed her to stay home, and if she was not there when he returned, \u201cyou know what will happen.\u201d Michelle proceeded to the Center\u2019s emergency room where a nurse assisted in performing a rape kit on the child. A doctor examined the baby and found peri-rectal lacerations consistent with penetration and which were suspicious for sexual abuse. While Michelle and her child were in the emergency room, Mu\u00f1oz was seen in his vehicle outside the Medical Center circling the parking lot. He was arrested and found to have a .22 rifle and lead pipe in his possession.\nOn the following day, July 24, Mu\u00f1oz was formally charged with rape. On July 27, he was arraigned, appointed counsel, and the prosecutor filed a motion for Mu\u00f1oz to give blood, saliva, semen, and hair samples. Mu\u00f1oz was taken immediately to the Medical Center, where the samples were obtained.\nOn November 6, 1998, Mu\u00f1oz obtained private counsel, who later, on December 8, moved to exclude all hair and bodily fluid samples taken on the day of arraignment. He contended that the samples had been taken before the court\u2019s July 27 order had been entered, and Mu\u00f1oz\u2019s counsel had not been afforded the opportunity to be present when the samples were taken. Mu\u00f1oz\u2019s new attorney also moved to exclude from the State\u2019s evidence the .22 rifle and lead pipe found in his possession when he was arrested. Finally, Mu\u00f1oz\u2019s counsel moved that, in order to prepare his defense, he needed a DNA expert to interpret the fluid tests, to give an independent analysis, and to testify at trial.\nOn December 14, two days before trial, the trial court heard Mu\u00f1oz\u2019s motions, and denied his three requests. The trial court refused to exclude the State\u2019s fluid tests because Mu\u00f1oz\u2019s counsel had agreed to the taking of Mu\u00f1oz\u2019s hair and fluid samples on July 27, the arraignment date. It further denied excluding the .22 rifle and lead pipe because those items were relevant to show consciousness of guilt. The trial court also denied the appointment of a DNA expert, finding his request was untimely. He further ruled that even if his motion had been timely, the court did not believe Ake required a DNA expert.\nOn December 15, 1998, Mu\u00f1oz moved for a continuance and retesting of forensic evidence, basing his motion on a new blood test that had been conducted by his expert, Captain Charles Rex-ford of the Washington County Sheriff\u2019s Department. Rexford ran a test on Mu\u00f1oz\u2019s jeans worn on July 24, 1998, and said three of his tests showed negative for the presence of blood and one test showed marginally positive for blood. The trial court denied the continuance request because Rexford had tested a different piece of the jeans than the State\u2019s experts had tested, and because the blood tests had nothing to do with the DNA analysis, which had been conducted from the semen taken from the baby\u2019s panties, her rectal swab, and Mu\u00f1oz\u2019s fluid samples.\nThe Mu\u00f1oz case proceeded to trial on December 16, when the State presented six witnesses and Mu\u00f1oz offered only one witness, Captain Rexford. The jury returned its verdict of guilty, and then the sentencing phase was conducted. During that phase, Mu\u00f1oz sought reassurance that his motion to exclude the weapons found in his possession, when he was arrested, had been ruled on. The trial court denied Mu\u00f1oz\u2019s motion, and the State introduced testimony of the .22 rifle and lead pipe during the sentencing phase. On appeal, Mu\u00f1oz only argues two points \u2014 the trial court erred (1) in refusing him the assistance of a DNA expert and (2) in allowing the weapons\u2019 evidence during the sentencing phase.\nIn addressing Mu\u00f1oz\u2019s first point for reversal, we must first consider the trial court\u2019s ruling that Mu\u00f1oz was too late in raising the question of whether he was entitled to the appointment of a DNA expert. Mu\u00f1oz was well aware that the State had taken fluid samples from him in July 1998, and the prosecutor indicated those lab results were obtained in August of 1998. And while Mu\u00f1oz complains that the prosecutor never objected to Mu\u00f1oz\u2019s failure to make a timely request for a DNA expert, the prosecutor very plainly stated Mu\u00f1oz\u2019s motion was tantamount to requesting a continuance, which the trial court should not grant. The trial court ruled it did not think Mu\u00f1oz\u2019s motion was timely, and it denied his motion.\nIn Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992), we held that the denial of a continuance which would deprive an accused of the chance to have an independent review of DNA analysis will be closely examined. See also Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994). In making such an examination in the present case, we cannot conclude the trial court abused its discretion in denying any continuance so a DNA expert could be appointed. As already noted above, the State\u2019s results from its test samples taken from Mu\u00f1oz were available in August of 1998, or approximately four months prior to the trial date of December 16, 1998. Nevertheless, Mu\u00f1oz waited until about one week before trial to request a DNA expert and did not obtain a ruling until two days before trial. Like the appellant in the Swanson case, Mu\u00f1oz had months to locate an expert witness and make a tentative arrangement for an independent review, yet Mu\u00f1oz could not offer the name of a potential expert witness, nor did he offer any hope of procuring the attendance of such a witness in the near future. Id. at 35; but see Hunter, 316 Ark. at 751, 875 S.W.2d at 66 (where this court distinguished Swanson, reversing the trial court for failing to grant Hunter a continuance when (1) Hunter\u2019s DNA expert had no chance to examine the State\u2019s evidence, procedures, and protocol, and (2) Hunter had located an expert, but could not take advantage of her expertise without being provided the State\u2019s information). In the circumstances before us, Mu\u00f1oz\u2019s motion was tantamount to a continuance request, and we cannot say the trial court abused its discretion denying his requests.\nWe next turn to Mu\u00f1oz\u2019s second argument wherein he claims the trial court erred in refusing to exclude evidence of the .22 rifle and lead pipe during the sentencing phase of his trial. Mu\u00f1oz submits that these weapons were \u201cother crimes\u201d evidence that was more prejudicial than probative. However, Mu\u00f1oz abstracts very little of the testimony presented at either the guilt or sentencing phase. Nonetheless, as we set out above, the record reflects that Mu\u00f1oz told Michelle on the evening the offense took place that she \u201chad better be home when he got there or else,\u201d and related to that threat, he was found that evening, with the weapons in his car, circling the hospital. The trial court concluded that such actions by Mu\u00f1oz were relevant since they indicated a consciousness of guilt. We hold the trial court did not abuse its discretion.\nFor the reasons above, we affirm.\nMuch of what we relate that occurred on July 23 and the following day has not been abstracted, and since we affirm this appeal, we have gone to the transcript so the reader will have sufficient information to understand what led to the filing of felony charges against Mu\u00f1oz.",
        "type": "majority",
        "author": "TOM Glaze, Justice."
      }
    ],
    "attorneys": [
      "Longino & Morton, by: George B. Morton and James H. Longino; R. Charles Wilkins III, Rule XV, for appellant.",
      "Mark Pryor, Att\u2019y Gen., by: Sandy Moll, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Alfredo Trejo MU\u00d1OZ v. STATE of Arkansas\nCR 99-432\n9 S.W.3d 497\nSupreme Court of Arkansas\nOpinion delivered January 27, 2000\nLongino & Morton, by: George B. Morton and James H. Longino; R. Charles Wilkins III, Rule XV, for appellant.\nMark Pryor, Att\u2019y Gen., by: Sandy Moll, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0218-01",
  "first_page_order": 246,
  "last_page_order": 251
}